Pong Seong Teresa and Others v. Chan Norman and Another
Read the full judgment text of HCA 627/2010 on BabelCite. This High Court CFI judgment was delivered on 13 August 2014.
1. There are two actions before the court. They both arose out of the disputes between the parties residing at 34G and 34F, Braga Circuit, Kadoorie Hill, Kowloon, Hong Kong. In HCA 627/2010 (“the Harassment Action”), the plaintiffs claim injunctive relief against the defendant to prevent further acts of harassment and assault. In HCA 726/2011 (“the Nuisance Action”), the plaintiff claims injunctive relief against the defendants to prevent further acts of nuisance. No damage is claimed in either
Cited by 8 cases · Cites 9 cases
|
HCA 627/2010 & HCA 726/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 627 OF 2010 ________________
_________________ AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 726 OF 2010 ________________
________________ (HEARD TOGETHER) Before: Deputy High Court Judge Linda Chan SC in Court Dates of Hearing: 4, 5, 6 and 10 March 2014 Date of Judgment: 13 August 2014 ________________________ J U D G M E N T ________________________ 1.There are two actions before the court. They both arose out of the disputes between the parties residing at 34G and 34F, Braga Circuit, Kadoorie Hill, Kowloon, Hong Kong. In HCA 627/2010 (“the Harassment Action”), the plaintiffs claim injunctive relief against the defendant to prevent further acts of harassment and assault. In HCA 726/2011 (“the Nuisance Action”), the plaintiff claims injunctive relief against the defendants to prevent further acts of nuisance. No damage is claimed in either action. BACKGROUND FACT 2.The following background is not in dispute. 3.The 1st plaintiff (“Mrs Tam”) and the 2nd plaintiff (“Mr Tam”) in the Harassment Action are a married couple residing at G/F of 34G. The 3rd plaintiff (“Ms Tam”) is their daughter, who is married to a Mr Chai. Ms Tam and Mr Chai reside at 2/F of 34F. The defendant in both actions (“Mr Chan”) and his mother (“Mrs Chan”), who is the 2nd defendant in the Nuisance Action, reside at 1/F of 34F. Although the parties are neighbours, they are not acquainted with each other. 4.Braga Circuit is a residential development with over 50 years’ history. It has six adjoining buildings with 34F and 34G forming one block and sharing the same entrance, lobby and stairwell. The other two blocks are 34H/34J and 34K/34L. Each building comprises of G/F, 1/F, 2/F, 3/F, penthouse and the basement floor (“B/F”), with 2/F at the street level while 1/F, G/F and B/F are below street level. 5.The three blocks of buildings share a common main gate and are located like a semi‑circle with 34L/34K at one end next to the main gate, 34J/34H in the middle and 34G/34F at the other end. After passing through the main gate, there is an open ground used as car park for owners and occupiers of the buildings (“the Carpark”). 6.Each building is separately incorporated. Mrs Tam is the chairman of the incorporated owners (“the IO”) of 34G. All the IO engage the same management company, which employ watchmen for day and night shifts who are based at the management office located at 34L (“the Office”). 7.There is no dispute that there are unauthorised building works (“the UBWs”) and unauthorised structures at 34F and 34G. Since at least 2005, Mr Chan has been making complaints to the Buildings Department, which led to the issue of statutory orders against various owners including Mr Tam and Mrs Tam. 8.On 16 December 2008, Mr Chan brought two officers of the Buildings Department to inspect certain UBWs and unauthorised structures at 34F and 34G. At the main entrance, Mr Kwok Shek Chun (“Mr Kwok”), a day‑shift watchman, recognised the two officers are from the Buildings Department and requested them to produce their identity card for registration. However, Mr Chan claimed that the two officers are his friends and refused to let Mr Kwok to register their identity. An argument ensued and police was called in to deal with their dispute. As will be seen below, this was one of the many occasions when the parties called the police to deal with disputes involving Mr Chan. 9.While the police officers were making enquiries near the main gate where the dispute took place, Mrs Tam walked passed and asked one of the police officers, Sergeant Wong, what was going on. Shortly afterwards, an argument arose between Mr Chan and Mrs Tam. This event was described by the plaintiffs as “the First Encounter” in the Statement of Claim filed in the Harassment Action (“the SOC”), and marked the beginning of a series of disputes involving the plaintiffs and Mr Chan and later, Mrs Chan, which are the subject matters of the two actions. 10.The Harassment Action was commenced by the plaintiffs on 4 May 2010 and, on the same day, the plaintiffs applied for an interlocutory injunction to restrain Mr Chan from, inter alia:
Upon the undertaking given by Mr Chan (then appearing in person) to the court at the hearing on 7 May 2010 to abide by the terms of paragraphs 1 and 2 of the summons, no order was made on the summons. 