Rich System Development Ltd v. Tsui Ming Sin and Another

HCA1234/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1234 OF 2011

____________________

BETWEEN

____________________

Before: Mr Recorder Shieh, SC in Chambers

Date of Hearing: 4 November 2011

Date of Judgment: 4 November 2011

_______________

J U D G M E N T

_______________

1.This is an application for an interlocutory injunction by the Plaintiff by summons dated 22 July 2011 to the effect that the Defendants should remove at their own cost the net wiring fencing off and enclosing part of the remaining portion of section F of Lot 4733 in Demarcation District 116 within three days from the date of the order to be granted, and that the Defendants should remove all the chattels, objects or otherwise on the disputed land at their own cost within three days from the date of the order to be granted by me. I shall refer to the relevant area as “the Disputed Area” and I shall refer to the remaining portion of section F of Lot 4733 as “the Lot”.

2.The registered owner of the Lot is Mr Lam Kwok-hung.  However, Mr Lam Kwok-hung is not the Plaintiff.  The Plaintiff is a company which has entered into a building contract with Mr Lam to build a village house on the Lot.  The Plaintiff claims to be suing as a person who is entitled to exclusive possession over the Lot.  No issue is taken as to its title to sue.

3.The 1st Defendant is the grandchild of the registered owners of a lot of land next to the Lot, namely section A of Lot No. 4733 in DD116.  I shall call it “the Adjacent Lot”.

4.The Plaintiff claims that it was tasked with the responsibility of building a small house on the Lot for the owner, Mr Lam Kwok‑hung, pursuant to a Chinese contract between them.  However, the Disputed Area, being part of the Lot, had been fenced off and trespassed upon by the Defendants.  I should add that apart from the 1st Defendant, the other Defendants are the 1st Defendant’s family members.  It is also alleged by the Plaintiff that a white container was placed on the Disputed Area.  It claims that if it could not complete the construction of the house on or before 31 March 2012, there would be adverse financial and other consequences for it and the registered owner of the Lot, hence this application for interlocutory injunction.

5.The 1st Defendant claims that his family members have been in adverse possession of the Disputed Area for over 35 years.  He said the Disputed Area has been fenced off continually since at least 1980 and the shape of the area fenced off had remained the same.  He claims specifically that at various times in the past, he and his family members have used the Disputed Area or parts thereof for different purposes such as (in no particular order) placing of containers, erection of a warehouse, building of a septic tank, renting out for the purpose of parking cars and cultivation.

6.The parties have argued the case before me on the basis (on which there is no dispute between them) that the grant of an interlocutory injunction will effectively determine the action, and therefore the Plaintiff’s burden is not just to show a serious issue to be tried and followed by balance of convenience, but its burden is to show that the action is at least very likely to succeed, which is (as the Plaintiff accepts at paragraph 24 of its skeleton) a more stringent application of American Cyanamid.  Naturally, the Defendant did not demur from this, and at paragraph 6 of their skeleton, put the threshold as a “high degree of assurance”. Given the apparent consensus between the parties as to the threshold of the Plaintiff’s case required, I shall proceed on this basis.

7.Both parties have adduced affidavit evidence from various individuals who claim to have been involved in village life in the area in question at different points in time and who had given their factual description of the occupation or non-occupation of the Disputed Area by the Defendants and by their family members over the years.  For example, each side had adduced an affidavit from a village elder/village head of the village in question to support its/their case.

8.This is an application for interlocutory injunction and not for summary judgment.  I therefore hope that I will be forgiven if I do not dwell too much on the details of the affidavit evidence of each and every deponent.  I will only do so insofar as it is necessary to illustrate a point that I am making.

9.Mr Enzo Chow, for the Plaintiff, launched a spirited attack against the quality of the Defendants’ evidence.  He characterised them as being dubious and equivocal.  Among other things, he pointed to the evidence as to the present location of the manhole of the septic tank, which was newly installed in March 2011 (admittedly within the Adjoining Lot) and commented that the location of the old manhole ought not to have been that different.  I add that the evidence from the Defendants is that there used to be a septic tank and a manhole round about that area, but in March 2011 they were replaced by a new septic tank and a new manhole.

