Ying Fung Distillery Ltd v. Kin Hing Godown Ltd

Case No.HCA 3540/1977

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA003540/1977

IN THE HIGH COURT OF JUSTICE

1977 No. 3540

BETWEEN
	YING FUNG DISTILLERY LIMITED	Plaintiff
	AND
	KIN HING GODOWN LIMITED	Defendant

Coram: Li, J. in Court

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JUDGMENT

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1. The Plaintiff is the registered owner of the Ying Fung Distillery Industrial Building situated at 26-38 Ta Chuen Ping St., Kwai Chung, New Territories. The 1st Defendant is the tenant and principal tenant of the premises known as the 6th floor of the Sung Ling Industrial Building situated at 40-42A of the same street in Kwai Chung. The two buildings adjoined one another though separated by their respective outer walls. The 6th floor of the Sung Ling Building is approximately half way above the height of the roof of the Ying Fung Building in that the 6th floor of the Sung Ling Building is half a floor higher than the roof of the Ying Fung Building. In 1977 the 1st Defendant caused 6 holes to be opened on the outer wall near the ceiling of the 6th floor of the Sung Ling Building adjacent to the Ying Fung Building. These holes were opened not only on the wall of the Sung Ling Building but also penetrated the parapet wall of the roof of the Ying Fung Building. Hence this action.

2. The Plaintiff's case is that these holes were opened without its consent, in particular without the consent of its Managing Director Mr. Szeto Chiu. Sometime in October when it was discovered that 3 holes had been opened there was a dispute between its Managing Director, Mr. Szeto, and that of the 1st Defendant, Mr. Leung Tak-chung. As a result a constable was called from the police station. Mr. Leung in the presence of the police constable agreed to cover up the holes and restore the Plaintiff's parapet wall to its original condition. A statement was recorded by the constable to this effect. However, Mr. Leung never honoured his words despite repeated requests. The 1st Defendant failed or refused to cover up the 3 holes in October. To aggravate the matter, 3 more holes were opened on 5th December, 1977 making a total of 6 of them. The Plaintiff issued the writ on the 7th day of December last year asking for a declaration that the Defendant whether by itself, servant agent or otherwise was not entitled to trespass onto the part of the Plaintiff's building, namely, the Ying Fung Building by opening any part of the roof top parapet wall of the said building. The Plaintiff also claimed for an injunction to restrain the Defendant whether by itself, servant agent or otherwise from breaking or opening, maintaining or causing to be broken or opened any hole on the parapet wall of the roof or causing any further holes to be opened. The Plaintiff also asked for a mandatory injunction that the Defendant should forthwith cause all the necessary repair work to be done to remedy any damage so far caused on the said parapet wall of the Ying Fung Building. The Plaintiff asks also for damages.

3. The defence of the 1st Defendant is that the holes were in fact opened on that part of the parapet wall which is an illegal structure built without the consent of the Building Office. The second line of defence is that the Plaintiff had given its consent through the landlord of the Sung Ling Building, Mr. Hui Cheung-lam. The defence also alleges that no damage has been caused to the Plaintiff by opening such holes and if any damage were caused such damage is minimal and the Plaintiff is entitled only to nominal damages. Lastly the defence pleads that the holes are the only outlet for the 6th floor of Sung Ling Building to obtain ventilation.

4. In July this year the 2nd, 3rd and 4th Defendants applied and obtained leave to be joined as Defendants. A defence has been filed by these three additional Defendants in August this year. By their defence they all allege themselves to be sub-tenants of various parts of the 6th floor in the Sung Ling Building with a sub-lease for a period of 2 years granted by the Managing Director of the 1st Defendant. The gist of their defence is the same as that of the 1st Defendant's. They all allege that they have expended money for the decoration and setting up of machinery on the 6th floor of the Sung Ling Building and that the only means of ventilation for their respective units are those holes and that if the holes are covered up they will suffer irreparable damage. Thus, as far as the Plaintiff's claim for an injunction is concerned, it is possible to deal with the cases of all the Defendants together.

