Li Yuen Yi Irene v. Law Wai Chung and Another
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DCCJ 2919/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2919 OF 2004 ____________ BETWEEN
____________ Coram: H.H. Judge Chow Hearing date : 6th – 9th December 2005, 14th – 16th, 19th, 20th, 22nd June, 17th, 18th, 20th, 22nd, 23rd, 27th, 28th November 2006 Date of final written submission : 23rd January 2007 Date of handing down Judgment: 2nd May, 2007 _________________ JUDGMENT _________________
1.This is the Plaintiff’s claim against the Defendant for trespass to land. 2.The Plaintiff is the occupier of the premises known as Flat A1, 15th Floor, Summit Court, No. 144 - 158 Tin Hau Temple Road, Tain Hau, Hong Kong, whereas the Defendants are the occupiers of Flat A2, 15th Floor, Summit Court. 3.Sometime in November 2002, the 2nd Defendant told the Plaintiff that termites were found in her home. She then made an appointment with the Plaintiff to inspect the Plaintiff’s property with Manager Ip of the Management Office of Summit Court. The Plaintiff said that in mid-November 2002, the 2nd Defendant went to the Plaintiff’s home with Manager Ip and another staff of the Management Office. Manager Ip took some photographs of the Plaintiff’s flat, whilst the Plaintiff and her domestic helper, Nora, were there. 4.In their Amended Defences the Defendants said that this visit took place in mid-November. But in their witness statements they said that this visit was on 23rd December 2002. When testifying they said that the correct date of this visit should be mid-December 2002. 5.On 23rd December 2002, pursuant to an appointment agreed between the Plaintiff and the 2nd Defendant, the 2nd Defendant and two staff members from a pest control company (the Pest Control Centre) visited the Plaintiff’s flat. After inspection the pest control people opined that there were termites in the Plaintiff’s flat. 6.On a certain date the Plaintiff and her husband visited the Defendants’ flat. There the 2nd Defendant showed to the Plaintiff’s husband some damaged floorboards in their living room and a damaged bookshelf in their study. The Plaintiff’s husband suggested that a firm of surveyors be retained to ascertain the cause and quantum of the damages done by the termites. The 2nd Defendant agreed to the suggestion. The Plaintiff says this visit took place in mid December, before the visit on 23rd December 2002, whereas the Defendants say that this visit took place after 23rd December. 7.The Plaintiff’s case is that after the visit on 23rd December 2002, she did not want the 2nd Defendant to bother her on the issue of termites, because the 2nd Defendant had repeatedly insisted that termites had spread from her flat to the Defendants’ flat, and demanded for compensation. She specifically instructed Nora not to let the 2nd Defendant in, if she called at her flat again. 8.On 2nd January 2003, at about 3:30 p.m., the Plaintiff was in her bedroom and heard the door bell ring. She told Nora that if it was the 2nd Defendant who came to her flat, she was not to let her in. After some time she heard noises outside. When she went out to find out what was happening, she saw the Defendants, Manager Ip and another man in her flat. The 2nd Defendant was taking some photographs of some floorboards in her living room. She told them that they were not welcomed there and asked them to leave. Manager Ip and the other man left right away, but the Defendants stayed behind. The 2nd Defendant continued to dismantle some floorboards and to take photographs. In rude tones and manners, they accused the Plaintiff of being responsible for letting termites spread from her flat to theirs and of evading liability. They stayed in her flat for about 10 minutes and only left after she had threatened twice to call the police if they would not leave. 9.The Defendants admitted that on 2nd January 2003 they had entered and remained in the Plaintiff’s flat, but they were lawfully entitled to do so because (1) they were invitees, and (2) they were “abators of the termite nuisance common to” the Plaintiff’s and their homes (see paragraph 2(1) of the Amended Defence). With regard to Ground (1), their pleaded case is that they had entered and remained in the Plaintiff’s home with the Plaintiff’s permission, or alternatively, with the permission of Nora, who had the authority to give permission. With regard to Ground (2), their pleaded case is that termites from the Plaintiff’s home had spread to their home, and therefore they were entitled to enter the Plaintiff’s home to make “inspection with a view to find eradication and rehabilitation of both premises”. The initial