Chan Hon Hong and Others v. Li Man Fan
Read the full judgment text of DCCJ 690/2015 on BabelCite. This District Court judgment was delivered on 29 May 2015.
1. On 29 May 2015, two applications by way of inter-partes summonses for interlocutory injunctions by the plaintiffs in DCCJ 690 of 2015 (“ Action 690 ”) and the plaintiff in DCCJ 691 of 2015 (“ Action 691 ”) were heard together. At the conclusion of the hearing, I dismissed the summons in each action, and ordered costs against the plaintiffs in both actions, which were further gross-sum assessed. I indicated to the parties that the reasons would be handed down, which I now do.
Cited by 1 case · Cites 2 cases
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DCCJ 690/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 690 OF 2015 -------------------------
------------------------- DCCJ 691/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 691 OF 2015 -------------------------
------------------------------------ REASONS FOR DECISION ------------------------------------ 1.On 29 May 2015, two applications by way of inter-partes summonses for interlocutory injunctions by the plaintiffs in DCCJ 690 of 2015 (“Action 690”) and the plaintiff in DCCJ 691 of 2015 (“Action 691”) were heard together. At the conclusion of the hearing, I dismissed the summons in each action, and ordered costs against the plaintiffs in both actions, which were further gross-sum assessed. I indicated to the parties that the reasons would be handed down, which I now do. 2.Since there were substantial overlapping of issues and arguments in both actions, it would be more convenient to set out my reasons in one single decision as I now do. Introduction 3.In Action 690, there are four plaintiffs, the 1st plaintiff is Chan Hon Hong (“1st plaintiff”), the 2nd plaintiff is Chan Kwai Ping as the manager of Chan Yam Chau Tso (“2nd plaintiff”), the 3rd plaintiffs are Chan Wan Choi and Chan Wan Ping (“3rd plaintiffs”) and the 4th plaintiff is Chan Yung Fat (“4th plaintiff”). 4.In Action 691, the plaintiff is Yiu Yee Man. 5.The defendants in both actions were, before the amendment that I refer to below, unnamed defendants who were described respectively as the trespassers (in Action 690) or trespasser (in Action 691) in wrongful occupation of the relevant land lots of D.D. 78. 6.Thus, both actions are claims based on trespass. The relief being claimed in both actions is the same, which includes, among others, vacant possession, injunction to remove some alleged illegal and unauthorized structures and mesne profits. 7.At the hearing, before the substantive arguments, the plaintiffs’ solicitor in both actions, Mr Jim, made an application for amendment by applying for an order to substitute the name of the defendant in each action with another person called Mr Li Man Fan, who was represented by counsel, Mr Ng. This amendment application was mainly the result of this court’s drawing to the parties’ attention before the hearing, the English Court of Appeal decision of Bloomsbury Publishing Group Ltd & Another v News Group Newspapers Ltd & Others [2003] 1 WLR 163 (which discussed the pitfalls of granting an injunction against unnamed defendants). 8.The application was unopposed. I thus granted an order by allowing an amendment to be made to the name of the defendant in each action by substituting Mr Li as the newly substituted defendant, and further directed that all references to the name of the defendant in the documents already filed in each action be treated as references to the newly-substituted defendant. It was further directed that all documents already filed, including the acknowledgement of service filed by Mr Li’s solicitors in each action, continued to stand. 9.In the discussion below, I will firstly deal with Action 690 before next discussing Action 691. ACTION 690 Background facts 10.The facts are not in dispute. At all material times:
11.According to the statement of claim (“SOC”) and the plaintiffs’ answers (“Answers”) to the further and better particulars requested by the defendant, the plaintiffs aver that the defendant has been in wrongful trespass of the Properties upon the alleged expiry of the tenancy agreements purported to be the tenancy agreements in respect of the 1st Property, 2nd Property, 3rd Property and 4th Property. 12.It is further averred in the SOC that despite Chinese notices dated 22 October 2014 having been posted up on the 1st, 2nd ,3rd and the 4thProperties demanding the defendant “to deliver up vacant possession” of the Properties and to “remove/demolish all structures, things and chattels (including iron wire fences) from” the Properties, the defendant has failed or refused to remove or demolish such “illegal and authorized structures, things or to deliver vacant possession” of the respective Properties to the respective plaintiffs. 13.In the SOC, the plaintiffs further averred that the Properties were agricultural lands and “no structures or buildings may be erected or built without the approval of the Building Authority and District Lands Office”. It is further averred that the said “structures, things and chattels (including iron wire fences)” were built or erected without the approval of the Building Authority and/or the District Lands Office (“DLO”), the presence of the said structures may lead to “penalty or fines”. The Injunction sought 14.The injunction sought is in the following terms:
