Cheung Churk Hung and Another v. Mok Chi Cheong and Others

DCCJ 2642/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2642 OF 2012

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REASONS FOR DECISION

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Introduction

1.The plaintiffs applied for an injunction ex parte on notice on 2 August 2012 which was granted on terms restraining all of the defendants from trespassing, unlawful interference with the use and enjoyment on four lots of land in the New Territories and nuisance.  They are known as Lots 2460 (“the 1^st Lot”), 2461, 2462RP and 2464RP (“the 2^nd Lots”) in Demarcation District 120, Yuen Long (collectively “the Lots”).

2.The return date for the inter partes hearing for continuation of the said injunction was heard on 16 August 2012 where the parties had filed affirmations in support of and in opposition to the said injunction respectively.  After the conclusion of that hearing on 16 August 2012, I granted the plaintiffs an interlocutory injunction with costs to the plaintiffs in the cause.  These are my reasons for the decision.

The defendants’ summonses

3.At the hearing on 16 August 2012, there were other matters which required consideration such as the defendants having filed various summonses.

4.On 10 August 2012, the defendants filed a summons for, inter alia, the injunction granted ex parte on notice on 2 August 2012 be discharged and also, by way of essentially a cross-summons, an injunction against the plaintiffs for doing any acts at the Lots inclusive of any acts of nuisance, a declaration that the defendants are entitled to use the Lots as per an exhibited and discretely delineated map with costs of its summons and costs of the plaintiffs’ present summons be to the defendants.

5.In relation to the defendants’ summons of 10 August 2012, it was dismissed with costs to the plaintiffs in any event with a certificate for counsel.  It was accepted by the parties that the defendants’ summons of 10 August 2012 was dependent on the outcome of the plaintiffs’ inter partes summons for an interlocutory injunction.

6.On 14 August 2012, the defendants filed a summons for stay of this action pending joinder of a company named Joint Fortune Corporation Limited (“Joint Fortune”) as a co-defendant and that Joint Fortune be made a co-defendant in this action. 

7.In relation to the defendants’ summons of 14 August 2012, that was dismissed and costs were awarded to the plaintiffs in any event.  In short, that said summons of the defendants was unrelated to the present action as their locus and relevance to the present case were not established nor in any event was the evidence sufficient.  The defendants’ summons of 14 August 2012 and their reasons for dismissal will become apparent in these reasons.

8.On 15 August 2012, the defendants filed a summons for, inter alia, consolidation of the present case with DCCJ 2817 of 2012.  A generally endorsed writ for DCCJ 2817 of 2012 was filed on 14 August 2012 where the defendants in the present action are acting as the plaintiffs in DCCJ 2817 of 2012 and the plaintiffs together with the owners of the Lots are acting as the defendants thereof. The cause of action of the plaintiffs in DCCJ 2817 of 2012 is that of nuisance.

9.In relation to the defendants’ summons of 15 August 2012, that summons was adjourned with costs reserved and orders were made relating to the further conduct of DCCJ 2817 of 2012 whereby, inter alia, undertakings were given by the plaintiffs in that action and directions made for the filing of evidence by the respective parties. 

Background

10.The Lots are situated within Lam Hou Tsuen, Yuen Long, New Territories (“the Village”).  The plaintiffs at the ex parte on motion stage relied upon the affirmation of Cheung Churk Hung filed on 2 August 2012 (“the 1^st Affirmation of Cheung”).  The 1^st plaintiff and the 2^nd plaintiff are the lessees of the Lots and they intended to develop them into an organic farm by Christmas 2012.

11.However, prior to the ex parte on notice injunction of 2 August 2012, the defendants at the very least did physically prevent the plaintiffs’ surveyor, contractors and workers from further entering onto and carrying out various works on the Lots in June and July 2012, in particular on 20 July 2012, a matter to be discussed in greater detail hereinbelow.  This much is admitted in the affirmation of Man Cheung Lam, the 16^th defendant, who was also representing the other defendants with their authorization, being filed on 8 August 2012 (“1^st Affirmation of Man”).  It is not entirely clear from the defendants’ evidence whether they entered the Lots whereas the plaintiffs’ position was that the defendants did enter the Lots but such evidence was based only on hearsay from the plaintiffs’ surveyor, contractors and workers. 

