LEE KWAI YING v. PANG WING FAI AND OTHERS

DCCJ 1680/2022

[2022] HKDC 1043

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1680 OF 2022

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DECISION

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1.  This case is a dispute between co-owners of a building in Aberdeen, namely Aberdeen Harbour Mansion (“the Building”).  The plaintiff (“P”) is the owner of Flat 5J of the Building (“5J”).  The defendants (“Ds”) are the co-owners of the Flat 6J of the Building (“6J”).  6J is the unit above 5J.  P claims that Ds have made noise and have caused vibration affecting 5J, and the noise and vibration constitute nuisance infringing P’s enjoyment of 5J.

2.  By a summons dated 16 June 2022 (“the Summons”), P seeks an interlocutory injunction against Ds.  The material terms of the injunction sought by P are as follows[1]:

“l. [Ds] and each of them, whether acting by themselves, their servants or agents, or otherwise howsoever until after final judgment of this action or further Order to be made herein, be restrained from any unusual knocking, hammering and dragging of heavy objects that would:

(a) cause new or further deteriorate the ceiling cracks at the Plaintiff’s premise, for which the plaintiff needs to present pictures taken in different days that are within 10 days’ timeframe to show a remarkable deterioration of the cracks while for new cracks, defendants are allowed to send their building expert to the plaintiff’s premise to check at their own cost; or

(b) cause disturbing vibrations to the Plaintiff’s premise persistently for over 10 minutes which would also be witnessed by police, neighbour, any other independent third party or building management and that the witness would agree that the vibration is caused by abnormal heavy work that are not for household needs, be it day time or night time, unless the defendants provide prior notice to the building management or a proper explanation thereafter to the witness that such disturbing activities are for ordinary household needs and accepted by the witness; or

(c) cause vibrations to the Plaintiff’s premise which would be detected by a vibration sensor placed in Room 2 coupled with a video recording of a surveillance camera for alerts triggered at more than 2 different times when there was no one at Plaintiff’s premise. Each time’s duration is 30 minutes. If vibration persists for 1 hour, that would be counted as 2 different times. Room 2 locates at the corner side of the building as well as at the corner side of unit J and hence, vibration alert triggered by other neighbours is very unlikely unless there is the renovation work in progress below 10th floor. The plaintiff would also check with Unit 4J if they perform any heavy work at the times when the vibration sensor sends the alerts. The defendants are allowed to check the sensor’s authenticity thereafter under police’ witness; or

(d) persistently cause heavy object sensations to the Plaintiff’s premise for over 6 times in one hour which are also witnessed by any other third party who would provide affirmation to support the nuisance's authenticity; or

(e) cause disturbing sounds of over 80dB, which is equivalent of “Diesel freight train running at high speed at 25m” (see Annex A) as recorded in Plaintiff’s premise for over 2 times during the normal sleeping hours from 11:30pm till 8am for which the plaintiff needs to provide video(s) that show the running decibel meter as evidence; or

(f) cause disturbing sounds of over 60dB, which is equivalent of “Conversation in quiet living room” (see Annex A) as recorded in Plaintiff’s premise for over 6 times in 2 hours during the normal sleeping hours from 11:30pm till 8am for which the Plaintiff needs to show video(s) that show the running decibel meter a normal s evidence.[2]”

3.  Ds oppose the Summons.

4.  The parties have filed affirmations in relation to the Summons pursuant to the directions given by the court.  I am not prepared to set out all the details of the evidence filed by the parties.  Suffice for me to say that all the evidence filed, as well as the submissions made by the parties, have been duly considered.

5.  In these proceedings (including P’s application as per the Summons), P is acting in person, and D is represented by Ms Gigi Ho of counsel.

A.   THE PARTIES’ RESPECTIVE CASES

6.  These proceedings are at the very early stage.  P has filed her Re-Amended Statement of Claim and Ds have filed their Defence.

7.  P’s pleaded case is as follows:

(1)  She has been the owner of 5J since mid-May 2020.