11.The Nuisance Action was commenced by Ms Tam on 26 April 2011 and, on the same day, Ms Tam applied for an interlocutory injunction against Mr Chan and Mrs Chan. At the hearing of the summons on 6 May 2011, Mr Chan and Mrs Chan (then acting in person) gave an undertaking to the court that they would not cause or allow loud thumping noises and excessively loud television and/or radio noises to emanate from their premises at 1/F of 34F from 11 pm to 7 am. 12.There is no dispute that after the aforesaid undertakings given to the court, the defendants have not done any of the acts enjoined by their undertakings. 13.Mr Raymond Fong, counsel for the defendants in both actions, informs the court that Mr Chan no longer resides at 1/F of 34F, as he has since 1 August 2012 moved to and resided in a service apartment. Moreover, since June 2012, Mrs Chan’s premise at 1/F of 34/F has been put up for sale. The significance of these is, says Mr Fong, that the disputes between the parties and their claims against one another have become “purely historical and academic”. Mr Fong also points to a letter dated 20 February 2014 in which Mr Chan and Mrs Chan made an open offer to settle the disputes on terms that the Harassment Action and the Nuisance Action be discontinued with no order as to costs. 14.Mr Christopher Chain, counsel for the plaintiffs, objects to the belated disclosure of the letter and states that the plaintiffs are not aware of the fact that Mr Chan has moved out of his residence at 1/F of 34F. Mr Chain submits that in the absence of conclusive evidence to show that Mr Chan and Mrs Chan will never return to and reside at their residence, it is not open to the defendants to ask the court to proceed on the assumption that they will cease to reside at their residence or that the injunction sought is no longer necessary. I agree. ISSUES Harassment Action 15.It is the plaintiffs’ case that during the First Encounter, without provocation and for reasons unknown to Mrs Tam, Mr Chan shouted obscenities and use vile language loudly towards her. Mr Chan threatened that he would shout and swear at Mrs Tam every time he saw her from then onwards. 16.From the First Encounter up to about 11 March 2010, on each of the five occasions when Mr Chan saw Mr Tam, Mrs Tam and/or Ms Tam, he shouted obscenities and vile language loudly whilst pointing and gesturing towards them in a progressively angry, hostile, and aggressive manner. These occasions are described as the “Further Encounters” in the SOC. On one of these occasions, Mr Chan used a camera to take pictures of Mr Tam and Mrs Tam without their consent. 17.This was followed by two “spray painting incidents” (as defined in the SOC). It is the plaintiffs’ case that on 12 March 2010, Mr Chan unlawfully spray‑painted on the wall immediately outside the entrance to the premise of Mr Tam and Mrs Tam at G/F of 34G and the adjacent stairwell area with black paint with words “COMMON AREA”, “NOT A STORAGE SPACE”, “UNAUTHORISED BUILDING WORKS” and “NO BEGGING FOR MONEY”. The other incident took place on 11 April 2010 when Mr Chan sprayed‑painted the same words (except the last set of words) on the same areas with red paint. 18.The plaintiffs say that the cumulative acts of Mr Chan have caused them to feel distress, to fear for their personal safety, and to feel apprehension of imminent unlawful bodily contact. Such conduct, the plaintiffs contend, constitutes the tort of assault and the tort of harassment against the plaintiffs. The conduct only came to an end when Mr Chan gave the undertaking to the court to abide by the terms of the injunction sought by the plaintiffs. 19.In his defence and counterclaim, Mr Chan denies all allegations made by the plaintiffs. 20.In respect of the First Encounter, Mr Chan says that he brought two officers from the Buildings Department to deal with the UBWs at 34F and 34G, but Mr Kwok unlawfully denied their access. This led to Mr Chan calling the police to assist. While Mr Chan was talking to the police, Mrs Tam suddenly interrupted and said that she was the chairman of the IO of 34G, and wanted to know why the police were there. This was followed by Mrs Tam verbally abusing Mr Chan by asking derogatory questions about Mr Chan’s racial origin. Mrs Tam’s aggression and conduct, says Mr Chan, might have been due to the fact that the UBWs at 34G had been built by her. Mr Chan says that he did not reply to Mrs Tam at the time. 21.As for the Further Encounters, Mr Chan’s case is that he never approached the plaintiffs and denies all allegations. On one occasion when Mr Chan was walking towards his car, Mrs Tam and Ms Tam abused Mr Chan using vile language, obscenities and gestures and in response, Mr Chan replied with a few similar words and gestures in non‑violent manner and then drove off his car. 22.As for the spray paint incidents, Mr Chan denies all allegations and says that he has no knowledge of such matters. 23.In his counterclaim, Mr Chan pleads that he has suffered damages by reason of the plaintiffs’ conduct. However, all the facts pleaded in support of his claim have been struck out. Curiously, the only substantive relief which has not been struck out is an injunction to restrain the plaintiffs from disturbing or pestering him and an order that the plaintiffs shall abide by the terms of the deed of mutual covenant. It is difficult to see how Mr Chan can seek this relief when all the material facts in support of his counterclaim have been struck out. 24.In his opening submissions, Mr Fong does not make any submission on the counterclaim, presumably because he recognises that the counterclaim is defective and is bound to fail in limine. As Mr Chan no longer pursues his claim, I make an order to dismiss the counterclaim. 25.In his written opening submissions, Mr Fong does not dispute that the tort of harassment exists and that it is governed by the principles set out in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, but submits that the plaintiffs failed to satisfy the requirements for such tort. However, in his oral submissions, Mr Fong contends that there is no tort of harassment in Hong Kong. 26.Accordingly, the issues required to be determined in the Harassment Action are as follows:
Nuisance Action 27.It is Ms Tam’s case that between November 2010 and 26 April 2011, Mr Chan and Mrs Chan have wrongfully interfered with her right of quiet enjoyment of her premises at 2/F of 34F by causing and/or allowing an unreasonable level of noise to emanate from their premises at 1/F of 34F, which included many instances of loud thumping noises as if someone was striking or pounding the ceiling, and causing excessively loud television and/or radio noises to emanate from their premises, some of them took place from late at night to the early hours of the next morning. Despite repeated complaints made to the management company and the police, Mr Chan and Mrs Chan did not stop the noises complained of by Ms Tam. 28.It is therefore necessary, says Ms Tam, for the court to grant an injunction against Mr Chan and Mrs Chan to restrain them from causing and/or allowing unreasonable levels of noise to emanate from their premises. At trial, Mr Chain confirms that the injunction sought by Ms Tam is limited to enjoining Mr Chan and Mrs Chan from causing excessive noises from 11 pm to 7 am. 29.Mr Chan and Mrs Chan deny all the allegations. Their case, as pleaded in the defence and counterclaim, is that prior to receiving the writ in the Nuisance Action, no one has ever approached or contacted them regarding the noises complained of. Essentially, their defence is one of denial. Nevertheless, in their amended defence and counterclaim, Mr Chan and Mrs Chan contend that whilst there were three police reports relating to Ms Tam’s complaints, those reports only stated that “enquiry revealed that a very low volume of radio noise was heard” and “some TV noise was heard at a reasonable level”. 30.Mr Chan and Mrs Chan also make a counterclaim against Ms Tam for nuisance as a result of certain loud noises said to have been emanated from Ms Tam’s premises, which comprised of people walking and running in her premises every day and night, noises of moving chair or furniture or dropping things almost on a daily basis, and the noises and vibrations of the air conditioners installed on the exterior walls of Ms Tam’s premises. Mr Chan and Mrs Chan claim an injunction against Ms Tam from interfering with their right of quiet enjoyment of their premises. 31.Mr Fong does not in his opening submissions deal with the defendants’ counterclaim and, upon this court’s enquiry, he confirms that the defendants no longer pursue their counterclaim. I therefore make an order to dismiss the defendants’ counterclaim in the Nuisance Action. 32.Accordingly, the only issues fall to be determined in the Nuisance Action are:
DISCUSSION Assessment of witnesses 33.Before considering the evidence of the witnesses on the main issues, it is necessary to assess the credibility of the witnesses called by the parties as the respective cases advanced by the parties are largely based on their oral evidence and the versions of event put forward by the plaintiffs and the defendant are diagonally opposite. As stated above, the only defence put forward by the defendants is one of denial. It is not Mr Chan’s case that he did the acts complains of by the plaintiffs but contends that such acts do not constitute the tort of assault. Nor is it the defendants’ case that they did make noises at their premises but contend that such noises were not excessive or that they were not made at the late hours. 34.On behalf of the plaintiffs, Mrs Tam, Ms Tam, Mr Kwok and Ms Charita Estalota Comon (“Ms Comon”) give evidence in court. Mr Tam for health reason does not attend court to give evidence. I note that in his witness statement, Mr Tam merely confirms what has been set out in Ms Tam’s statement insofar as he has personal knowledge of such matters. There is no suggestion that any adverse inference should be drawn against the plaintiffs due to Mr Tam not giving evidence in court. 35.Mr Kwok was (and still is) a watchman employed by the management company. He is an independent witness. Mr Fong submits that Mr Kwok is not an honest and reliable witness and says that he is evasive when being pressed and repeatedly tries to avoid answering questions by saying that he cannot remember. I do not think the criticism is fair or justified. While it is correct that Mr Kwok says a number of times that he cannot remember the matters asked of him during cross‑examination, this is perfectly understandable as many of the questions put by Mr Fong are directed to some trivia such as who called the police first or who said what on various occasions. One would not expect a person to be able to remember such trivia. 