15.Mr Jim confirmed that the 2nd plaintiff no longer required an injunction order in relation to Lot Nos.1557 and 1566 of the 2nd Property. Thus, the 2nd Property is now only concerned with Lot No.1563. 16.The plaintiffs have also through Mr Jim provided undertakings as to damages for the grant of injunction. 17.In support of the application, the plaintiffs filed a joint affirmation that substantially affirms the contents of the SOC. 18.The defendant in his affirmation in opposition to the application raises three grounds of opposition:
19.Insofar as the Encroachment Issue is concerned, the defendant asserts that he had been the exclusive possessor of the Properties without consent or licence of the paper owners of the Properties for an uninterrupted period of 30 years. He thus asserts that the titles of the owners of the Properties have been extinguished by virtue of the Limitation Ordinance. 20.As for the tenancy agreements referred to in the pleadings, the defendant only deposed to one tenancy agreement, which is in relation to the alleged leasing of the 3rd Property to him. This is because, according to the defendant, the said tenancy agreement was the only tenancy agreement the plaintiffs’ solicitors had provided to his solicitors. It is the defendant’s assertion that the said tenancy agreement has been procured by duress and is not a genuine and valid lease. 21.Concerning the second ground, the Illegal Structure Issue, the defendant contends that the plaintiffs have not provided any evidence of illegality of any structure on the Properties. The only structures that the defendant admitted having erected on the Properties are two: one small hut (“Hut”) on Lot 1566, one of the land lots of the 2nd Property, for storing vegetables and farming tools, and fences (“Fences”) of around 4 feet in height along the boundaries of the Properties. 22.The defendant further asserted that he was not sure if the Hut would require the approval of the relevant government authority. However, he has been advised by a surveyor that a temporary licence or a waiver would normally be granted by the DLO for the erection of a canopy and storage facilities on or near a farm. 23.In relation to the Prejudice Issue, the defendant asserts that the plaintiffs have not been in occupation of the Properties. Thus, any structures, be they legal or otherwise, would not interfere with their enjoyment of the Properties. On the other hand, were the injunction granted in ordering the defendant to remove illegal structures to include the Fences, it would severely disrupt his farming activities. Applicable principles 24.According to the established principles for the grant of interlocutory injunctions, the applicant for an injunction needs to demonstrate that there is a serious question to be tried; damages would not be an adequate remedy; and further that the balance of convenience lies in favour of granting the injunction (See a summary of the principles in Hong Kong Civil Procedure 2015, Vol. 1 (“HKCP”), §29/1/9). 25.In the case of an interlocutory mandatory injunction, as the injunction sought in the present case is, generally a court will have to feel a high degree of assurance that at the trial it will be shown that the injunction is rightly granted before an interlocutory mandatory injunction will be given. As an exception to this general rule, where it is shown that the case is one in which the withholding of an interlocutory mandatory injunction “would in fact carry a greater risk of injustice than granting it even though the court does not feel the high degree of assurance, it would be right to grant an interlocutory mandatory injunction.” See: Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I[2010] 2 HKLRD 1041 at 1038§12(g). 26.How do these principles are to be applied in this application? First, I need to be satisfied that there is a high degree of assurance that the plaintiffs are able to demonstrate that there is a serious question to be tried so that the injunction should be granted. Any serious question to be tried 27.As this is an action for trespass, the Encroachment Issue raised by the defendant should form the essential core of the underlying dispute. 