Skylark Ltd and Another v. Kung Sui Wing

HCA 2607/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2607 OF 2006

----------------------------

BETWEEN

------------------------

Before : Mr Recorder Jat, SC in Chambers

Date of Hearing : 15 December 2006

Date of Decision : 15 December 2006

-------------------

D E C I S I O N

--------------------

1.In the interest of time I will not set out the background facts to this application, which are set out in the affidavit evidence placed before me.  In short, this is an application for, and what I would call, an “interim interim” injunction by the plaintiffs to restrain the defendant from blocking a section of a road referred to as the “Suit Road” in the evidence before me, which is situated in Lot 695.

2.I am satisfied that for the purpose of today the plaintiffs have shown a serious issue to be tried as to whether they have an interest or right to use the Suit Road to gain access to their properties by vehicle and on foot.  In the first place, I think the evidence suggests that the owner of Lot 695 knew of the construction of the Suit Road in 1992, in around 1992 to 1993, and has not taken any steps to prevent the construction of the road or would-be subsequent user by any person.  It would appear that before the incidents complained of by the plaintiffs there had been no obstruction to any member of the public to pass and re-pass along the section of the Suit Road over Lot 695.  There is, in my view, at least a serious issue to be tried that the plaintiffs can rely on proprietary estoppel or licence arising by estoppel.

3.Mrs Chan also submitted that the evidence supports the dedication of a public way in that the dedication can be inferred on the user of the Suit Road by the public.  That being the case, the obstruction of the public way would grant an action in nuisance.  In my view that argument has a reasonable prospect of success, and I am also satisfied that there is a serious issue to be tried.

4.I am also far from satisfied that the defendant actually has the right to block the usage of the Suit Road.  The authorization letter given to him by the owner of Lot 695, when read literally, only allows the defendant to take action in the event of any person causing or attempting to cause damage to the Lot.  There is no evidence of any damage caused to Lot 695 or any intention to cause damage to that property.

5.Turning to the balance of convenience, the scale is entirely in the plaintiffs’ favour.  Blocking vehicular access to the plaintiffs’ properties does not only cause serious inconvenience, but is downright dangerous.  In my judgment, the status quo prior to the blockage should be restored pending the full determination of this matter. 

6.I therefore grant the plaintiffs an injunction requiring the defendant to remove the boulders, concrete blocks, a chain and lock placed across the Suit Road and to enjoin the defendant from putting up any or other boulders, blocks, chains, rocks of barriers across the Suit Road until the substantive hearing of the plaintiffs’ summons dated 28 November 2006.

7.I will also give leave to the plaintiff to re-amend the writ as per the draft handed in to me, and I would simply note that insofar as the plaintiffs are relying on estoppel, it does not necessarily have to be a right of way created by estoppel, and I say no more about that.

Mrs Dora Chan, instructed by Messrs S.K. Wong & Co, for the Plaintiffs

Mr Patrick Chong, instructed by Messrs K.B. Chau & Co, for the Defendant