5. Having heard the evidence of all the parties concerned I have found the following facts:-

The 1st Defendant has been the principal tenant of the 6th floor of the Sung Ling Building since 1972. Mr. Leung Tak-chung is the Managing Director of the 1st Defendant. As long ago as 1972, 2 big holes had been opened through the wall of the Sung Ling Building onto the parapet wall of the Ying Fung Building. This happened well before the 2nd, 3rd and 4th Defendants came into the picture. At that time, Mr. Szeto Chiu found that the workers on the Sung Ling Building side were able to go through those holes onto the roof top of the Ying Fung Building thereby making use of the roof top of the Ying Fung Building as recreation ground or as a work place. As a result, there had been bad blood between Mr. Szeto and Mr. Leung. Eventually the 2 holes were sealed up. Mr. Szeto then caused the parapet wall on the roof of the Ying Fung Building to be raised by three feet higher. The object of this exercise was to make sure that the parapet wall would reach the same level as the ceiling of the 6th floor of the Sung Ling Building. Admittedly Mr. Szeto built such parapet wall without the prior approval of the Building Office. However, since the issue of the writ the position had been regularized and the Building Office had rectified the position by granting approval for the parapet wall to be raised to the present height. The 1st Defendant's lease for the 6th floor of Sung Ling Building expired sometime by the end of August, 1977. At one time one Hui Hon who was a friend of Mr. Szeto of the Plaintiff's had the prospect of obtaining the lease of that floor of the Sung Ling Building. Mr. Hui Hon approached Mr. Szeto to ask for permission to open some holes on the 6th floor of the Sung Ling Building through the parapet wall of the Ying Fung Building. To this request, Mr. Szeto readily gave his consent to Mr. Hui Hon for friendship. However, Mr. Leung of the 1st Defendant finally succeeded in outbidding Mr. Hui Hon and obtained a renewal of the lease for 3 years commencing on 1st September, 1977. The reason why Mr. Leung was able to outbid Mr. Hui Hon by offering a substantially higher rental to the landlord for the 6th floor of the Sung Ling Building was that he conceived the idea of carving out the 6th floor into small units to be sublet to various sub-tenants. In so doing, some of the units on that floor would have no ventilation except by boring a hole through the adjacent wall to the parapet wall of the roof of the Ying Fung Building and installing exhaust fans. He did ask Mr. Hui Hon to approach Mr. Szeto for permission to bore those holes sometime in September/October 1977. This was refused by Mr. Szeto. The reason is obvious. The foundation of the fence was laid as long ago as 1972.

6. I also find as a fact that Mr. Szeto's refusal had been conveyed to Mr. Leung. Despite this on 27th October Mr. Leung saw fit to bore 3 holes from the 6th floor of the Sung Ling Building through the parapet wall of the Plaintiff's roof top. As a result of this there was a confrontation between Mr. Szeto and Mr. Leung. A constable was called and Mr. Leung agreed to stop boring the holes and take full responsibility in the matter. This was recorded in the notebook of constable Wong Ying-keung and produced as Exhibit 6.

7. In the course of the argument in the presence of Wong Ying-keung, Mr. Szeto made it quite clear that he wanted the 3 holes to be covered up with bricks and restored to the former condition. Mr. Leung agreed to that. Hence the record in Exhibit 6. However, Mr. Leung did not honour his words. Not only that he did not do so but sometime early in December of the same year he bored 3 more holes onto the parapet wall of the roof making a total of 6. At all material times Mr. Szeto never gave any permission to Mr. Leung to bore any hole on the parapet wall.