(2)  Since 26 February 2022, there has been continuing vibration and noise emanating from 6J by way of unusual knocking, hammering and dragging of heavy objects every day and night, especially in midnight from 10:30 pm to 1:00 am, sometimes even till 2:00 am or after.  The heavy work was so disturbing that made 5J’s condition similar to a unit that was right below a manufacturing plant.

(3)  The main nuisance is the vibration.  In [5] of the Re-Amended Statement of Claim, P pleaded that she made the complaint to Ds by a letter dated 24 April 2022, copied to the Management Office of the Building (“the Building”).  In [6] of the Re-Amended Statement of Claim, P pleaded:

“In this letter, [P] specifically bolded and put a star in front of and after the word *vibrations* to make it clear that the main nuisance is vibrations.” (Emphasis in original)

(4)  P claims that the ceiling of 5J was cracked by the soundless vibrations and “the vibrations, be it soundless or with little sounds, substantially interference with [P]’s enjoyment of her premise.”[3]

(5)  P relies upon the following causes of action:

(a)  Nuisance

(b)  Breach of Clause 10 of the Deed of Mutual Covenant of the Building (“the DMC”)

(c)  Breach of s.4 of the Noise Control Ordinance (“NCO”)

(d)  Breach of s.25 of the Buildings Ordinance (“BO”)

(6)  The only relief claimed by P is monetary compensation.  See [19] of the Re-Amended Statement of Claim, which is as follows:

“19. [P]’s claim against [Ds] is for the sum of HK$295,700 (for nuisance up till this date) being the compensation for the loss of enjoyment of property, suffering and pain, ceiling repair, expert witness report and letter, and psychiatrist consultation and report. Claim amount will be increased if nuisance continues. ……”

8.  Ds deny liability.  Ds say that P is entitled to the relief as claimed or at all.  Ds put P to strict proof of the alleged nuisance emanating from 6J to 5J.  Ds say that their family have been residing in 6J for over 44 years since 1977 and have never received any complaints from any other persons about the alleged nuisance.  All along, 6J has been used as an ordinary household unit and there has never been any heavy work inside 6J.

B.   THE PRINCIPLES

9.  The principles concerning interlocutory injunctions are trite.  The court would first consider whether there is a serious question to be tried.  If yes, the court would proceed to consider whether the balance of convenience lies in favour of granting the interlocutory injunction.[4]

10.  A serious question to be tried is not a very steep hurdle.  So long as there is a serious question, it matters not whether the court thinks that the plaintiff’s chances of success at trial are 90% or 20%.  All that has to be seen is whether he has prospects of success which, in substance and reality, exist. Odds against success do not defeat him, unless those are so long that the plaintiff can have no expectation of success, but only a hope. If his prospects are so small that they lack substance and reality, then he fails, for he can point to no question to be tried which can be called “serious”, and no prospects of such success which can be called “real”.  If the opposing party seeks to show there is no serious question to be tried, the threshold is high, as it would be necessary to demonstrate that the claim should be struck out.[5]

11.  In considering the balance of convenience, the governing principle is that the court should first consider whether, if the plaintiff succeeds at the trial, he would be adequately compensated by damages for any loss caused by the refusal to grant an interlocutory injunction. If damages would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.[6]

12.  The terms of the injunction order must not be vague, uncertain or too oppressive to the defendant.  As an example, if the noises referred to in the injunction order can inevitably encapsulate all decibel levels of sounds at any time or the defendant and his family’s lives and their right of enjoyment of the house would be unduly infringed, the court cannot and will be make such an order.[7]

13.  With these principles in mind, I turn to analyse the issues in P’s application.

C.   DISCUSSION

C1. Any serious question to be tried?

14.  In analysing whether there is a serious question to be tried, I would consider the causes of action relied upon by P in turn.

C1.1. Nuisance

15.  P has not made it clear that she is relying upon public nuisance or private nuisance in her pleading.

16.  In order to succeed on a claim based upon public nuisance, a private individual must show that he or she has suffered a “particular, direct and substantial” injury above and beyond what is suffered by the rest of the public at large^[8]. In my view, no case based upon public nuisance has been pleaded in the Re-Amended Statement of Claim.

