Fairwing Investment Ltd v. China and Canton (Properties) Co Ltd and Another

HCA 2137/2004

in the high court of the

hong kong special administrative region

court of first instance

action no. 2137 of 2004

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BETWEEN

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Before: Hon Rogers VP (sitting as an additional Judge of the Court of First Instance) in Chambers

Date of Hearing: 27 October 2008

Date of Decision: 27 October 2008

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D E C I S I O N

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1.I have before me today a further hearing for mention of this case that came before me in August on an application by the Defendants to discharge the injunction which had been granted some four years earlier.  I refused to do so simply on the basis that what should happen was that the action, which had been ordered to proceed to a speedy trial, should progress as soon as possible. 

2.It has progressed partially but not to my satisfaction.  One of the things that has not happened is that a date for the hearing of the action has not been fixed.  I ordered that that should be fixed back in August.  More than two months has now expired and been wasted.  I have now made an order that will ensure, I hope, that some application is made to fix the date for trial, since this matter should be almost ready for trial now.  I have read the witness statements and I am not going to make any comment on them. 

3.However, today, there is an application by the Plaintiff for two further injunctions.  The first one is an injunction to be granted to restrain the 1st and/or 2nd Defendants - who, I might say, are companies - whether by themselves, their agents or servants or otherwise whosoever from causing or attempting to cause criminal damage to the land known as Lots 2150, 2151, 2152 and 2153, situate at DD244 of Sai Kung, New Territories, Hong Kong and/or any part of the building and messuage erected thereon; secondly, an injunction be granted to restrain the 1st and/or 2nd Defendants whether by themselves, their agents or servants or otherwise whosoever from causing or attempting to cause criminal damage to vehicles parked at the front yard of the Lots 2150 and 2153 in DD244, Sai Kung, New Territories, Hong Kong, as illustrated in pink in a Lot Index Plan annexed.

4.The application is supported by two affirmations and, simply, all they say is that bricks or rocks or stones were thrown at the window of the premises and that a brick was thrown through the rear window of what appears to have been a four-wheel drive vehicle which was parked in front of one of the buildings.

5.There is not a single piece of evidence to suggest that it was any of the persons associated with the 1st or 2nd Defendants that did that and I am not prepared to infer that the Yuens, who are the persons behind the 1st and 2nd Defendants, or any other persons connected with the 1st and 2nd Defendants, perpetrated that.  Sometimes hooligans do throw rocks and stones, they do throw bricks through windows and do cause damage.  Sometimes thieves do that.  They want to steal car radios; they want to steal the contents of cars; they want to get access to premises.  Things like that do happen.  I am not prepared to draw an inference, on the basis of the evidence before me, that the 1st and 2nd Defendants, or anybody associated with them, were responsible for it.

6.I consider that I have absolutely no alternative but to dismiss the application for injunction with costs.

Ms Dora K H Chan, instructed by Messrs C.P. Cheung & Co., for the Plaintiff

Mr Ronald Tang, instructed by Messrs H.M. Hui & Co., for the 1^st and 2^nd Defendants