8. I come to the aforesaid findings after I have considered carefully the evidence adduced by the Plaintiff as well as that by the Defendant. I accept in particular Mr. Szeto Chiu's evidence as true. Mr. Leung Tak-chung does not impress him as a truthful witness. He said that he had obtained Szeto Chiu's consent with regard to boring the holes. His evidence in this respect has not been corroborated by any other evidence. He certainly has not call Hui Chung-lam to give evidence in support of his claim of obtaining consent. There is certainly no evidence except his own to support the proposition that consent had been given. Judging from his demeanour and his answers to cross-examination he appears to me to be the type of person who has his own advantage and financial gain in mind with total disregard of other people's rights or feelings. His evidence is certainly contradicted in some way by his fellow defendants namely, the 2nd and the 3rd Defendants. When he applied to be joined as a defendant, the 2nd Defendant filed an affirmation saying that at the time when he took the lease there was no hole in his unit in existence. In his evidence in cross-examination and in examination in chief, he said that there was already a hole to the wall in the unit when he entered as a sub-tenant in November, 1977. In cross-examination he admitted that his rent was originally $1,400 per month but reduced by $100 to that of $1,300 per month for the sub-tenancy. He had signed a lease for three years setting out the rent to be $1,400 per month. The 2nd Defendant said the reduction in rent was due to Mr. Leung's effort to keep rent to same level of the market value of industrial flats generally. Having regard to such evidence my interpretation of the whole arrangement is that the rental was reduced in consideration of the 2nd Defendant applying to be joined as one of the defendants. One of the reasons he can apply to be joined as a defendant is to pretend that he was originally one of the parties who insisted on a hole being bored on the parapet wall. His affirmation and his evidence taken as a whole are inconsistent by themselves and certainly conflicting with the evidence of that of Leung Tak-chung. However, I accept the 2nd Defendant's evidence to the extent that if the holes were covered then he would have difficulty in obtaining ventilation for his industrial unit. The 3rd Defendant gives similar evidence. He says that when he signed the lease there was no glass or any bar to the hole in his unit. He said that there was a hole. This evidence contradicts Leung Tak-chung's own evidence when he said that, after the dispute in October, he put in some glass and iron bars to all the holes that he had bored. The 3rd Defendant also gives evidence as to hardship for lack of ventilation if the holes were covered up. In cross-examination he says that if a central machine were installed to expel the heat and the exhaust air then it will be satisfactory. The 4th Defendant never gives evidence. He left Hong Kong to go abroad knowing fully well that the case was coming up for trial. As such, learned counsel for the 4th Defendant applied to read his affidavit in lieu of evidence. The evidence as disclosed in the affidavit which was filed for the purpose of applying to be joined as a defendant is of limited value. There has been no cross-examination. In his evidence the 4th Defendant indicated that he was a party who required Leung Tak-chung to open up the hole as recommended and approved by the Labour Department. He also referred to the hardship he would suffer if the hole were to be closed. In short, my findings is that the culprit for opening up all the holes through the parapet wall on the roof of Ying Fung Building was Leung Tak-chung from beginning to end. In so doing Leung Tak-chung never obtained the consent by the Plaintiff. He did it solely for his personal gain with blatant disregard of other people's proprietary rights. The 2nd, 3rd and 4th Defendants joined him solely as a matter of convenience. They applied to be joined as defendants so as to emphasize the question of hardship in the hope that by so doing this court will refuse the Plaintiff relief on balance of convenience.

9. Having come to the aforesaid conclusion the only question to be considered is whether an injunction should issue and if so in what form. In this connection I can dispose of the defence that the parapet wall of the roof being an illegal structure very quickly. The illegality of the structure has since been rectified. In any event, it is a matter between the Building Office and the Plaintiff. The Building Office has no valid objection to the wall being raised a few more feet in height. Even if the wall were illegal it is still the Plaintiff's property. The Defendants are not entitled to bore holes in it without the Plaintiff's consent. The real question to be considered is one of harship and balance of convenience.

10. In this connection a fair number of authorities have been cited to me. I shall begin with the case of Redland Bricks Ltd., v Morris and Another reported in 1970 Appeal Cases 652. Lord Upjohn setting out the guiding principles for the exercise of the court's discretion in granting injunctions at page 665 said as follows:-

"The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be "as of course." Every case must depend essentially upon its own particular circumstances. Any general principles for its application can only be laid down in the most general terms:

	1.	A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say "timeo." [Attorney-General for the Dominion of Canada v Ritchie Contracting and Supply Co. [1919] A.C. 999, 1005, P.C.]. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.
	2.	Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity; it has nothing to do with Lord Cairns' Act or Shelfer's case [1895] 1 Ch.287.
	3.	Unlike the case where a negative injunction is granted to prevent the continuance or recurrence of a wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:

	(a)	where the defendant has acted without regard to his neighbour's rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. As illustrative of this see Woodhourse v Newry Navigation Co. [1898] 1 I.R. 161;
	(b)	but where the defendant has acted reasonably, though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity.

11. The amount to be expended under the Mandatory Order by the Defendant must be balanced with possible damage to the Plaintiff. Of course the Court does not have to order such work. Sargant J. pointed this out in effect in the celebrated moving mountain case in Kennard v Cory Brothers & Co., Ltd., 1922 1 Ch. 265 at page 274. His judgment was affirmed in the Court of Appeal in 1922 2 Ch. 1. If in the exercise of discretion the court decides that it is a proper case to grant a mandatory injunction the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact. At page 667 he said:-

"My Lords, I shall apply these principles or conditions to this case, and I can do so very shortly.

