Cheung Lo Fat and Others v. Tang Kung Leung and Others

DCCJ 654/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 654 OF 2013

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D E C I S I O N

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1.This is the application by the 10th defendant for leave to appeal to the Court of Appeal against the decision I made on 11 October 2013.

2.The defence counsel for the 10th defendant submits that the claims of the plaintiffs in the second amended statement of claim were actually based on two foundations of right of way which are very different in scope and nature, but this court failed to draw such a difference.  The first foundation of the right of way is one by virtue of grant of deed, paragraph 4 of the second amended statement of claim, the right of way, and the second foundation of right of way is another not exceeding 10 feet by virtue of the undertaking given by the 3rd to 5th defendants which was included in the interlocutory injunction dated 10 April and extended by the learned judge’s order made on 28 May 2013 to 27 June 2013.

3.The claim against the 10th defendant is based on the 10 feet right of way. The defence counsel submits that there is no material evidence to support the claim that Mr Liu participated in the obstruction of the 10 feet right of way or that the 10 feet right of way was obstructed contrary to the undertaking.  Then he set out in detail the submissions to support his submission.

4.I do not accept such submission.  Very clearly I set out in the decision under paragraphs 7 to 9 of the decision relating to the advice and/or assistance given by the 10th defendant to the defendants concerned to obstruct the passageway. 

5.There is no necessity to go into minute detail in respect of such evidence, but certainly it would be wrong to say that there is no material evidence that is pleaded in the statement of claim, and the statement of claim is supported by the affirmation of the plaintiffs in question.

6.The defence counsel submits that even though the plaintiffs do say that the right of way so pleaded under the second amended statement of claim has been obstructed somehow, the plaintiffs do not specifically say that the 10 feet right of way under the undertaking was obstructed by the defendants to the extent that the 10 feet access was no longer available.

7.The issue in this case is whether the 10th defendant did advise and/or assist the defendants to obstruct the passageway.  That is the main concern.  All the facts disclosed in the statement of claim are related to one another.  It is not the case that the so-called right of way by virtue of grant of deed and the so-called 10 feet right of way are separable and distinct and unrelated to one another.  All the facts covering the so-called right of way by virtue of grant of deed and the 10 feet right of way cannot be separated from one another.

8.It is not necessary for me to go into minute examination of the evidence, because this is not a full trial.  What I am concerned is on the evidence disclosed by the affirmation concerned.  Does it support the amended statement of claim or not?  I found that there was. 

9.So the 10th defendant must be joined so that all the matters in issue in this case can be fully determined in the trial.  For that reason, the 10th defendant is required to be joined.  There is no hope of success in the Court of Appeal.  There is no merit in this application.

10.So I dismiss the application made by the 10th defendant.

(Submissions on costs)

11.The 10th defendant do pay costs to the plaintiffs to be taxed if not agreed, with no certificate for counsel.

Mr Yip Shui-man, instructed by Raymond Chan, Kenneth Yuen & Co, for the 1st to 9th plaintiffs

Mr Vod Chan, instructed by T K Tsui & Co, for Liu Yuen-chung, Steven

Other defendants not involved

Please refer to HCMP152/2014 for the relevant appeal(s) to the Court of Appeal.