36.Mr Chan tries to undermine the credibility of Mr Kwok by suggesting that Mr Kwok has personal grudges against him as a result of the manner in which dealt with Mr Kwok in the past. He relies on three incidents. 37.The first incident took place on the same day as the First Encounter before Mrs Tam came to the scene. Mr Chan alleges that Mr Kwok unreasonably refused to allow the officers from the Building Department accompanied by Mr Chan to enter into Braga Circuit. Under cross‑examination, Mr Kwok explains that at that time, he recognised that they were the officers from the Buildings Department as they had visited the estate before, and he requested the officers to produce their identification cards for registration. This prompted Mr Chan to lose his temper and he began to scold Mr Kwok in a very fierce tone, saying that the officers are his friends and that Mr Kwok had no right to make the request. Thereafter police were called to the scene. Mr Kwok says that he did not refuse to allow the officers to enter into Braga Circuit on that occasion, or indeed, the previous occasions when Mr Chan brought the officers from the Buildings Department to inspect the UBWs and Mr Kwok never denied their entry. The evidence of Mr Kwok is not seriously challenged by Mr Fong during cross‑examination and I accept it. 38.As for the second incident, Mr Chan alleges that when he and the two officers from the Buildings Department were inspecting the UBWs at the roof of 34F and 34G, they were locked up by Mr Kwok. In support of this allegation, Mr Chan produces some photos showing the officers and Mr Chan looking angrily while they were at the roof. Under cross‑examination, Mr Kwok says that on that occasion, Mr Chan went to the roof with two officers from the Buildings Department and closed the gate behind them loudly, and when Mr Kwok arrived at the gate, Mr Chan kicked the gate and acted very fiercely whereupon Mr Kwok called the police. Mr Kwok explains that to his understanding, the gate did not have any lock and in any event, he did not have the key to any lock which might have been installed on the gate, and it was impossible for him to lock up Mr Chan and the officers as alleges. This evidence of Mr Kwok is not challenged and I accept it. There is really nothing in support of Mr Chan’s allegation that Mr Kwok deliberately locked him up at the roof. 39.As for the third incident, Mr Chan alleges that Mr Kwok removed some chattels belonging to the defendants from the common area. Mr Kwok accepts that he did remove the chattels from the common area but explains that he was simply doing his job and he did the same to all the items found at the common area, irrespective of who owned those items. I am unable to see how Mr Kwok’s act can be criticised. 40.Although the above incidents do not relate to the main issues as to whether Mr Chan did the acts complained of by the plaintiffs, they go to show the extent to which Mr Chan is prepared to make unsubstantiated allegations against the other in order to suit his own purposes. By contrast, throughout his cross‑examination, Mr Kwok impresses me as an honest witness who tries his best to give evidence on matters within his knowledge and I accept his evidence. Where there is inconsistency between the evidence of Mr Kwok and that of Mr Chan, I prefer the evidence of Mr Kwok. 41.Ms Comon is the housemaid employed by one Miss Chow who lives at G/F of 34F. She is an independent witness. Ms Comon gives her evidence in a straight‑forward manner. There is no suggestion that Ms Comon is not an honest witness and I accept her evidence. 42.Mrs Tam strikes me as an honest witness. She gives her evidence in a direct and forthcoming manner. She is cross‑examined at some length as to whether it was she who instigated the argument with Mr Chan during the First Encounter. Mrs Tam admits that it was she who approached the police and asked what had been going on and she told Sergeant Wong that Mr Chan was not the chairman of the IO of 34F. She also admits that she did say words to the effect that Mr Chan was wasting police’s time and that he should not be speaking English with the police when he could speak fluent Cantonese. She explains that she said those words because there had already been many occasions when police were called to Braga Circuit due to the arguments and complaints involving Mr Chan. There is no dispute that police were called on many occasions to deal with incidents involving Mr Chan. Nor is there any dispute that Mr Chan is fluent in Cantonese but chose to speak to the police in English. In these circumstances, it is not unreasonable for Mrs Tam to say what she said. 43.Overall, the focus of Mrs Tam’s cross‑examination is that she had no reason to apprehend any physical injury during the First Encounter or the incident at the Carpark as recorded by a third party which shows that Mr Chan was shouting and yelling at Mrs Tam, Mr Tam and Ms Tam using vile words (“Recorded Incident”) and the spray paint incidents. Other than this, it is not suggested by Mr Fong at cross‑examination that Mrs Tam’s evidence is in any way untrue or incorrect. I prefer Mrs Tam’s evidence to the extent that it is inconsistent with that of Mr Chan. 44.Ms Tam impresses me as an honest witness. She answers all the questions put to her in a direct and clear manner. Where she is unable to recall or has no personal knowledge of the details of certain incidents asked of her, Ms Tam readily accepts that she does not have such knowledge even though such matters are supportive of the plaintiffs’ case. I accept her evidence. 