	1.	As a matter of expert evidence supported by the further slip of land during the hearing it is obvious that this condition, which must be one of fact in each case, is satisfied and, indeed, is not disputed.
	2.	Damages obviously are not a sufficient remedy, for no one knows whether any further damage will occur and if so, upon what scale - upon the expert evidence it might be very substantial.
	3.	The appellants have not behaved unreasonably but only wrongly. Upon the facts of this case the judge, in my opinion would have been fully justified in imposing upon the appellants an obligation to do some reasonable and not too expensive works which might have a reasonable chance of preventing further damage. He did not do so and it is not surprise that in the county court this was not further explored. Alternatively he might have given leave to apply for a mandatory injunction.
	4.	But in making his mandatory order in my opinion the judge totally disregarded this necessary and perfectly well settled condition. The terms of the order imposed upon the appellants an absolutely unqualified obligation upon them to restore support without giving them any indication of what was to be done. The judge might have ordered the appellants to carry out the remedial works described by the respondents expert in his evidence though it would have to be set out in great deal. I could have understood that, but as it was thought to cost ?,000 that would have been most unreasonable and would have offended principle 3, but the order in fact imposed went much further; it imposed an unlimited and unqualified obligation upon the appellants, and I do not know how they could have attempted to comply with it. The expenditure of the sum of .?,000 which I have just mentioned would not necessarily have complied with it for though it would in all probability have prevented any further damage it was not guaranteed to do so and that is what in effect the mandatory order of the learned judge required. My Lords, in my opinion that part of the order of the county court judge cannot stand and the appeal must be allowed."

12. It appears that in that case the appeal was allowed and the mandatory order was set aside because the county court judge failed to consider the enormous sum required to prevent a possible future wrong and also failed to set out clearly in the terms of the order what the Appellant was to do in order to prevent the future wrong. Another point for consideration was the Appellant in that case did not act wantonly or unreasonably. Applying the principles to the present case, it will be observed that the act undertaken by the 1st Defendant in October and December 1977 in boring holes to the parapet wall of the Plaintiff's building constitute an act of trespass. This is not only a wrong but a continuing wrong so long as the holes remain there. That satisfies the first condition.

13. To permit such holes to exist is practically licensing a continuous wrong. Damage is not the only consideration. If this wrong is not remedied, then in the years to come the Defendants may acquire a prescriptive right. There is no undertaking on the part of the Defendant as not to acquire an easement over the Plaintiff's property. The present case can be distinguished from the case of Sharp v Harrison in 1922 1 Ch. 502. In that case the defendant in breach of a negative convenant opened a window with frosted glass overlooking a lane opposite to the plaintiff's lavatory. However, a mandatory order was refused for reasons that the defendant could prove that there was no depreciation in value on the plaintiff's property and that there was some element of delay on the part of the plaintiff. Justice Astbury said at page 515 of his judgment as follows:-

	"Now in the present case I am quite aware that it is not open to the defendant to bargain in invitum with the plaintiff for purchasing the right to commit, and to continue the commission of this breach, but there is this substantial difficulty in the way of granting a mandatory order. The flat in which this window is situated has been let on a lease to a person not a party to this action for a term of five years. It is absolutely impossible to disregard that fact. The plaintiff says that the lease may have been taken with notice of the convenant and notice of the breach. Well, anything may have happened. There is no evidence at all of the circumstances in which it was taken, and no questions were asked in cross-examination about it.
	Again, although the plaintiff's surveyor took objection to this window, he did allow this building to proceed from some date early in April until June 28, when the wall was cut for the window, without taking any steps to stop the alterations then in progress. He knew perfectly well that those alterations involved the putting in of this window. He stated in the box that he supposed or thought that the defendant might alter her plans for the construction of her flats. He had no right to think anything of the kind. He never asked a question about it. He had no reason to suppose that the alterations were not proceeding in pursuance of the plans which had been furnished to him from the commencement, and he did in a sense stand by and allow these alterations to be made, although he from time to time objected to this window, and asked for money in respect of some portion, at all events, of these alterations, and tried to induce the defendant to purchase the plaintiff's house."

14. Now if the defendant were to give no undertakings at all, I still think that no substantial damage would be inflicted upon the plaintiff. It is said that there might be a serious thing for an easement to be obtained for this window. The defendant already has two other windows in the same wall, which would, or probably would, interfere as much with the plaintiff's alteration of his premises as the window complained of. But in any case, the plaintiff can prevent the obtaining of any easement even if the defendant desire to obtain one which is not the case.