17.  There is no dispute that P is the registered owner of 5J.  According to a land search of 5J dated 21 June 2022, P has been the registered owner of 5J since 23 March 2020.  The subject matter complained by P is the alleged noise and alleged vibration emanated from 6J to 5J.  Viewed in context, the nuisance relied upon by P must be private nuisance.

18.  Regarding private nuisance, the principles have been succinctly summarized in Elias Neil David and Anor v Cheng Sui Chu and Other[9]:

(1)  Private nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of his ownership or occupation of land or other right used or enjoyed in connection with land.

(2)  In an organized society like Hong Kong, the law recognises that everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours.  Thus, ordinary domestic use of premises could not constitute a nuisance even though interference with the enjoyment of neighbouring premises is caused.

(3)  The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.  There is no absolute standard to be applied and it is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance.

(4)  In deciding whether an interference could amount to an actionable nuisance, the court has to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property.

(5)  No precise or universal formula is possible, but a useful test is: What is reasonable according to ordinary usages of mankind living in a particular society.  In the words of Oliver J in Stone v Bolton[10]:

“Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact.”

19.  The test, namely what is reasonable according to ordinary usages of mankind living in a particular society, was held to be applicable in the context of interference nuisance disputes between neighbours in Hong Kong.  In assessing the question of nuisance in the context of Hong Kong, the court should take into account the particular habits of Hong Kong people, in particular later bedtimes.[11]

20.  In deciding whether the nuisance is substantiated, the court shall not take into account the subjective sense of the complainant.[12]

21.  In determining whether the impugned activity is a reasonable use of the defendant’s land, locality and the character of the neighbourhood must be taken into account.  As said in Sturges v Bridgman[13], “what would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey”.

22.  According to P, the nuisance is caused by noise (“the noise nuisance”) and vibration (“the vibration nuisance”) emanated from 6J.  P says that that the vibration emitting from 6J has cracked her ceilings.  Although both the noise nuisance and the vibration nuisance are mentioned in P’s case, P is focusing on the vibration nuisance.  P in fact says that the vibration emanated from 6J is often soundless vibration.

(1)  In the Re-Amended Statement of Claim, P pleads:

“13. Up till this date, the soundless vibrations still continue. [P]’s ceiling cracks are deteriorating and there are new cracks at [P]’s ceilings. Also, the vibrations, be it soundless or with little sounds substantially interferes with [P]’s enjoyment of her premise for already 6 months up till this date.

14. Such nuisance would continue and persist. Hence, pursuant to Order 29, rule 1 of the Rules of the District Court, cap.336H, [P] seeks an interim injunction to enjoin [Ds] from doing the disturbing heavy works.” (Emphasis added)

(2) In her letter to the Incorporated Owners of the Building (“the IO”) and the Management Office dated 11 June 2022, P said:

“本人所投訴的, 主要是從6J 單位發出的震盪，其次是拉重物、墜重物落地的震動，這些震盪帶有噪音，大部份聲浪不大，很多時是很微，甚至沒有聲，故本人常說 “無聲嘅震感””

23.  In my view, putting aside the alleged vibration complained by P, P in fact is not saying that there has been unbearable noise originated from 6J. The noise nuisance alleged by P cannot stand alone.  It would stand or fall together with the vibration nuisance alleged by P in her case. 

24.  In considering whether there is a serious question to be tried on nuisance, the following matters have to be borne in mind.

25.  Firstly, the Building is an old building in Hong Kong.  It is now 50 years old.  There are around 170 units within the Building. It is built very close to a highway, bus stations and other buildings.  Given all these, the residents in the Building would certainly experience some noise coming from the environment outside the Building and from different household activities in different units inside the Building during daytime and sometimes at night.

