The Incorporated Owners of Fanling Centre v. Wong Yu Ting Terence and Another

HCMP 1979/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1979 OF 2014

(ON AN INTENDED APPEAL FROM LDBM 28/2013)

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JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.This is the respondents’ application for leave to appeal from the judgment and order of Deputy Judge Kot dated 9 May 2014.

2.We do not accept that the deputy judge placed undue weight on the subjective perception of Madam Yu on the effect of the antennas in question on her and her family.  The deputy judge clearly adopted an objective test.  She examined the evidence and reached the conclusion that the antennas constituted a nuisance or annoyance to Madam Yu’s family in breach of the DMC.  No error of law was involved and, in any event, we take the view that her finding was correct.

3.There is no merit in the proposed challenge.

4.As regards the complaint against the wording of the injunction, the deputy judge has already explained in her later decision dated 23 July 2014, paragraphs 17 and 18, that the injunction is only meant to prohibit the installation of any new antenna in breach of the DMC.  There is no need to appeal.

5.In our view, any ambiguity relating to the wording of the injunction should be sorted out between the parties, and if necessary before the Tribunal by way of further direction.  In the exercise of our discretion, we refuse to grant leave to appeal on this ground.

6.The application for leave to appeal is therefore dismissed with costs, summarily assessed at $39,000, to the Incorporated Owners.

Mr Paul HM Leung, instructed by Chan & Tsu, for the applicant

Mr Charles TC Wong and Mr Peter Yu, instructed by Alan Ho & Co, for respondents