entry 10.It is the Plaintiff’s case that Nora had no actual authority to let the Defendants enter into her flat. Her evidence is that she repeatedly told Nora not to let the Defendants in. She had reminded Nora of that instruction just before Nora let the Defendants’ party in. She was annoyed and angry when she came out into the living room and found that the Defendants were there. Shortly after the incident she dismissed Nora from her employment. The Defendants submit that the Plaintiff dismissed Nora so that she could not become a witness to tell what had actually happened on that day. I do not believe that the Plaintiff contemplated future litigation on that very day. In respect of this incident, the 1st letter written by the Plaintiff’s solicitors to the Defendants was on 16th January 2003. I simply cannot image that on 2nd January 2003 she had in her mind the plan to eliminate Nora as a witness so that Nora would not testify against her. The Plaintiff testified in a straight forward manner and was not shaken under cross-examination. I find that she is an honest witness. Her response at the material time is that she was very angry at that time because Nora let the Defendants in, contrary to her repeatedly instructions to her. I find that she dismissed Nora because, contrary to her instructions, Nora had let the Defendants enter her flat. I also find that Nora had no actual authority to let the Defendants enter her flat. 11.In paragraph 2 of the Amended Defence, the Defendants pleaded:-
12.Under sub-paragraph (k) above the Defendants pleaded that Nora should have apparent or other authority to permit the Defendants to enter the Plaintiff’s flat. I found that Nora did not have actual authority to do so. So the remaining issue is whether Nora had apparent authority to let the Defendants in. 13.The Defendants’ evidence is that they and the Plaintiff had made an appointment for them and the staff of another pest control company to visit her flat on 2nd January 2003. Both Defendants agreed that it would be wrong for them to have entered the Plaintiff’s flat on the appointed day with only the permission of Nora, and without the Plaintiff’s consent to the alleged appointment. 14.The Defendant’s evidence is that they were licensed by the Plaintiff personally to enter her flat. So their evidence is contrary to their pleaded case, which is that Nora should have authority, apparent or otherwise, to permit them to enter her flat, in the absence of any prior agreement with the Plaintiff for them to enter her flat. Hence their pleaded defence is not supported by evidence and is bound to fail. 15.The next matter I have to decide is whether the Defendants’ evidence about the alleged appointment is credible. The alleged appointment was not pleaded in the defence or referred to in the Defendants’ witness statements. They said that this was due to the fault of their former solicitors. It is mere common sense that such appointment is of fundamental importance to their defence. They signed their witnesses statements. Before putting down their respective signatures, they must have been aware that the alleged appointment was not mentioned in their witnesses statements. Yet they did not make any correction in that regard. This is incredible. 16.Both Defendants averred that their witness statements clearly implied that the Plaintiff had agreed to their visit on 2nd January 2003. But no such implication can be so inferred. 17.The alleged appointment was not mentioned at all in the 1st Defendant’s statement to CAPO on 7th April 2003, made in response to the Plaintiff’s two complaints against him for trespass and abuse of power. The 1st Defendant referred to a sentence in paragraph 3 of his CAPO statement, namely,
The 1st Defendant said that this sentence referred to an appointment made between the two parties. But the appointment in this sentence is the appointment to go over to his home, and not the appointment to go to the homes of both parties. Further the appointment is an appointment with the pest control company, and not an appointment with the Plaintiff. It is plain and obvious that there is no reference in this sentence about the alleged appointment. 18.In her evidence in chief, the 2nd Defendant said that the time they arrived at the Plaintiff’s flat seemed to be 2 to 3 o’clock. But under cross-examination she said that the time of arrival was definitely after 3 p.m. She changed her evidence. 