12.The plaintiffs alleged that the defendants continued to block the plaintiffs from entering onto and carrying out various works on the Lots up until 1 August 2012 and then in the second affirmation of Cheung Churk Hung filed on 15 August 2012 (“2^nd Affirmation of Cheung”) that the defendants still persisted in wrongfully blocking the plaintiffs works to be carried out on the Lots up until that very day.

13.In the premises, the plaintiffs’ cause of action was based on the tort of trespass, unlawful interference with the use and enjoyment of the Lots and nuisance. 

14.The defendants’ position was that they opposed the Plaintiffs’ interlocutory injunction based on various aspects of substantive law to be discussed and was focused on the serious issue to be tried on the procedural law. 

Preliminary matters

15.As a preliminary matter, the defendants allege that 9 out of the 22 defendants never received notice about the plaintiffs’ pending application for an injunction on 2 August 2012 and accordingly there has not been full and frank disclosure.

16.Miss Lorinda Lau, counsel for the plaintiffs, confirmed on 2 August 2012 that a Mr Chan Yin Han Vincent (“Mr Chan”), a solicitor for the plaintiffs, had served a written notice in Chinese on the defendants on 1 August 2012 by personally inserting them into the letter boxes of each of their homes at the Village and that the said written notice in Chinese identifies all of the defendants and warns them of a hearing to take place at 10:00 am on 2 August 2012 at the District Court whereby an injunction would be sought against them in relation to the Lots.  The same aforesaid matters were thereafter confirmed in Mr Chan’s affirmation of 3 August 2012 (“1^st Affirmation of Chan”).  As such on 2 August 2012, I did find that the defendants were properly notified on 1 August 2012 of the then pending application on 2 August 2012. 

17.As later confirmed in the 1^st Affirmation of Chan of which I accepted and relied upon at the inter partes hearing on 16 August 2012, that the written notice in Chinese was personally inserted into each of the defendants’ letter box. On a finding of the facts, I do not accept that the written notices were haphazardly thrown on the ground or that the written notices were delivered to the wrong addresses as according to the 2^nd affirmation of Man Cheung Lam filed on 14 August 2012 (“2^nd Affirmation of Man”). 

18.In any event, although the 2^nd Affirmation of Man alleged that 9 out of the 22 defendants did not receive the written notice in Chinese, nonetheless, Mr Man admitted to representing all of the defendants in the 1^st Affirmation of Man and there was no dispute that at least he himself received the written notice in Chinese relating to the hearing on 2 August 2012.

19.The 1^st Affirmation of Cheung goes further and confirms that physical assault took place at the Lots between the defendants and the plaintiffs’ surveyor, contractors and workers on 20 July 2012 and these matters were referred to in a newspaper report that villagers at the Village on 20 July 2012 prevented works being carried out relating to an organic farm and that arrests were made after physical altercations took place.  The plaintiffs’ planned organic farm is a commercial venture with extant obligations to be fulfilled by Christmas 2012.  The plaintiffs would have in its best interests to start business as soon as possible without further disruption and this gives credibility to the plaintiffs having served the written notices in Chinese on the defendants properly.

20.For the purposes of the plaintiffs’ inter partes summons, I would add that a second affirmation of Mr Chan was filed on 15 August 2012 (2^nd Affirmation of Chan”) which explained in detail his personal service on the majority of the defendants on 6 and 10 August 2012 and service by registered post on the remainder of the defendants on 13 August 2012.  As per the 2^nd Affirmation of Chan, it was stated that defendants had a single solicitors firm representing them and it does not appear that this matter is in any way contradicted.

