Cheung Yuk Ying v. The Personal Representative of Lo Koon Fuk and Another

HCA1127/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1127 OF 2006

BETWEEN

(By Original Action)

______________________

Coram: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 22 September 2006

Date of Judgment:  22 September 2006

J U D G M E N T

1.I think Mr Ho, on behalf of the defendants, has really done his best in difficult circumstances.  I appreciate that there has been considerable delay on the part of the plaintiff in bringing these proceedings.  The fence in question went up in April 2004 and the writ was not issued until May 2006.  As I said in the course of the argument, I think part of the delay can obviously be explained by the usual skirmishing between solicitors, initially, by the fact that the police became involved and by the length of time that it can take to apply for legal aid.  I understand that.  But the overall picture is of delay which is probably more than one would hope to see in this sort of situation.

2.Today, this is the first hearing of the application to have this fence removed and to allow the plaintiff and the members of the plaintiff’s family to use what is said to be a right of way of longstanding.  As a result, the defendants, although they have filed detailed pleadings, have not been able to go on paper and file their own affirmations in reply - and obviously they need time  to do that and time will be allowed by me - but the question is whether I should make a very limited order, which is asked for today, on an entirely without-prejudice basis, which appears in the bundle that has been prepared for today’s hearing by Mr Cheung, who is counsel on behalf of the plaintiff.  His client is willing to give an undertaking to pre-pay the defendants their reasonable costs in removing part of the wire netting, and what is involved here is not very much, it is a question of rolling back the wire netting which is immediately in front of the front gate of the property, so as to allow the plaintiff and the family and, no doubt, their lawful visitors, to use the right of way. 

3.In the event that the action eventually fails, then they will reconstruct the fence at their own expense.  Of course, they are willing to give the usual cross-undertaking in damages.  Of course, that is all very convenient but I can only proceed on the basis that, as matters presently stand, the plaintiff can demonstrate not only that there is a serious issue to be tried between the parties but, as this is an application for a mandatory injunction the test is higher, the court ought to feel a high degree of assurance that at the trial it would be shown that the injunction was rightly granted.  It is difficult for me to form any particular view about that without really having had an opportunity to have a sight of the defendants’ evidence.  Alternatively, the test is put in this way, that I have to look at the matter and ask myself the question whether withholding the injunction would carry a greater risk of injustice than granting it.  It seems to me today - I would have thought, notwithstanding the delay - that I ought to allow the plaintiff the limited relief that he asks for, and he asks for it on an entirely without-prejudice basis.  I am bound to say, I am not impressed - as I indicated in the course of the argument - with the defendants having taken a very high-handed course of erecting this fence.  That would have been something of last resort, I would have thought; it has the effect of almost imprisoning the plaintiff behind this fence.  The proper course would have been, of course, to bring proceedings to have the matter resolved in the courts rather than dealing with it in this way, with the inevitable result that the police were involved.  And that is something I bear in mind today in making the order that is asked for.

4.I propose to make an order in terms of the draft order attached to the plaintiff’s skeleton argument, which also provides for the filing of affirmations and so forth. Costs will be reserved and there will be an order for Legal Aid taxation of the plaintiff’s costs.

Anthony Cheung, instructed by Messrs K.M. Cheung & Co., for the Plaintiff

Wycliffe Ho, instructed by Messrs Hagon Wai & Partners, for both Defendants