19.Their respective statements clearly show that they thought it necessary to explain to Nora why they were at the Plaintiff’s door and why Nora should let them in. It would be very natural for them simply to say to Nora that they had made an appointment with the Plaintiff to visit her flat, if the alleged appointment had truly been made. But they did not do so; instead they said that they had come along with a pest control expert for an inspection and that they would take some photos as they did on a previous occasion. This is unnatural. 20.If the alleged appointment had been made, it would have been natural for the 2nd Defendant to ring up the Plaintiff to find out why she was not at home pursuant to the alleged appointment. The 1st Defendant explained that he did not ring up the Plaintiff because he believed that the Plaintiff was on her way home. The 2nd Defendant’s excuse is that she did not have her phone with her, when her flat was just next door. 21.Both Defendants said that they believed that the Plaintiff was on her way home although they had been told by Nora that the Plaintiff was out of town. When asked why they did not wait until the Plaintiff returned home before they started to inspect her flat, the 1st Defendant said that it was because Wanky Ip had other appointments to attend to, and so they could not wait for the Plaintiff to come back to her flat. The 2nd Defendant explained that as far as she was aware, the four of them were going to stay in the flat to wait for the Plaintiff to return. Her evidence is in conflict with that of the 1st Defendant in this regard. 22.The 2nd Defendant’s evidence clearly implies that there was no reason for them to go ahead with the inspection without waiting for the return of the Plaintiff, especially as the 2nd Defendant agreed that when she confirmed the alleged appointment with the Plaintiff, she believed that the Plaintiff wanted to be present during the inspection. If there really were the alleged appointment, when the Plaintiff came out into the living room, and angrily asked them what they were doing there and told them to leave, at least one of three of them, namely, the 1st Defendant, the 2nd Defendant or Manager Ip should naturally have asked the Plaintiff why she was shouting and angry when there was no reason for her to do so because they were there pursuant to the alleged arrangement. But none of them did so. The failure to leave with reasonable expedition after having been told by the Plaintiff to leave 23.When the Plaintiff came out into the living room she told the Defendants’ party to leave her flat. It is the Plaintiff’s evidence that they stayed for about another 10 minutes during which the 2nd Defendant continued to dismantle further floor boards, take photographs and, in rude tones and manners, persisted in accusing the Plaintiff of being responsible for letting termites spread from her flat to theirs and of evading her responsibility. They only left after she had told them that if they did not leave, she would call the police. 24.It is the Defendants’ evidence that they stayed on in the Plaintiff’s flat and persisted in engaging the Plaintiff in a discussion about termites despite the Plaintiff’s repeated statements that she did not want to talk to them and that she asked them to leave. 25.I do not accept the Defendants’ version. I do not believe that they were telling the truth. I accept the Plaintiff’s version of event. I find that she is an honest witness. I find that the Defendants did commit the test of trespass on 3rd January 2003 as revealed in the evidence of the Plaintiff. 26.Even on the Defendants’ own evidence, what they did amount to trespass because they did not use reasonable expedition to leave the Plaintiff’s flat. The 1st Defendant’s evidence is that he persisted in engaging in a discussion about termites despite repeated statements made by the Plaintiff to him and the 2nd Defendant that she did not want to talk to them and that she asked them to leave. He said that as soon as the Plaintiff came out, she scolded Nora for letting them in and immediately told the Defendant’s party that they were not welcomed in her home. She told them to get out of her flat. Manager Ip and the other man left immediately, but the two Defendants remained behind and insisted to talk to the Plaintiff about the termites. 27.The 2nd Defendant said that she and the 1st Defendant followed the two Mr. Ips to leave right away after having been told by the Plaintiff to get out. Her evidence contradicts the 1st Defendant’s. She said that there was a duration of 2 minutes from the time the Plaintiff first appeared in the living room to the time she slammed the door on them. The Plaintiff submits that given the relatively modest size of the flat and the distance from the balcony to the door, it was absolutely impossible for her departure with reasonable expedition to have taken 2 minutes. I accept this submission. 