Wong Kwai Sang v. Cheung Wai Ming Turbo

HCA 1726/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1726 OF 2009

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BETWEEN

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Before : Deputy High Court Judge Au-Yeung in Chambers

Date of Hearing : 22 February 2012

Date of Decision : 22 February 2012

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D E C I S I O N

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1.The plaintiff seeks an interim injunction restraining the defendant from entering or remaining at the subject property (“the property”) pending trial.

Background

2.The plaintiff’s case is that since about 1994, he and Mr Au (the former registered owner of the property) had been running a business at the property. 

3.There is no dispute that the defendant acquired the property from Mr Au on 15 May 1997.  The defendant, however, is ordinarily resident in Ireland.

4.After becoming the owner, apart from one alleged demand on Mr Au and the plaintiff in May 1997, the defendant has taken no further steps to recover possession. 

5.The plaintiff and Mr Au, however, did not move out.  In May 1997, Mr Au resigned from the design business and moved away.  The plaintiff has continued to occupy the property for over 12 years and claims to have acquired possessory title by the time he issued the writ in August 2009. 

6.The defendant denies the plaintiff’s case.  He permitted Mr Au to continue residing at the property as a licensee even after he (the defendant) became the registered owner.  He had been paying Mr Au $5,000 per month to take care of the property.  The defendant is unable to contact Mr Au since about early July 2009.  The defendant did not know the plaintiff.  During his visit to Hong Kong and whilst residing at the property in late April to end of June 1997, the defendant had never met the plaintiff. 

Bases for the injunction

7.The plaintiff alleges that one Mr Chan, claiming to act on behalf of the defendant, damaged and changed his door lock.  Mr Chan also posted up posters inside and outside the entrance of the building to defame the plaintiff.  Someone also attempted to terminate the water and electricity supply to the property.  The plaintiff therefore seeks an interim injunction to restrain the defendant from entering upon or remaining at the property save with the plaintiff’s prior written consent.

8.The defendant stated that he did not know Mr Chan personally although he understood that Mr Chan had once been a pupil of Mr Au. He had not authorized Mr Chan to do anything on his behalf. 

9.There is no evidence that the defendant or his agent has attempted to enter or remain at the property.  Evidence (assuming to be true) that the defendant’s agent had posted up defamatory posters damaged the plaintiff’s letter box is irrelevant to show that the defendant had interfered with the plaintiff’s possession of the subject property.  At best, only the evidence as to change of door locks, change of locks to the main gate of the building and interference with the supply of electricity and water can be taken as acts of “entry”.  There was no direct evidence that the defendant authorized Mr Chan to do what he did.  However, given the plaintiff’s evidence that one of the posters stated on its face that it was issued by order of the defendant as registered owner and Mr Chan was contactable by the plaintiff, I shall assume for present purposes that it was the defendant who authorized all those acts of entry. 

10.The burden of proof is on the plaintiff to show that there is a serious question to be tried, that damages will not provide an adequate remedy and the balance of convenience lies in granting the injunction: American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504. 

Serious question to be tried

11.The plaintiff has not begun to show that he has been in occupation for over 12 years.  His affidavit contains mostly bare assertions.  The documents to prove occupation at the property went only as far back as 2000 and that related to his father’s business rather than his own. The utility bills with the plaintiff’s own name went only as far back as 2010. According to the writ, the plaintiff has an address in Sheung Shui.   During his oral submission, the plaintiff also said that it was his sister who resided at the subject property whereas he visited her at regular intervals.  So when the plaintiff first entered into possession remains in doubt. 

12.During oral submission, the plaintiff claims that his father had operated a business at the subject property since 1997.  If he was correct, that was his father’s occupation and there was nothing to show that his father was in adverse possession.  The plaintiff also claims that he had interest in his father’s business.  Unfortunately, this was again a bare assertion not even mentioned in any of his affirmations. 

13.Mr Leung also points out the contradiction in the plaintiff’s case in that the plaintiff pleaded that he and Mr Au had decorated and partitioned the property in May 1997 on the one hand and yet claimed that Mr Au had moved out in May 1997.  I find it quite illogical that Mr Au, knowing that the property had been sold, would have decorated/partitioned it and having done so, moved out.

14.The plaintiff complains of the late service of the defendant’s evidence such that he was not in a position to provide all the evidence of his occupation.  I do not think the blame could be laid on the defendant.  The burden of proof is on the plaintiff.  His affirmation in support was grossly deficient.  His reply affirmation did not make up the deficiency.  Even if one were to disregard all the evidence of the defendant, the plaintiff’s evidence is still not sufficient to show that he has a case on occupation for 12 years.  No serious question to be tried has been shown.  On this ground alone, the application must fail.

Adequacy of damages

15.For completeness’ sake, I will deal with the other 2 issues.  If the plaintiff can prove that his occupation has been for over 12 years, damages will not be an adequate remedy if an injunction is denied.  He has his business at the subject premises and his sister resides there too.  Damages will not adequately compensate him for being deprived of use of the property. 

Balance of convenience

16.The defendant is resident out of the jurisdiction.  There appears to be no urgent need for him to enter the property. His loss may be compensated for by, e.g. damages for trespass. 

17.The problem is that the plaintiff has not shown himself to be a person of means who can honour his undertaking in damages.  His main income is from private tuition lessons and free-lance design work.  Any undertaking he gives will not be of much value to the defendant.

18.Due to lack of a serious issue to be tried, and lack of a meaningful undertaking as to damages, the balance of convenience lies in refusing to grant the injunction.  That application should be dismissed.

Costs

19.Costs should follow the event and be to the defendant.  I have taken into account the submission of the plaintiff that he has tried to elicit an undertaking from the defendant so as to spare this hearing.  Since the present application fails, the defendant’s failure to give the undertaking should not operate to reduce his costs.

20.In considering the quantum, I have taken into account the fact that this matter is not complicated and the papers are limited.  Without disrespect to the solicitors, there was no need to engage a senior partner to do the substantive work.  I adopt the hourly rate of $3,000. I also adjust the hearing time to 1.5 hours, being the actual time spent.  I summarily assess the costs of this application at $58,720. 

Conclusion

21.I order as follows:

(i) The summons is dismissed;

(ii) On a nisi basis, costs be to the defendant summarily assessed at $58,720. Such costs order shall become absolute unless the plaintiff applies for variation within 14 days after the handing down of this decision.

22.I thank counsel for his assistance.

The Plaintiff appeared in person

Mr Kelvin Leung, instructed by Hau, Lau, Li & Yeung, for the Defendant

Please refer to HCMP954/2012 for the relevant appeal(s) to the Court of Appeal.