28.The evidence concerning the Encroachment Issue is presently incomplete. There should be altogether four alleged tenancy agreements in relation to the 1st, 2nd, 3rd and the 4th Properties. However, when the defendant filed the opposing affirmation, the plaintiffs have only disclosed one alleged tenancy agreement concerning the 3rd Property. Thus, the defendant has not had the opportunity to depose to the other alleged tenancy agreements in this application. 29.Irrespective of the absence of the evidence yet to be filed from the defendant concerning the other tenancy agreements, further investigation into the validity of these tenancy agreements is certainly needed as they ex facie look problematic. For example, the defendant is not named as the tenant in the alleged tenancy agreement purportedly to be a tenancy agreement in relation to the 1st Property. 30.In such instance, I consider it inappropriate for the present purposes to try to resolve conflicts of evidence on affirmation as to facts on which the claims in relation to the Encroachment Issue of either party may ultimately depend or decide on difficult questions of law which call for detailed argument as well as consideration of live evidence. These are matters to be dealt with at the trial: HKCP §29/1/0 at p.653. 31.Since the subject matter of the injunction sought relates to the alleged illegal or unauthorized structures, the primary focus should be directed to the consideration of the plaintiffs’ merits in relation to their claims concerning the alleged illegal structures on the Properties. 32.Pausing here, I should also mention a preliminary procedural matter concerning the 3rd plaintiffs’ capacity to sue. 33.According to the plaintiffs’ pleaded case, the 3rd plaintiffs are bringing the claim as authorized agents of the Yiu Brothers, the registered owners of the 3rd Property. Generally, a claim should be brought in the name of a principal, not in the name of the agent. Mr Jim is unable to refer to me any authority that supports the entitlement of the 3rd plaintiffs to bring this action in their own names. I do not therefore consider that the 3rd plaintiffs are properly constituted, and strictly speaking their names are liable to be struck out from the writ. Mr Ng, albeit having disputed the 3rd plaintiffs’ entitlement to sue, was however content not to rely on this procedural irregularity in opposing the application. 34.That being the position of the parties, I would simply leave this procedural matter to the parties in the future conduct of the proceedings. 35.As stated above, the subject matter of the injunction concerns the plaintiffs’ allegation of the illegal or unauthorized structures on the Properties. The evidence in this regard however appears to be scanty. In the supporting affirmation, all that the plaintiffs are alleging is that the Properties are agricultural lands and owners/occupiers are prohibited by the DLO from erecting any buildings or structures without their approval. The evidence does not allude to any factual matters such as the physical appearances of the structures the plaintiffs have allegedly found on the Properties, the location of the alleged structures in relation to the Properties etc; let alone condescending to the most crucial allegation of illegality or the lack of authorization from DLO or any other government body. 36.The allegations of the alleged illegal structures have only been made in pleadings. Thus, they have been referred to as “illegal and unauthorized structure, chattels and things (including iron wire fences)” in the SOC and “wooden poles and fence like objects connecting the iron wire fences” in the Answers. 37.In spite of the seemingly wordy descriptions of the alleged illegal and unauthorized structures in the pleadings, the structures seem to only be of two types: (a) chattels, (b) iron wire fences together with their connecting poles. 38.But then, what kind of chattels do the plaintiffs refer to? Are they referring to the tools the defendant stored inside the Hut on Lot No. 1566, which piece of land lot is no longer subject to the proposed injunction, or something else? 39.What about the alleged iron wire fences together with their connecting poles? Are the plaintiffs referring to the Fences the defendant had admittedly erected or some other fences? 40.Last but not the least, what structures are the plaintiffs referring to as being “illegal and unauthorized”? Are there any structures on the Properties the DLO and any other relevant government body have determined to be illegal or built without their approval? 41.These questions, in my view, clearly show that it is not correct for Mr Jim to submit in his skeleton that “there is no issue of legality of such structures, chattels and things”. Plainly, the issue of legality of any alleged structures is one of the fundamental issues in this application. 