15. The fact of the present case is very different. The Plaintiff in the present case had objected and taken steps to stop the Defendant from boring holes to the parapet wall. Right from the beginning he went to the extent of calling in the police. The 1st Defendant, indeed none of the Defendants, gave any undertaking or even offer to give an undertaking as to not to acquire an easement over the roof top of the Plaintiff's building. The breach of convenant in the Sharp's case constituted no act of trespass. It was more in the from of a nuisance. However, in the present case there is a definite act of trespass on the part of the Defendants.

16. When one comes to consider the conduct of the 1st Defendant's in the present case, one can only observe that the 1st Defendant behaved in a most unreasonable manner. When the 1st Defendant started to open the first 3 holes on the parapet wall the Plaintiff objected in the most emphatic terms. A police officer was called in and in the presence of the police constable the 1st Defendant admitted that it was a misunderstanding that he had obtained the consent of the Plaintiff's to open up those holes. Later, he agreed to be responsible which I interpret as an agreement to stop boring holes altogether and restore the parapet wall to its status quo. The 1st Defendant went back on his words. He committed further act of trespass with a view to benefit himself. That is so because by so doing he could carve out his 6th floor in Sung Ling Building to sublet to various tenants and obtain a good return for the rent he paid as a principal tenant. In fact, the 1st Defendant could have provided alternative means of ventilation for his sub-tenants without having to bore holes into the parapet wall of the Plaintiff's building. Of course the method he hitherto adopted would be the cheapest way of providing ventilation for his sub-tenants. The closing up of the holes in the parapet wall does not cause the 1st Defendant very much money. In this respect the present case is very different from the case of Wrotham Park Estate v Parkside Homes in 1974 2 All E.R. page 321. In that case a mandatory order to pull down some houses built in breach of a negative convenant was refused. The reason for refusal is apparent in Mr. Justice Brightman's judgment. At page 337 he said:-

"Counsel for the plaintiffs submitted, and I accept, that it is no answer to a claim for a mandatory injuction that the plaintiffs, having issued proceedings, deliberately held their hand and did not seek the assistance of the court for the purpose of preserving the status quo. On the other hand, it is, in my view, equally true that a plaintiff is not entitled 'as of course' to have everything pulled down that was built after the issue of the writ. The erection of the houses, whether one likes it or not, is a fait accompli and the houses are now the homes of people. I accept that this particular fait accompli is reversible and could be undone. But I cannot close my eyes to the fact that the houses now exist. It would, in my opinion, be an unpardonable waste of much needed houses to direct that they now be pulled down and I have never had a moment's doubt during the hearing of this case that such an order ought to be refused. No damage of a financial nature has been done to the plaintiffs by the breach of the layout stipulation. The plaintiffs' use of the Wrotham Park estate has not been and will not be impeded. It is totally unnecessary to demolish the houses in order to preserve the integrity of the restrictive covenants imposed on the rest of area 14. Without hesitation I decline to grant a mandatory injunction. But the fact that these houses will remain does not spell out a charter entitling others to despoil adjacent areas of land in breach of valid restrictions imposed by the conveyances. A developer who tries that course may be in for a rude awakening."

17. A mandatory order in the present case should be fairly straightforward as far as compliance is concerned. All that is necessary is for the direction that the 1st Defendant and the other Defendants should plug up the holes in the Plaintiff's parapet wall.

18. Finally I would like to refer to the case of Woollerton and Wilson Ltd., v Richard Costain Ltd., reported in 1970 1 Weekly Law Reports 411. In that case the defendants who were building contractors installed a tower crane on a building side. When the wind was in a certain direction, the crane's jib overhung the plaintiffs' premises 50 feet above its roof level. The plaintiff complained about trespass of the air space. The defendants admitted the trespass but as the removal of the tower crane would delay the building operation and the job would have to be replanned, it was impractical for them to remove it and they expressed their intention of continuing the trespass. The plaintiffs did not claim that the crane caused a nuisance or that it incommoded them in any way or that they were in any fear or apprehension. The defendants offered the plaintiffs a substantial sum of money for the right to intrude into their air space but the negotiations proved to be abortive. The plaintiffs then applied for an interlocutory injunction. In the circumstances, Mr. Justice Stamp, as he then was, held that as the trespass had caused no damage, the plaintiffs' only effective remedy was an injunction. He observed that since the Defendant had threatened to continue the trespass, the court would exercise its discretion and grant the plaintiffs an interlocutory injunction. He also observed that since the defendants had offered the plaintiffs a substantial sum of money in compensation, the plaintiffs, at the start of the action, were not in the position of a plaintiff whose only remedy other than an injunction was nominal damages that as the air space had only assumed value by reason of the defendants' practical necessity to continue to use the crane and that the Defendants had not acted in flagrant disregard of the plaintiffs' proprietary rights, the injunction would be postponed until the defendants were given enough time to complete the building. I observed that while the Redland Bricks Ltd.,'s case was decided by the House in May 1969, the Woollerton's case was decided in November, 1969. Thus despite the principle as laid down by the House of Lords relating to mandatory orders to prevent future possible wrongs the courts had no hesitation in granting a mandatory order to prevent an act of trespass and a continuing wrong. Apart from the legal authorities, there is the factual and practical side in this matter. In the writ of summons the Plaintiff asked for:-