45.Madam Chan Tsui Jean (陳翠珍) (“Madam Chan”) was employed by Ms Tam as nanny and resided at 2/F of 34F from 28 November 2010 to end March 2011 to help Ms Tam to take care of her new born baby. Madam Chan is an independent witness. Her evidence is confined to the Nuisance Action and relates to her own experience of hearing the noises emanated from 1/F of 34F, their nature, frequency, loudness and the complaints then made by Ms Tam. Her evidence is straight‑forward and largely corroborates with the evidence of Ms Tam. In my view, Madam Chan is an honest witness and I accept her evidence. 46.Madam Shum Hau Yuen (“Madam Shum”) is the wife of Mr Chan. She was married to Mr Chan in late 2011 and started residing at 1/F of 34F in November 2011. At that time, the acts complained of by the plaintiffs already came to an end following the undertakings given by the defendants. It is clear that Madam Shum has no independent knowledge of the events which are the subject matters of the Harassment Action and the Nuisance Action. Her evidence is confined to an incident which took place in September 2011 (“Post‑writ Incident”). Despite the fact that the Post‑writ Incident was recorded by CCTV and there is no issue on its authenticity, Madam Shum gives evidence which is contradictory to what was recorded and even seeks to blame Mr Chai for provoking Mr Chan by hitting his car, when it is clear from the video that Mr Chai did no such thing. I find Madam Shum’s evidence on the Post‑writ Incident to be incredible and I do not accept it. 47.Mr Chan is obviously a highly qualified professional, a matter he places some emphasis in his witness statements. He is proficient in English and Cantonese. Throughout his evidence, Mr Chan is very guarded and is generally evasive. He refuses to accept any matter which may be supportive of the plaintiffs’ case or destructive of his case, even in the face of contemporaneous documents and records. On the whole, I find Mr Chan’s evidence to be incredible. As the following evidence show, Mr Chan seems to have little respect for the truth and is prepared to say anything to suit his own purposes:
48.As for Mrs Chan, her evidence largely echoes that of Mr Chan. In relation to the Post‑writ Incident, she alleges that Mr Chai turned back to hit Mr Chan’s car while he stood between Ms Tam and Mr Chan’s car. As regards the excessive noises complained of by Ms Tam, she asserts that their premises was always very quiet and that she and Mr Chan never made the noises complained of by Ms Tam. Mrs Chan also denies having knowledge of any complaints made by Ms Tam about the noises including the five occasions recorded in the letters from the police. For the same reasons set out in sub-paragraphs (2) and (3) of the last paragraph, I do not consider the evidence given by Mrs Chan to be credible and I reject it. Is there a tort of harassment? 49.Mr Chain submits that the tort of harassment exists at common law. He relies on the recent judgment in Lau Tat Wai where Anthony Chan J held (at 1206-1211) that there is a tort of harassment in Hong Kong for the following reasons:
50.As regards the parameters of the tort of harassment, Mr Chain summarises the principles propounded in Lau Tat Wai as follows:
51.On the other hand, Mr Fong submits that the tort of harassment does not exist at common law, relying on the following cases:
52.Mr Fong submits that the judgment of the Court of Appeal in 朱祖永was apparently overlooked by the author of Tort Law in Hong Kong, op cit, pp 717‑719 which, in turn, cast doubt on the correctness of his observation that the decision of DHCJ Carlson in Etacol “may signal the beginning of the development of the tort [of harassment] in Hong Kong”. Mr Fong also submits that 朱祖永, which was decided after the Court of Appeal’s judgment in Wong Tai Wai David, represents the current law. 53.However, as far as English authorities are concerned, I do not think that the position whether there is a tort of harassment at common law is as clear as Mr Fong suggests. 54.In Khorasandjian, Dillon LJ (with whom Rose LJ agreeing), at p 738C‑D, expressed doubts about the correctness of Waterhouse J’s statement in Patel, and refused to give weight to the general dictum that there is no tort of harassment. Only Peter Gibson J, in his dissenting judgment, agreed with Waterhouse J’s statement in Patel and expressly disagreed with the holding in Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20, where Scott J held that unreasonable harassment of the plaintiffs’ exercise of a right available to them (in that case, the right to use the public highway to go to work) would be tortious (at p 742G‑744D). 55.Similarly, in Burris, Sir Bingham MR expressed disagreement on Waterhouse J’s statement in Patel and said, at p 1378H, “Nor, in the light of the later authority, can the view be upheld that there is no tort of harassment.” 56.Finally, in Hunter, the House of Lords did not express any concluded view on whether the tort of harassment existed under common law and said:
57.Mr Chain submits that the Court of Appeal’s judgment in 朱祖永was apparently in conflict with its judgment in Wong Tai Wai David and, therefore, it was open to Anthony Chan J in Lau Tat Wai to choose which one to follow, and the same applies to this court, citing Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (A Firm) [1979] Ch 384 at 405. However, I do not think the passage cited by Mr Chain supports his submission. In Midland Bank Trust Ltd, Oliver J (as he then was) said that where the Court of Appeal was faced with conflicting decisions:
As stated above, Mr Fong submits that I should follow the latest decision of the Court of Appeal in 朱祖永. There is no answer from Mr Chain on the point or why this court is not bound by朱祖永. In any event, it does not seems to me the judgments of the Court of Appeal in 朱祖永and Wong Tai Wai David are in conflict, as the Court of Appeal did not in Wong Tai Wai David hold that there is a tort of harassment at common law. 58.Nevertheless, Mr Chain submits that “there are strong policy reasons for recognizing the existence of a tort of harassment”, as stated by Anthony Chan J in Lau Tat Wai at 1206‑1208, and “unless the Defendants can counter these strong policy reasons, there is no reason why this Court should not recognise the existence of the tort of harassment and continue its incremental development in line with the traditions of the common law”. With respect, I do not think this submission is right. The burden is on the plaintiffs to satisfy the court that there is a tort of harassment at common law and, unless and until the court is so satisfied, the defendant does not have to counter any “strong policy reasons”. 59.In light of the judgment of the Court of Appeal in 朱祖永, I am bound to hold that there is no tort of harassment at common law and it is not necessary for me to express any concluded view on the issue. 60.If, contrary to my view, this court is free to choose whether to follow the judgment of the Court of Appeal in 朱祖永or Wong Tai Wai David, I am inclined to follow the judgment of朱祖永for the following reasons:
61.For the above reasons, I hold that there is no tort of harassment under Hong Kong law. Tort of assault 62.There is no dispute that the elements of the tort of assault are accurately set out in Clerk & Lindsell on Torts, 20th edn, at §15‑12 as follows:
63.Threatening conduct my constitute assault. As stated in Clerk & Lindsell on Torts, 20th edn, at §15-13:
64.Mr Chain submits that what constitutes assault is determined on an objective basis, so that apprehension of infliction of force must be reasonable in all the circumstances of the case, relying on Clerk & Lindsell on Torts, at §15‑12. However, in appropriate circumstances and taking all factors of the case into account, even merely making phone calls and keeping silent can constitute assault (Wong Wai Hing v Hui Wei Lee, HCA 2901/1998, 29 March 2000[1], at §41 per Sakhrani J). Mr Fong on the other hand submits that mere threatening words do not constitute an assault and the act alleged to constitute assault must be an act threatening direct physical contact with the plaintiff, citing Clerk & Lindsell on Torts, at §15-13. 65.I do not think there is any real difference in the submissions. Whether the act complained of by the plaintiff constitutes an assault must depend on all the circumstances including the nature of the act and the manner in which it was made and the court would decide whether such act would put a reasonable person in fear of physical violence. This approach was described by Taylor J in Barton v Armstrong [1969] 2 NSWR 451 at 455:
66.Mr Chain submits that the approach in Barton was applied in Wong Wai Hing where Sakhrani J found that one incident involving use of rude language and indirect threats by debt collectors constituted an assault (at §44) and another incident involving the use of foul language and a threat to go to the plaintiff’s house to search him out also constituted an assault (at §47). However, as Mr Fong points out, the first incident involved the debt collectors saying to one of the plaintiffs that some people would just disappear without any apparent reason, which was designed to instil fear in that the plaintiff might disappear, and the other incident involved the debt collectors saying to the other plaintiff that they would search him out of his home, and it was in these circumstances that the learned Judge found that such threats would have caused a reasonable apprehension of physical violence. 67.In his closing submissions, Mr Chain seems to depart from his submission that the court should apply an objective test when determining whether the act in question would cause a reasonable person to apprehend physical injury. He suggests that the court should apply a subjective test for reasonable apprehension, which requires the court to ask whether “a reasonable man with all the characteristics of the victim that the wrongdoer knew or ought to have known about”. This, says Mr Chain, requires the court to take into account “certain subjective characteristics” of the victim. In support of this submission, Mr Chain relies on White v South Australia [2010] SASC 95, 9 April 2010 at §364, per Anderson J, and Macpherson v Beath (1975) 12 SASR 174 at 177 where Bray CJ said “[i]f the defendant intentionally puts in fear of immediate violence an exceptionally timid person known to him to be so then the unreasonableness of the fear may not prevent conviction”. 