The injunction(s)

21.The position and status of the Lots generally require some discussion. The 2^nd Lots are owned by Tang Wai Son Tong and then sublet to Tang Nim Pui on an annual basis as per a tenancy agreement dated 19 April 2010.  For completeness sake, the remaining 1 out of the 4 plots of land, namely the 1^st Lot, is owned by Tang Sam On, Tang Sum Yuen and Tang Sam Mun with a Tang Ka Hung Robert as executor of Tang Sum On taking over his interest in or about November 2007. 

22.The 2^nd Lots were sub-sublet from Tang Nim Pui to the 2^nd plaintiff starting 1 June 2012 to 31 July 2016 at a monthly rent of HK$8,000.  The 1^st Lot from Tang Sam Yuen, Tang Sum Mun and Tang Ka Hung Robert was leased to the 1^st plaintiff via a tenancy agreement dated 8 June 2012for a term of two years at an annual rent of HK$20,000.

23.The defendants have made complaint that without a tenancy agreement signed by a manager of the Tong or Tso Tong that no consent is available from the Secretary for Hong Affairs or District Officer pursuant to section 15 of the New Territories Ordinance, Cap 97.  This was the defendants’ main point in opposition to the plaintiffs’ summons relating to the cause of action in trespass and also the main point in support of the defendants’ summons of 10 August 2012.

24.The defendants also allege that Joint Fortune is the rightful tenant of 3 out of the 4 plots of land at the Lots, namely the 2^nd Lots, as opposed to the 2^nd plaintiff, with those said 3 plots of land being owned by Tang Wai Son Tong.  As such, the defendants challenge the 2^nd plaintiff’s locus as the rightful tenant and occupier of the 2^nd Lots and this was a point raised in evidence and submitted upon.  This was also a point of the defendants in opposition to the plaintiffs’ summons relating to the cause of action in trespass and also the substance of the defendants’ summons of 14 August 2012.

25.Miss Lau’s position is straightforward as her primary case is based upon trespass.  Based on the established principles of American Cyanamid, Miss Lau submitted that an order for an interlocutory injunction should be made.  Miss Lau also made it clear that the plaintiffs’ summons was also made on a quia timet basis as per Hooper v Rogers [1975] Ch 43(CA) of which the facts in the premises have established such a basis and need.

26.It is trite law that a person in possession of land could bring a suit for unjustifiable intrusion by another on his land to claim damages or an injunction or both. Likewise, a person entitled to a right of way could bring proceedings to claim an injunction and damages for substantial interference with such right.  Furthermore, the injunction (whether permanent or interlocutory) would be prima facie granted and would be denied only if special circumstances existed.  Damage suffered was not a prerequisite to the grant of an injunction in such a case, nor was the triviality of the interference alone sufficient to justify a departure from the general rule of granting such an injunction.  In relation to trespass to land, in particular for threats to trespass and acts of trespass in the future, the court was concerned with the protection of a property right which if not protected by an adequate remedy would be diminished as per Shelfer v City of London Electric Lighting Co (No 1) [1895] 1 Ch 287 and Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85.

27.Given my previous comments relating to the June and July 2012 incidents as per the 1^st Affirmation of Cheung and the continued actions of the defendants up to 15 August 2012 as per the 2^nd Affirmation of Cheung, I found that the plaintiffs had established that there was a serious issue to be tried in relation to trespass by the defendants at the Lots.

28.Despite my finding in the previous paragraph, the position of the defendants relating to their complaint that without a tenancy agreement signed by a manager of the Tong or Tso Tong that no consent is available from the Secretary for Hong Affairs or District Officer pursuant to section 15 of the New Territories Ordinance, Cap 97 needed to be considered.  Nonetheless, I found that in relation to the Lots and under these particular facts that consent was not required pursuant to section 15 of the New Territories Ordinance.