42.A mandatory injunction requires the term of the injunction to be framed with particularity and precision so that the person subject to the injunction will know exactly “what he must do and what steps he must take”: Tech Focus Ltd v Austria Property Management Ltd & Anor [2004] 1 HKC 343 at 345B-C. Were an injunction granted in ordering the defendant to remove the “illegal and unauthorized structure, chattels and things (including iron wire fences)” and the “wooden poles and fence like objects connecting the iron wire fences”, it would be oppressive to the defendant as it would be unclear as to whether the Hut and the Fences, the only structures that he built, were subject to the injunction. 43.In addition to the lack of particularity as discussed above, I am also far from being impressed by the Plaintiffs’ evidence. It does not appear to have been carefully prepared, and lacks exactitude, which is contrary to the standard required by a mandatory injunction. Oddly, as Mr Ng has remarked, in the plaintiffs’ supporting affirmation, the plaintiffs have only alluded to the alleged illegal structures in relation to the 1st,2nd and the 3rd Properties, but not the 4th plaintiff’s 4th Property (§8 of the Plaintiffs’ supporting affirmation). Also, in the SOC, the 4th plaintiff has also been omitted from the prayer for the various reliefs claimed in the SOC. Bearing in mind that the 4th Property has been included in the term of the injunction, I consider that such omission, which Mr Jim has not sought to address or explain at the hearing, only further weakens the plaintiffs’ allegation in relation to the Illegal Structure Issue. 44.In conclusion, I do not feel that, on the evidence placed before me, the plaintiffs have satisfied the criterion of “high degree of assurance” as discussed in Music Advance Ltd. I consider that the plaintiffs may have just about established a serious question to be tried in relation to the Illegal Structure Issue only because of the Fences which the defendant admitted having erected on the Properties, but nothing else. Balance of convenience 45.Even if the plaintiffs were able to satisfy me that there are serious question to be tried, on the evidence before me concerning the Prejudice Issue, I find that the plaintiffs have not satisfied me that the balance of convenience tilts in their favour and that justice requires a mandatory interlocutory injunction to be granted. The reasons are as follows. 46.On the evidence, I am not satisfied that the plaintiffs have adduced sufficient evidence in showing that they would have likely suffered irreparable harm should the injunction be refused. It cannot be disputed that the plaintiffs are not in occupation or possession of the Properties. Thus, I find their assertion of loss of use and enjoyment of the Properties unmeritorious. 47.Additionally, in respect of the alleged exposure of the plaintiffs to the risk of the government’s enforcement action, the plaintiffs have adduced no evidence at all. An allegation that government action may result in the plaintiffs’ permanent loss of the use of the Properties is a serious one, and it must be supported by cogent evidence, which is not found here. 48.Conversely, I find that an injustice may be caused to the defendant should the injunction be granted before the substantive determination of the underlying dispute in relation to the Encroachment Issue. Were the defendant ordered to remove the Fences before trial, the Properties will become unprotected and thus may be at risk to intruders as the defendant has asserted. I’m inclined to accept the defendant’s asserted risk that his farming business may be substantially ruined. 49.In the end, the plaintiffs’ alleged violation of their rights by not granting the injunction, when weighed against the wide and unparticularized term of the proposed injunction order , in particularly when the evidence on the Encroachment Issue is murky and remains untested, leads me to conclude that the balance should be tilted against granting an interlocutory injunction. In my judgment, I consider that it is just to preserve the status quo before trial. ACTION 691 Background Facts 50.It is not in dispute that the plaintiff was and is at all material times the registered owner of a land lot namely “SECTION B OF LOT NO.1240 IN DEMARCATION DISTRICT NO.78 Together with the buildings, erections and messauges thereon” (“the Property”). 51.The material difference between this action and Action 690 is that there is no averment of the Property having been rented out to the defendant. According to the statement of claim, the plaintiff avers that the defendant has at material times been in wrongful possession of the Property, and that he has “built or caused to be built an illegal and unauthorized structure within the Property” without the authority of the plaintiff (see §§2 & 3 of the statement of claim). 