28.According to the 1st Defendant’s CAPO statement, the Defendants stayed for 2 minutes inside the flat talking to the Plaintiff, and they were still inside the flat when the Plaintiff said she would call the police if they did not leave. This statement refers to the fact that the 2nd Defendant used her camera to take photographs even after the Plaintiff had come out into the living room and asked the Defendant’s party why they were there. 29.In the minutes of the 13th meeting of the Incorporated Owners of the building held on 17th January, 2003 attended by Manager Ip and the 2nd Defendant, an account was given of the incident of 2nd January 2003: after the Plaintiff had told the Defendants’ party to leave, the two Mr. Ips left immediately, but the Defendants “still remained inside Flat A1 and quarrelled with Mrs. Sze. They left unamicably a few minutes later.” These minutes were approved at the 14th meeting in which the 2nd Defendant was present. Having attended these 2 meetings, the 2nd Defendant must have accepted the accuracy of what was recorded in the minutes at the time when they were passed. The defence of “entry as abators” 30.The Defendants’ pleaded case is that the Plaintiff had committed a nuisance actionable at the suit of the Defendants because termites from the Plaintiff’s flat had spread to theirs, with the source of the termites laying within the Plaintiff’s flat. However, the Defendants concede in their final submissions that they have failed to prove that termites spread from the Plaintiff’s flat into theirs with the source of the termites laying within the Plaintiff’s flat. In paragraph 5 of Part D of their submissions, the Defendants stated:-
31.I find that there is no evidence to prove that termites spread from the Plaintiff’s flat to the Defendants’. No nuisance was committed by the Plaintiff actionable at the suit of the Defendants. Therefore they were not entitled to enter the Plaintiff’s flat as abators of the termite nuisance, because there is no proof that the termites in the Plaintiff’s flat caused nuisance to the Defendants. Hence there is no nuisance to be abated. Quantum 32.The Plaintiff submits that the actions of the Defendants in the course of the trespass were highly intrusive and reprehensible. She submits that together with two other persons they intruded into her home. They then proceeded to remove her floor boards and take photographs there. They did so clearly to gather evidence in order to support their accusations against the Plaintiff that termites had spread from the Plaintiff’s flat to theirs. When asked by the Plaintiff to stop and leave, they refused to do so and remained in the Plaintiff’s home. They continued to remove floor boards and take photographs and launched accusation rudely against the Plaintiff for being responsible for letting termites spread from her flats to theirs and of evading her responsibilities for about 10 minutes. The Plaintiff had to threaten them twice that she would call the police before they left. I find that there is insufficient evidence to ground an allegation of aggravation. 33.The Plaintiff submits that her conditions were further aggravated by the hostility the Defendants have persistently shown towards her since the time of the incidence through hostile stares, taking their 8 dogs out for walk using the front lifts, parking their car in such a way as to hinder the Plaintiff and her husband’s use of their parking space. In my judgment there is insufficient evidence to establish that the Defendants did this as a result of what had happened on 2nd January 2003. 34.A few days after the incident, the Plaintiff was diagnosed to be suffering from acute anxiety state, and her condition lasted until June 2003. She also suffered insomnia. She asked for compensation for the medical expenses ($1500) incurred by her. But personal injuries are not claimable under trespass to land. So I would not make or order for compensation in this regard. 35.In my judgment a sum of $50,000 would be sufficient to compensate her as damages. I order that the Defendants do pay, within 14 days today, a sum of $50,000 to the Plaintiff, with interest thereon, at judgment rate from 20.2.2003 until satisfaction. Costs 36.I make an order nisi, to be made absolute in 14 days’ time, that the Defendants do pay 90% costs to the Plaintiff, to be taxed, if not agreed, with certificate for Counsel.
The Plaintiff : represented by Ms. Selina Lau, instructed by M/S. Siao, Wen and Leung, solicitors. The Defendants: represented by Mr. William Marshall S.C. leading Miss Kevin Wong & Yvonne Chan, instructed by M/S. K.Y. Lo & Co., solicitors. |