68.I do not think that these cases support Mr Chain’s proposition. The context of the cases is very different, as the court was determining whether the defendant’s acts constituted the criminal offence of assault. As is clear from §363 of White, an essential element of the offence is that the defendant “intended to put the plaintiff in fear or should have foreseen that result”, which is absent from the tort of assault. The specific statement in Macpherson relies on by Mr Chain was said in that context. Other than these two criminal cases, Mr Chain is unable to cite any case in support of his proposition that the court should apply a subjective test for reasonable apprehension of physical injury and I reject his submission. Whether Mr Chan did the acts complained of and whether the acts amounted to assault 69.It is the plaintiffs’ case that during the First Encounter, without any provocation, Mr Chan shouted and yelled obscenities and using vile language towards Mrs Tam in an aggressive and hostile manner. Mrs Tam shouted back at him whereupon Mr Chan said he would swear and shout at Mrs Tam every time he sees her in future. The Further Encounters were incidents when Mr Chan shouted obscenities and yelled loudly at the plaintiffs using vile language whilst pointing and gesturing towards them in a progressively angry, hostile and aggressive manner. 70.I have dealt with what took place at the First Encounter between Mr Chan and Mr Kwok and the evidence of Mrs Tam on what she said to Sergeant Wong. At trial, Mr Chan alleges that it was only after he had heard Mrs Tam criticising him that he became embroiled in argument with Mrs Tam. This is not the defence put forward by Mr Chan and I do not accept his evidence. I accept Mrs Tam’s evidence which is corroborated by the evidence of Mr Kwok and the record made by the police. 71.As for the Further Encounters, I accept the evidence of Mrs Tam and Ms Tam that during each of the five occasions, Mr Chan without provocation shouted vile language loudly at the plaintiffs whilst gesturing aggressively and angrily at them and with increasing intensity. Their evidence is corroborated by the following evidence:
72.Both Mrs Tam and Ms Tam describe in their evidence how the conduct of Mr Chan in particular his aggressive gesture towards them, caused them to feel distress, and fear for their personal safety and physical injury. Having seen how Mr Chan behaved in the video, which was only one of the five occasions complained of by the plaintiffs, I consider that a reasonable person in the circumstances faced by the plaintiffs would be put in fear of physical violence or injury. 73.It is the plaintiffs’ case that their fear for personal safety was intensified by the spray paint incidents which took place right outside the premises of Mr Tam and Mrs Tam. I accept Ms Comon’s evidence that in the early hour of 12 March 2010, she saw from the window of her room that Mr Chan used a bottle of paint to spray some words on the wall, which is on the left side to her room. Thereafter, Mr Chan walked to the stairwell, which is on the right side to Ms Comon’s room, and Ms Comon heard the sound of someone spraying paint out from the bottle. Although Ms Comon did not see Mr Chan spraying the words outside the premises of Mrs Tam and Mr Tam at G/F of 34G, it is clear that those words could only have been sprayed by Mr Chan as the same black paint was used, all the words were in capital letters and in the same font as the words sprayed on the wall next to Ms Comon’s room, and all the words were painted during the same early hours (between 2:25 am and 4:35 am) on 12 March 2010. 74.As for the second spray paint incident which took place on 11 April 2010, although there was no eye witness to the incident, I find that the words outside the premises of Mr Tam and Mrs Tam were sprayed by Mr Chan in light of the following fact and matters:
75.Mrs Tam describes how shocked and scared she and her husband were when they saw the words sprayed outside her premises the next morning after the first spray incident. They became even more scared when they found the same words being sprayed outside her premises a month later. In my view, any reasonable person faced with the First Encounter, the Further Encounters and the spray paint incidents would feel very threatened and would be put in fear of physical violence or injury, which is sufficient to constitute the tort of assault. Whether the defendants committed the nuisance 76.There is no dispute between the parties on the principles governing the tort of nuisance, which are set out in Mr Chain’s opening submissions and may be summarised as follows:
77.It is Ms Tam’s evidence that from November 2010, which was shortly after she had given birth to her first baby and resting at home, loud thumping noises began to emanate from the defendants’ premises at 1/F of 34F at late hours in the night or early hours in the morning. The noises were as if someone deliberately striking or hitting the ceiling of 1/F of 34F. The noises occurred a few times a week, repeated a few times on the same day and lasted for several minutes on each occasion. In addition, from February 2011 onwards, there were excessively loud television and/or radio noises emanating from the defendants’ premises, again at late hours of the night or early hours in the morning. 78.When the noises were excessively loud, Ms Tam (by herself or through Mr Chai) made many complaints to the management office and the police:
79.The above records were prepared by third parties. With the exception of Mr Kwok, there is no suggestion that the makers of these records have any reason to mis‑state their records. As for Mr Kwok, for the reasons stated above, I do not accept that there is any proper basis to doubt his credibility either. 80.In addition, Madam Chan who resided at Ms Tam’s premise at 2/F of 34F from 28 November 2010 to end March 2011, describes in her evidence that the noises emanated from the defendants’ premise were very loud and the thumping on the ceiling of 1/F even caused the floor of 2/F to tremble and the television set inside her room to move. On a few occasions, the noises were so disturbing and loud that she and the newborn baby of Ms Tam were woken up by the noises. Due to the noises, after the first few nights, she together with the baby had to move to another room where the noises were not so direct and loud so that they would not be waken up so frequently. Despite the many complaints made by Ms Tam and Mr Chai, excessive noises continued to emanate from 1/F, whereupon Madam Chan said to Ms Tam she should considering suing the defendants so as to stop the noises. 81.Against the above evidence, the suggestion by the defendants that they did not produce the noises complained of by Ms Tam or that they had no knowledge of the complaints made by Ms Tam must be rejected. Although Mr Fong submits that the noises emanated from the defendants’ premise were reasonable or not excessive relying on the contents of the two letters from the police, I do not accept his submission as it is not the defendants’ case that they caused or allowed the noises to emanate from their premise. To the contrary, Mr Chan in his evidence makes clear that he does not accept the contents of the letters from the police to be accurate. 82.For the above reasons, I find that the defendants caused or allowed excessive noises to be emanated from their premise in the manner described by Ms Tam as corroborated by Madam Chan. Such noises have interfered with and disturbed Ms Tam’s quiet enjoyment of her premise and constituted a nuisance. Whether injunctions should be granted 83.I am satisfied that in the circumstances of this case, it is just and convenient to grant the injunctions sought by the plaintiffs in both actions as it is clear that without such injunctions, it is likely that the defendants in particular Mr Chan, will commit the acts complained of by the plaintiffs or other acts for the purpose of harassing, assaulting or causing disturbance or nuisance to them. 84.Although I have held that there is no tort of harassment at common law, this does not mean that the court cannot grant an injunction on terms which have the effect of restraining the defendant from harassing the plaintiffs as the jurisdiction to grant an injunction is not limited to restraining acts which is in itself tortious or unlawful. In Burris, the plaintiff claimed against the defendant for nuisance as a result of a number of uninvited visits made by the defendant to her premises, which caused the plaintiff to become very worried about the safety of her children and herself. The court below granted an interlocutory injunction restraining the defendant from “assaulting, molesting, harassing, threatening, pestering or otherwise interfering with the plaintiff”, her children or her friend or remaining within 250 yards of her home. The Court of Appeal rejected the defendant’s contention that the court has no jurisdiction to grant the “exclusion zone” order. The principle was explained by Bingham MR, at 1377A‑G, in this way:
85.As for the terms of the injunctions, I have some reservation on the width of the orders sought by the plaintiffs which, if granted, may have the effect of restricting the rights of the defendants beyond what is necessary in the circumstances. Mr Chain very sensibly does not insist on seeking the injunctions on the terms claimed in the SOC and, instead, seeks the injunctions on a CONCLUSION more restricted term. 86.In the Harassment Action, I grant an injunction that the defendant whether by himself, his servants or agents or any of them, or otherwise howsoever be restrained from assaulting, harassing, threatening, or pestering the 1st, 2nd and 3rd plaintiffs including:
87.In the Nuisance Action, I grant an injunction that the 1st and 2nd defendants be restrained, whether by themselves, their servants or agents or otherwise howsoever from:
88.As the plaintiffs have succeeded in both actions, I consider that it is appropriate to order the defendants to pay the costs of the actions. I make an order nisi that the defendants pay the costs of the Harassment Action and the Nuisance Action, including the costs of the defendants’ counterclaims, to the plaintiffs on a party and party basis, to be taxed if not agreed.
Mr Christopher Chain, instructed by Y S LAU & Partners, for the 1st to 3rd plaintiffs in HCA 627/2010 and the plaintiff in HCA 726/2011 Mr Raymond Fong, instructed by Chiu, Szeto & Cheng, for the defendant in HCA 627/2010 and the 1st and 2nd defendants in HCA 726/2011 | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCA 627/2010