52.The plaintiff further avers in the statement of claim that the plaintiff demanded the defendant to “quit and move out of the Property and remove/demolish the said illegal and unauthorized structure” by a notice of 25 October 2014 issued by her solicitors. 53.The defendant’s proposed defence, similar to that in Action 690, is also based on his asserted adverse possession. The Injunction sought 54.The injunction sought is almost identical to that sought in Action 690 save that the alleged illegal structure does not include “chattels and things (including iron wire fences)” as in Action 690, and is described in the following terms:
55.The applicable principles discussed in Action 690 above are equally applicable in this action, and no repetition is needed. Any serious issue to be tried 56.In her affirmation dated 25 October 2014 in support of the injunction application, the plaintiff avers that in mid-2014 she had allegedly discovered that the defendant had occupied the Property and had erected an illegal structure on it without the approval of the Building Authority or DLO, and without any consent or authority of the plaintiff (see §3 of the supporting affirmation). 57.Similar to Action 690, the plaintiff’s evidence also fails to give any particulars or details as to the type of structure it is alleged to have been built on the Property as well as the alleged illegality. 58.In the defendant’s affirmation in opposition to the injunction application, the defendant also raises the same issues that are set out above in Action 690, viz, the Encroachment Issue, the Illegal Structure Issue and the Prejudice Issue. 59.For the same reasons stated in Action 690, it is not appropriate, for the purposes of this injunction application, to examine the relative strength of each party’s case in relation to the Encroachment Issue in spite of the fact that the defendant’s alleged wrongful occupation, being different to that of Action 690, did not allegedly originate from any tenancy agreement. I should however mention that the plaintiff did not file any evidence in reply to refute the defendant’s asserted case of adverse possession. Thus, it would appear that the defendant’s assertion of adverse possession has not been challenged at this stage. 60.As for the Illegal Structure Issue, the defendant states that he had also built a structure (“Enclosure”) enclosed with a canopy for storage on the Property. He started to take steps to deal with the Enclosure when his solicitors showed him a letter dated 27 February 2015 (“February 2015 Letter”) from the DLO addressed to the plaintiff. In it, the DLO stated that they discovered a structure that had been built without their approval on Lot No.1240 of D.D. 78 and demanded its removal within 28 days, otherwise they might exercise their reserved right to take appropriate action including an enforcement action of re-entry. 61.As a result, the defendant instructed his solicitors to write on 2 March 2015 to apply for a waiver or temporary licence in respect of the Enclosure. 62.In reply by letter on 16 April 2015, DLO reverted that the defendant’s application was receiving attention. 63.Mr Jim on behalf of the plaintiff adopted the same submissions that he made in respect of Action 690, and submitted that the evidence in relation of the illegal structure and the risk of enforcement is clear in this case because of the February 2015 Letter in which the DLO had threatened enforcement action. 64.In additional to the reliance on the same arguments on the lack of particularity that he made in Action 690, Mr Ng further contends that this application should be dismissed on the ground of the plaintiff’s undue delay in making the application. It was contended that between the date of the plaintiff’s supporting affirmation (25 October 2014) and the date of the plaintiff’s application for this interlocutory injunction (13 February 2015), there has been a delay of about 4 months. Yet, the plaintiff has not filed any explanation for the delay. He contended that this ground alone should constitute a complete bar to a grant of the injunction, citing King Fung Vacuum Ltd & Anor v Toto Toys Ltd & Anor [2006] 2 HKLRD 785 and HKCP §29/1/31 atp.660. 65.There can be no dispute that an application for an interlocutory injunction must be made in a timely fashion without delay. Failure to make a timely application may be taken into account by the court in inferring that a plaintiff would not suffer irreparable harm if an injunction were not granted: see HKCP §29/1/31 at p.660. 