10.Mr Chow made the point that recent aerial photographs show that any containers on the Disputed Area were placed near the edge of the area and at most only encroached slightly on the Disputed Area.  He submitted that in any event, containers are movables, and the photos show that different containers of different colours and shapes were shown to be placed at various parts of the Disputed Area at different points in time, and this showed that the placing of containers on the disputed area was more in the nature of an act of convenience rather than an indication of an intention to possess.  He further submitted that whatever might have been the position about adverse possession or intention to possess at some stage in the past, there had been an abandonment thereof.  He referred, for example, to the fact that the fencing had been allowed to become dilapidated and the fencing was only renewed recently in early 2011.  He also relied on a letter from the District Lands Office in Yuen Long dated 27 October 2011 indicating that according to its records, the Lot had been cleared before the execution of the relevant building licence in January 2009.

11.Mr Reeves, for the Defendants, submitted by reference to a series of aerial photographs which had been incorporated into his written submissions that there clearly had been evidence of use and occupation of the disputed area for different purposes.  The photographs show that at different times, a warehouse, vehicles and containers had been seen on the land.  Signs of a manhole belonging to an old septic tank (which was only replaced in March 2011) were also marked on an aerial photograph as being located within the disputed area.  He submitted that the position of the new manhole has no necessary bearing on the position of the old manhole because when the old septic tank and manhole were “renewed”, the whole manhole and septic tank was dug up and the manhole could have been repositioned.  He submitted that the DLO letter was inconclusive and it depended on the understanding and meaning of what was meant by “cleared”.

12.The above is a very broad description of the competing arguments.  I have not set out the parties’ oral submissions before me exhaustively.  I have had regard to all of them, as well as the totality of the written submissions put before me. I am giving this decision ex tempore and all the arguments are fresh in my mind.

13.In my view, while some of the points made by Mr Chow may be legitimate matters of comment when it comes to a trial, I cannot say at this stage that there is such a high degree of assurance as to the Plaintiff’s chances of success or that its case is so strong on paper so as to call for an exercise of my discretion to grant an interlocutory injunction as prayed.

14.The evidence produced by both sides are at times diametrically opposite.  For example, as I indicated above, each side produced an affirmation of a village head/village elder of the village, each of which gave evidence in favour of the party putting him forward.  There appears to be no dispute that they were co‑heads of the village, but then there is a dispute as to their respective “geographical jurisdiction” within the village, and whether one village head is really in a position to comment on matters occurring in another part of the village.  There is also evidence that two people, namely Wong Lee-cheung and Wong Sui‑ping, had purported to rent the Disputed Area (or part thereof) from the 1st Defendant for the purpose of placing or parking vehicles thereon, but in relation to one of them, namely Mr Wong Lee-cheung, there is a dispute as to the nature of his use of the land, specifically whether he was really using the land in the mistaken belief that one Mr Chung was allowing him to use it rather than in the belief that the 1st Defendant was renting the area to him.

15.I cannot form a view now that the evidence of one side is necessarily so much stronger than the other at this stage in order to overcome the hurdle required by law to justify the grant of an injunction in the circumstances of this case.  Further, questions such as whether there had been any abandonment of possession, whether the placing of containers on or near the Disputed Area was for the purpose of convenience only or for the purpose of possession, and whether the Disputed Area was the only vehicular access to the Defendant’s house on the Adjacent Lot (such that - on the Defendant’s case - it is understandable why there was not a wholesale blocking off of the Disputed Area) are extremely fact-sensitive matters which cannot be resolved purely on paper.  At times during the hearing, counsel and I had to try very hard to identify the location of particular features to visualise them and to orientate the relevant photographs.  These highlight the need for a trial and show that it is not possible at this stage to say that the Plaintiff has a very strong chance of success.

16.For these reasons, I refuse the Plaintiff’s application for interlocutory injunction.

(Discussion re consequential applications)

(Discussion re costs)

17.Costs of and occasioned by the summons be costs in the cause, save that costs incurred subsequent to 25 October 2011 be to the Defendants in any event.

(Discussion re leave to file defence)

18.Leave be granted to the Defendants to file and serve their defence in the form attached to their summons dated 2 November by close of business on 7 November.

(Discussion re consequential directions)

19.Consequential directions of the timetable will take care of itself; the usual timetable under the Rules of High Court.

(Discussion re costs of time summons)

20.As to the extension of time, costs of and occasioned by the time summons be to the Plaintiff in any event.

Mr Enzo W H Chow, instructed by Messrs Jessica Wong & Co, for the Plaintiff

Mr Mark Reeves, of Messrs Munros, for the 1st and 2nd Defendants