29.As per Man Ping Nam & Anor v Man Mei Kwai & Ors, CACV 193/2002, it was held by Le Pichon JA referring to Tang Man Kit & Anor v Hip Hing Timber Co Ltd, CACV 137/2002, where Rogers JA held:-

“49. That, however, is not conclusive of the matter because the judge considered that under section 15 of the New Territories Ordinance, which is the replacement of section 13, the commencement of and continuation of these proceedings is a dealing with land which requires the Land Officer's consent. On a simple construction of the section I find it difficult to envisage that the taking of proceedings based upon the non-payment of rent should be regarded as a dealing with land. The recovery of possession from a recalcitrant lessee who has failed to pay rent is a matter of management and not a dealing with land. Even if it were considered a matter of dealing with land it would be the equivalent of acquisition of land and not disposition of it. Section 15 does not require the Land Officer's consent to the acquisition of land. Section 15 only applies where land is held by aT'soorT'ong.

50.   In any event, the conclusion that the bringing of proceedings in respect of the non-payment of rent was a dealing in land is based upon the proposition that the renting of land was a matter which required the consent of the Land Officer.  That is, again, a proposition with which I do not agree.  In my view, section 13 of the New Territories Ordinance, which is now section 15 was there to ensure thatT'soland and familyT'ongland were inalienable, indivisible and perpetual: see the judgment of Deputy High Court Judge Robert Tang QC inKan Fat-Tat also known as Kan Fat v Kan Yin-Tat also known as Kan Tat[1987] HKLR 516 at 533 and the evidence of Dr Hugh Baker referred to at that passage.”

30.Rogers JA then further considered the effect of section 15 of the New Territories Ordinance on the matter:-

“55. As referred to by Stephen Selby in his article entitled "Everything You Wanted to Know About Chinese Customary Law (But Were Afraid to Ask)" (1991) 21 HKLJ 45, in particular at pages 46 and 56, the New Territories Land Ordinance 1905 provided a legal framework whereby land held under ownership of the types which had been previously customary could be accommodated by Hong Kong Laws and the English Common Law. The object of the New Territories Land Ordinance was to facilitate the conveyancing of land: see page 56. In contrast, it seems to me that the renting of land is part of management. By definition, allT'ongandT'soland which was not occupied by, for example, an ancestral hall would almost certainly have to be rented, whether it be to members of theT'soorT'ongor outsiders. Given the amount of land which is held byT'sosandT'ongsand, indeed, to this day still so held, if the renting ofT'soorT'ongland were considered to require the consent of the District Officer it would seem that such a provision has been honoured by its universal breach. In this respect, I would add that I have had the advantage of seeing the relevant part of the draft judgment of Le Pichon JA in the case ofMan Ping Nam, the manager of the Man Sham Chung Wui v Man Mei Kwai (by original action) Man Mei Kwai v Man Ping Nam as manager of Man Sham Chung Wui and others,CACV 193/2002and I respectfully agree with what has been said there on this topic.

56.   If, indeed, it were necessary to obtain the Land Officer's consent to the commencement of these proceedings on the basis that consent was required for any letting of the land, then the curious situation would arise whereby a manager who had let land without consent could not take steps to rectify his error without obtaining the consent of the Land Officer.  Put in another way, if the point be right, the original letting was without consent and is therefore liable to be set aside.”

31.To be complete in the matter, the case was subject to a rehearing by a differently constituted and full bench in the Court of Appeal due to procedural difficulties as found by the Court of Final Appeal in FACV 11/2003, [2005] 1 HKLRD 572.  Nonetheless, a newly constituted full bench in the Court of Appeal did not manifestly differ on this particular point as held in the judgment of Cheung JA:-

“79. InMan Ping Nam, the manager of Man Sham Chung Wui vMan Mei Kwai(CACV No.193 of 2002) this Court (Le Pichon and CheungJJA and StoneJ) by a majority held that consent is not required when a manager leased land belonging to section15 landholding organization. I took the contrary view in that case. Imaintain that view. However, the majority view must prevail in this case because of the application of the principle of precedence. Moreover, while in a strict sense recovery of land is a form of dealing in land, its true nature is really an act of management of the land. The Heung is not disposing of or removing the land from its control. I do not regard consent from the District Officer is required.”