66.The importance of promptness requires an application to be made within “a period of six weeks or so of unexplained delay and three months with an explanation.” per Rogers V.P in King Fung Vacuum Ltd & Anor [2006] 2 HKLRD 785 at 792I to 793C. 67.On the evidence placed before me, the defendant has in fact discovered “an illegal structure” on the Property in mid-2014. Despite a demand notice for removal having been sent by her solicitors and the supporting affirmation having been executed both on the same day, 25 October 2014, the defendant did not explain why this application was only made on 13 February 2015. I am thus entitled to infer that the plaintiff would suffer no irreparable harm by refusing the grant of an injunction at the interlocutory stage. 68.Indeed, the plaintiff, as I have found, has failed to satisfy me that there is any real risk of prosecution by the government authority as she has asserted in her supporting affirmation. The plaintiff has only deposed to having discovered “an illegal structure” without specifying what that structure was. Irrespective of the admitted structure, the Enclosure, it is not correct in my view, given the unsatisfactory state of the plaintiff’s evidence, to assume that it is an illegal structure the plaintiff is alluding to. 69.Insofar as the February 2015 Letter is concerned, the contents are far from clear. First, the address stated in that letter is not the same address as the Property, which is “Section B of Lot No. 1240 of D.D. 78” (emphasis added). Rather, the address stated is Lot No. 1240 of D.D. 78, which appears to be referring to an entire land lot of Lot No. 1240 of D.D. 70.Thus, the exact location of the alleged unauthorized structure is unknown. Further, the February 2015 Letter also does not specify what kind of structure it is said has been found to have been built without the approval of the DLO. 71.Similar to the lack of the particularity in Action 690, the description of “illegal and unauthorized structure” here is also equally unspecified and unparticularized. It is therefore uncertain as to whether the “illegal and unauthorized structure” the plaintiff refers to is a structure built without the plaintiff’s consent as pleaded in the SOC; or whether it is a structure that the DOL has determined to be illegal; or whether it is a structure the DLO referred to in the February 2015 Letter; or whether it is the Enclosure the defendant has admitted having erected. An injunction granted in such wide terms, in my view, would be difficult to enforce against the defendant. 72.Thus, having taken into account of all the foregoing matters, I conclude that the plaintiff here also fails to satisfy me that this is a case where the withholding of an interlocutory mandatory injunction “would in fact carry a greater risk of injustice than granting it.” I do not feel that the merits of the plaintiffs’ claim, on the evidence, carry a high degree of assurance that at trial it will be shown that an interlocutory mandatory injunction was rightly granted. Balance of convenience 73.In addition to the discussions concerning the Prejudice Issue in Action 690 above, which would also be applied to this action, there is one further matter that needs to be particularly discussed in this action, which is the February 2015 Letter that Mr Jim has heavily relied on. It was submitted that the evidence concerning the alleged illegal structure is strong. 74.I disagree. For the reasons I discussed in §§69 to 70 above, the February 2015 Letter does not assist the plaintiff. 75.In the event, although it has been stated in the February 2015 Letter that the DLO had demanded for the removal of the unauthorized structure within 28 days, no enforcement action seems to have been taken so far after a lapse of 4 months. Not only is there little sign of any enforcement action being undertaken or at the risk of being commenced, the reply by DLO to the defendant’s application for waiver in relation to the Enclosure suggests that the defendant’s application has not been rejected. The outcome of the application is thus still at large. 76.In my view, it would cause injustice to the defendant to order the removal of the Enclosure (the only structure the evidence has disclosed) when the application for waiver is under consideration and in particularly bearing in mind that the term of the injunction sought is imprecise. 77.For the reasons above, I’m also inclined to the same view as in Action 690 that justice will best be served by preserving the status quo.
DCCJ 690/2015 Mr Jerry Jim, of Jim & Co, for the 1st to 4th plaintiffs Mr Ernest Ng, instructed by Wong & Co, for the defendant DCCJ 691/2015 Mr Jerry Jim, of Jim & Co, for the plaintiff Mr Ernest Ng, instructed by Wong & Co, for the defendant | ||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under DCCJ 690/2015