Wong Chong Kwai Yin v. Tang Lan Fong and Another

HCA 939/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 939 OF 2005

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BETWEEN

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Before: Hon Lam J in Chambers

Date of Hearing: 27 May 2005

Date of Decision: 27 May 2005

Date of Handing Down Reasons for Decision: 3 June 2005

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REASONS  FOR  DECISION

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1.The Plaintiff claimed to have a good title by way of adverse possession on several pieces of land in the New Territories. She occupied those properties herself. Whether that claim can be made good will have to be litigated in this action. The present application concerns incidents happened on 20 May 2005  which caused the Plaintiff to concern about her personal safety. She made a report to the police but no effective action could be taken by them. She therefore moved to live with her daughter for the time being and sought injunctive relief from the court.

2.The injunctive relief were sought against the 1^st and 2^nd Defendants because the Plaintiff alleged that they were the ones who procured the incidents to happen. Ex parte injunction was granted by Tong J on 21 May 2005.

3.At the inter parte hearing, the 1^st Defendant denied that she had procured such acts. However she was willing to give an undertaking to the court that she would not, whether by herself, her son and daughter or other servants or agents, assault, harass, threaten or intimidate the Plaintiff. That was acceptable to the Plaintiff. The injunction against the 1^st Defendant was therefore discharged.

4.The 2^nd Defendant refused to give a similar undertaking. Instead, through his counsel, he applied for the injunction to be discharged. Mr Lai contended that there is no serious question to be tried as far as the case against the 2^nd Defendant is concerned. After hearing submissions, I dismissed the application to discharge the injunction by the 2^nd Defendant and continued it on revised terms. I now give reasons for my decision.

5.The land which the Plaintiff alleged to have been in exclusive possession included Lots Nos 1970, 1972, 1976 and 1978 of Demarcation District No.116. The registered owner of those Lots is the 2^nd Defendant. The 2^nd Defendant acquired the Lots from the 1^st Defendant by an assignment dated 1 February 2002. The 1^st Defendant was however never a registered owner of the Lots. Instead, she obtained a declaration on 28 October 1999 from a Master in High Court Action No.10749 of 1999 that the right of the then registered owners to recover the Lots had become statute barred and their title had been extinguished under Sections 7(2) and 17 of the Limitation Ordinance. In other words, in HCA No.10749 of 1999, the 1^st Defendant claimed to be in adverse possession and obtained a declaration of possessory title against the then registered owners. 

6.The Plaintiff asserted that she had been in possession of the Lots since 1967. If that were true, the 1^st Defendant could not be in a position to obtain the judgment of 28 October 1999. Of course, the Plaintiff was not a party to High Court Action No.10749 of 1999 and therefore the declaration does not bind the Plaintiff. Since the judgment was granted by a Master, it was probably a default judgment. If the 1^st Defendant were not in possession of the Lots in 1999, she could not establish any possessory title. It follows that no title could have been passed to the 2^nd Defendant by the Assignment of 1 February 2002.

7.However, the dispute on the title is not the focus of the present application. The fact is that on 20 May 2005 the Plaintiff was in occupation of the Lots and the visits on that date had caused her serious concern about her personal safety. On the evidence, I am satisfied that she was justified in her concern and there is a serious issue to be tried that the incidents were occasioned by someone interested in the Lots.

8.Mr Lai argued that there was no factual basis to connect the 2^nd Defendant with the incidents on 20 May 2005. He referred this court to a number of authorities and he suggested that the test in American Cyanamid had been misunderstood. In my judgment, for present purposes, the correct test is set out in Paragraph 29/1/10 of Hong Kong Civil Procedure 2004 and I will just cite the following extract,

“The prospects of the plaintiff’s success are to be investigated to a limited extent. All that has to be seen is whether he has prospects of success which, in substance and reality, exist. Odds against success do not defeat him, unless that are so long that the plaintiff can have no expectation of success, but only a hope. If his prospects are so small that they lack substance and reality, then he fails; for he can point to no question to be tried which can be called ‘serious’, and no prospect of such success which can be called ‘real’.”

9.I do not think the authorities cited by Mr Lai take the point further although I noted his emphasis by reference to the  judgment of Slade J (as he then was) in Re Lord Cable, deceased [1977] 1 WLR 7 at p.19-20.

10.The issue is whether there is any serious question to be tried (as opposed to a hypotheses of fact) that the 2^nd Defendant had procured the incidents on 20 May 2005. The 2^nd Defendant filed an affirmation 26 May 2005 denying any involvement in the incidents. Whilst I agree there is no direct evidence showing that the 2^nd Defendant instigated the events on 20 May 2005, having considered the inherent probabilities of matter, I think there is sufficient circumstantial evidence before this court to support at least an arguable case for inference to be drawn on balance of probabilities that the 2^nd Defendant did have a part to play in the matter. Whether such inference will be drawn is a matter for the trial judge and no doubt more evidence will come to light by the time of trial.  At this stage, the following matters are relevant,

(a)	The 2nd Defendant has an obvious interest in evicting the Plaintiff from the Lots in order to obviate any challenge to his title over them;
(b)	On the other hand, as the 1st Defendant had already received payment under the Assignment, she would not derive any further benefit from the eviction of the Plaintiff. Mr Lai argued that the 1st Defendant could be serving her own interest in avoiding her being sued by the 2nd Defendant for breach of warranty in Paragraph 1 of the Assignment. In my judgment, this is wholly unreal in the absence of any complaint by the 2nd Defendant to the 1st Defendant with regard to the occupation of the Lots by the Plaintiff.  The 1st Defendant had actually moved out of the vicinity since the Assignment. The 1st Defendant is an old lady and it is difficult to see why she would take up the matter with the Plaintiff on her own volition;
(c)	In contrast, the 2nd Defendant still lives in the vicinity and on his own evidence, the 2nd Defendant owns a large number of lots in Yuen Long (see Paragraph 7 of his own affirmation) and he said he bought the land from the 1st Defendant for capital appreciation with a hope that they would be resumed by the Government or acquired by developers;
(d)	Having sold her interest to the 2nd Defendant, the 1st Defendant simply had no right whatsoever to recover the land. The person who could claim to have such a right is the 2nd Defendant.

11.It is asserted by the Plaintiff in Paragraph 4 of her Affirmation that the 1^st Defendant acted for herself as well as the 2^nd Defendant in contacting the Plaintiff with regard to the occupation of the land culminating in the incidents of 20 May 2005. For the above reasons, I think there is a serious issue to be tried whether she did the alleged acts on behalf of the 2^nd Defendant.

12.Based on the evidence, there is also a serious question to be tried as to whether the acts committed on 20 May 2005 constituted tortious acts, see Pong Yuen Man Tommy v Dakson Construction Co Ltd HCA 343 of 2005, 28 February 2005.

13.On the balance of convenience, I have no difficulty in concluding that such balance comes down in favour of continuing the injunction in the modified form. Mr Lai had not pinpointed any prejudice that would suffer by the 2^nd Defendant if such an injunction is continued. On the other hand, the Plaintiff had demonstrated by her conduct that without the protection of an interlocutory injunction, she would be in constant fear for her personal safety. So much so that she had to move away for the time being.

Ms Teresa Wu, instructed by Messrs Kao, Lee & Yip, for the Plaintiff

The 1^st Defendant acting in person (present)

Mr Thomas Lai, instructed by Messrs Chan, Leung & Co., for the 2^nd Defendant