32.Given my findings on the facts and the law, I found that the plaintiffs should be granted an interlocutory injunction against the defendants on the plaintiffs’ cause of action in trespass and that the defendants’ summons of 10 August 2012 relating to, inter alia, trespass should be dismissed.

33.In relation to the defendants’ point on Joint Fortune, the 2^nd Affirmation of Man alleged that a Mr Lau Wai Shing ofJoint Fortune went onto the 2^nd Lots at the Lots and stated that he was the rightful tenant and occupier and would stop the 2^nd plaintiff from continuing their works.

34.The matters relating to Joint Fortune were also matters that have no real substance since they were unrelated to the present action and I also found the 2^nd Affirmation of Man to be supported by the barest of evidence which did not stand up to scrutiny. 

35.Furthermore, the fact that Joint Fortune might in some manner have rights to the 2^nd Lots does not defeat the plaintiffs’ position in relation to trespass since the essential element to be established is that a person in possession of land could bring a suit for unjustifiable intrusion by another on his land to claim damages or an injunction or both and I had found this was established by the plaintiffs.

36.In the present case, both the plaintiffs and the defendants alleged nuisance against the other.  Even if the plaintiffs’ cause of action on trespass were not established, I found that the basis for the plaintiffs’ claim in nuisance was established on a serious issue to be tried based on the matters in June and July 2012 and then also up to 15 August 2012  as already discussed.  The legal basis for my finding of nuisance as against the defendants are expressed succinctly in Clerk & Lindsell on Torts (20^th ed) at §20-01 as relating to private nuisance.

37.On the other hand, the defendants’ claim for nuisance by its summons of 10 August 2012 was based upon the evidence found collectively in the 1^st and 2^nd Affirmation of Man. 

38.Upon considering the evidence found in the 1^st and 2^nd Affirmations of Man collectively, the extent of that evidence which is even remotely relevant is that allegedly the plaintiffs put “dirty rocks and stones” and “cracked rocks and stones also cause pollution to the air which could damage the health of the residents nearby, including the 1^st to 22^nd Defendants” onto the Lots.  The 2^nd Affirmation of Man also stated that a feng shui master named Choi Pak Lai alleged that the “unauthorized development” by the plaintiffs would affect the position of the memorial altar of the Village. 

39.I found that there simply was no real substance to the defendants’ assertions on their claim to nuisance as well as there being unidentified sources for the scant supporting documents which were in any event equally of no real substance or assistance in advancing the defendants’ claims.  In any event, I found that the defendants were unable to establish a serious issue to be tried in this regard.

40.Mr Jerry Jim for the defendants also invited me to consider that by the plaintiffs allegedly placing “dirty rocks and stones” and “cracked rocks and stones” at the Lots was inconsistent with the plaintiffs starting an organic farm.  I found this untenable since this was a bald assertion with random photographs hardly showing any such “dirty rocks and stones” or such other matters.  The said photographs do not indicate that the alleged “dirty rocks and stones” were to be found on the Lots per se.  I would add that there was no evidence that it was the plaintiffs or its works to the Lots that caused “dirty rocks and stones” or such other matters to be at the Lots and in any event I found the same to not have happened.

41.Given my findings on the facts and the law, I found that the plaintiffs should be granted an interlocutory injunction against the defendants on the plaintiffs’ cause of action in nuisance and that again the defendants’ summons of 10 August 2012 relating to, inter alia, nuisance should be dismissed. 

42.Although the defendants’ arguments in support of nuisance as per the defendants’ summons of 10 August 2012 have failed, nonetheless my order relating to the defendants’ summons of 15 August 2012 requires some explanation since it related to the general matter of nuisance at the Lots.

43.The reason for my allowing the adjournment of the defendants’ summons of 15 August 2012 was that after hearing all arguments on the plaintiffs’ inter partes summons for an interlocutory injunction together with the defendants’ various summonses relating to 16 August 2012 which were made in favour of the plaintiffs, the parties had yet to file any evidence specific to the question of consolidation nor had the plaintiffs in DCCJ 2817/2012 filed a statement of claim.