	(1)	a declaration that the Defendants, by self agents and otherwise, is not entitled to trespass on the part of the Plaintiff's building known as the Ying Fung Building or otherwise opening any part of the rooftop of the parapet wall of the said building or any part thereof;
	(2)	An injunction restraining the Defendants whether by itself its servants or agents howsoever from breaking and opening or maintaining or causing to be broken or opened any hole on the rooftop parapet wall of the Plaintiff's said building or any part thereof;
	(3)	An injunction restraining the Defendants whether by itself, its servants or agents howsoever otherwise from causing any further holes to be opened on the parapet wall of the Plaintiff's said building or any part thereof;
	(4)	An order that the Defendants thus forthwith cause all necessary repair work to be done to remedy any damage so far caused on the said parapet wall of the Plaintiff's said building or any part thereof;
	(5)	Damages;
	(6)	Cost.

19. It will be observed that once I have found that there had been an act of trespass and that wrong been done to the Plaintiffs para. (1) of the Prayer must succeed.

20. As to paras. (2) and (3) of the Prayer, they ask for a negative injunction. As such it should be granted. Only para. (4) of the Prayer that asks a mandatory injunction. Even if I refuse this relief to the Plaintiff, once paras. (1), (2) and (3) of the Prayer have been granted there is nothing to bar the Plaintiff from resorting to self help by shutting up all the holes that had been opened on the parapet wall. The conduct on the part of the Plaintiff has at least this to command in that they rather ask for an order from this court than to resort to self help. The Plaintiff is clearly entitled to a mandatory injunction. I can see no good reason why such an order should be refused. As to damages the Plaintiff's Managing Director, Mr. Szeto, frankly admitted that no financial damage had been caused to the Plaintiff by the opening of such holes. Although a wrong had been committed against the Plaintiff all the Plaintiff is entitled to is a nominal sum in the form of damages. Further, some difference must be made between the 1st Defendant and the other 3 Defendants. I have found that the 1st Defendant deliberately committed the act of trespass for gain. The other 3 Defendants joined in as a matter of convenience. The other 3 Defendants applied to be joined as Defendants solely to assist the 1st Defendant and to enable themselves to take advantage of the 1st Defendant's act of trespass. The nominal damages payable should be paid by the 1st Defendant alone. The other 3 Defendants have paid their way in the form of higher rent they were willing to pay to the 1st Defendant.

21. For the aforesaid reasons I give judgment against the 1st Defendant in terms of paras. (1), (2), (3), (4), (5) and 6 of the Prayer in the statement of claim. The 1st Defendant must compensate the Plaintiff in that its Managing Director had to get the assistance of the police and to take steps to prevent the earlier act of trespass in October. I assess damages claimed in para. (5) against the 1st Defendant in the sum of $200. To the 2nd, 3rd and 4th Defendants, there be judgment against them in terms of paras. (1), (2), (3), (4), and (6) of the statement of claim.

22. Obviously the Plaintiff cannot recover four sets of costs. I shall apportion that the costs be borne by the 4 Defendants in the following proportions:-

23. The 1st Defendant two-thirds of the Plaintiff's cost;

24. The balance of the one-third of the Plaintiff's cost

is to be borne by the 2nd, 3rd and 4th Defendants in equal proportions.

	Simon F.S. Li
	Judge

Representation:

Mr. G. Rodway (Yu, Tsang & Loong) for Plaintiff

Mr. W. Lane (King & Co.,) for 1st Defendant

Miss H.C. Wong (Lau & Co.,) for 2nd and 4th Defendants