44.In any event, I found that the defendants’ summons of 15 August 2012 for consolidation did not require my immediate determination on 16 August 2012 nor did the said summons seek any relief that was interrelated to the matters to be determined on 16 August 2012.

45.For completeness sake, I now come to succinctly explain my findings on the remaining aspects of the plaintiffs’ inter partes summons and the defendants’ summonses.

46.The plaintiffs’ position on irreparable damage were that based on the dicta of Billion Star Development (supra), damage suffered was not a prerequisite in such cases as relating to trespass.  Furthermore, unless the defendants were restrained then the survival of the plaintiffs’ commercial venture in the organic farm which was yet to be constructed yet slated for commencing trade by Christmas 2012 would be irreparably damaged.

47.The defendants’ position related to matters of the Village’s feng shui and the alleged nuisance of the plaintiffs’ acts on the Lots were also irreparable matters.

48.Given my findings in relation to both trespass and nuisance found in favour of the plaintiffs on both the facts and the law, I found that the plaintiffs did establish irreparable damage whereas the defendants had fallen far below the required threshold. 

49.I would hasten to add that the extent of disadvantage to the plaintiffs was patently clear whereas the defendants did not specifically state where the defendants’ respective homes were in relation to the Lots and thus the extent of the plaintiffs’ alleged nuisance was simply unknown.  Furthermore, the matter of the Village’s feng shui being compromised possibly applied to the Village as a whole but again the impact on the defendants directly was unknown.

50.Both the plaintiffs’ and defendants’ position on balance of convenience was similar to their respective stances on irreparable damage and I repeat the same. 

51.On all the circumstances of the case, I would also add that on a balance of convenience there was no or no apparent discernible loss to the defendants and the loss to the plaintiffs was the likely, if not unavoidable, failure to commence trade for its organic farm business by Christmas 2012.  The decision I made was the course of action which appeared to carry the lower risk of injustice to the parties were I found to be incorrect in my decision as per the principle laid down in Music Advance Limited v The Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 as per Ma J (as he then was).

52.Both the plaintiffs’ and defendants’ position on the cross undertaking as to damages was dissimilar since I found the plaintiffs to be comparatively more credible in this regard since at least the 1^st plaintiff had stated in the 2^nd Affirmation of Cheung that he owned property in the Village whereas the 1^st and 2^nd Affirmation of Man was silent as to any specifics whatsoever.

The order and protection to the parties

53.At the end of the hearing, the parties were extremely helpful in tailoring the order which I granted in preventing, inter alia, further trespass to the Lots and nuisance by cooperating to physically delineate where the borders of the Lots were. 

54.The said specific requirements that were made a part of the order were to avoid any breach of the order granted against the defendants but to also provide the defendants with clear physical markings so that they would not unknowingly be breaching the order and thus be in contempt of court.  The specter of criminal charges against certain defendants due to the matters on, inter alia, 20 July 2012, remained at large as did the possibility of further physical altercations which were matters that the order being so specifically made with physical delineation on the borders of the Lots themselves was attempting to avoid.

55.I would add that the foregoing steps relating to the order were carried out since the events, especially those of 20 July 2012, caused obvious concern and were aimed at preventing the need for a further hearing before the court as was the case in Waverley Borough Council v Hilden & Ors [1988] 1 WLR 246 relating to a civil injunction granted to prevent further criminal acts which were being flouted.

56.Accordingly, I granted an interlocutory injunction to the plaintiffs and I dismissed the defendants’ summonses save for the defendants’ summons relating to consolidation which was adjourned.

57.Lastly, I thank Miss Lau and Mr Jim for their assistance.

Miss Lorinda Lau and Mr Steven Liu instructed by Paul W Tse, for the plaintiffs

Mr Jerry Jim Yiu Ming of Raymond Chan, Kenneth Yuen & Co, for the defendants