26.  Secondly, P has made various complaints to the Management Office of the Building.  The Management Office has conducted investigations and did not find any noise from 6J, nor any evidence showing that there may be some activities in 6J which would cause the vibration alleged by P.

(1)  Since 26 February 2022, P has made a number of complaints to the Management Office regarding the alleged noise nuisance and vibration nuisance.  On 21 March 2022, P wrote to the Management Office about her suspicion that there was a midget plant inside 6J.  On 12 May 2022, the Management Office replied that inspection has been made to 6J.  It was found that 6J is just an ordinary domestic unit without any factory facilities.  Photographs of the interior view of Flat 6J were taken by the Management Office on 27 April 2022. Those photographs show what the Management Office saw during the inspection.

(2)  On 12 July 2022, upon receiving P’s complaint, the Management Office sent staff to 5J but failed to notice any noise in the 10-minute observation.

(3)  According to the minutes of the 19^th meeting of the IO, no source of noise was identified by the police, and no other complaint have ever been received from other residents of the Building.

(4)  The Management Office also confirmed that no complaint has been received from Flat 6I or Flat 5I regarding the alleged nuisance as of 11 August 2022.

27.  Thirdly, P has made complaints to the Police, but the Police has not found any noise from 6J.

(1)  According to the letter issued by the Police dated 31 May 2022, no noise emitting from 6J has been observed by the police officers during their frequent, immediate and prolonged visits outside 6J on 20 March 2022 (10 minutes), 28 March 2022 (25 minutes), 10 April 2022 (30 minutes) and 27 April 2022 (30 minutes), which were all made within 10-30 minutes after receiving P’s report.  No prosecution has ever been taken against Ds.

(2)  P is of the view that at least some of the matters stated in the Police’s letter dated 31 May 2022 are not true.  She sought clarification from the Police.  However, in the reply letter dated 24 June 2022, the police said that “…… Police already included relevant information based on our records in the reply letter to you dated 31st May 2022. Police do not have any additional information to provide.”

(3)  P alleges that Ds had seen police’s arrival through the building CCTV channel on TV and knew that the police officers were coming, and hence Ds would cease to make any noise before the police officers arriving outside 6J.  This is denied by Ds.  In my view, P’s allegation is a mere speculation.  I would not attach any weight to this speculation.

28.  Fourthly, P has made complaints to the Building Department (“BD”).  BD has conducted investigation.  The conclusion reached by BD does not support P’s case.

(1)  Since 21 March 2022, P has also complained to the BD about the alleged vibration.  As a result, the BD conducted site visits and complied two reports based on its inspection on 23 March 2022, 28 March 2022, 12 April 2022 and 21 April 2022.

(2)  In the two reports, the BD said that no abnormal or unusual noise or vibration emanating from 6J could be observed by the investigating officers, despite their visits outside 6J on those dates of inspection and inside 5J on 28 March 2022 and 21 April 2022. Further, the BD found that the cracks on the ceilings of 5J was non-structural and that there was no structural danger to 5J.

(3)  On 16 May 2022, the BD issued a letter to P and explained that the BD would not proceed with further investigation or action, as there was no structural damage caused by the cracks and noise was not within the jurisdiction of the BD.

29.  P blamed Ds for being evasive by refusing the BD’s entry to 6J. However, Ds have allowed the Management Office to enter 6J to conduct investigations and to take photos of the interior of 6J.

30.  The Management Office, the Police and the BD are independent third parties.  They all have conducted their own investigations as a result of P’s complaints.  The findings made by them do not lend any support to P’s case at all.

31.  The most relevant evidence adduced by P is a site investigation report dated 7 May 2022 (“Ma’s Report”) and a letter dated 29 June 2022 (“Ma’s Letter”) from a Mr Jacky Ma Wai-kwong (“Mr Ma”).  P relies upon these documents as expert evidence in support of her case that the cracks on 5J’s ceilings were caused by vibration emitted from 6J.  It would not be necessary for me to set out the details of Ma’s Report and Ma’s Letter in this decision. Suffice for me to say that even assuming that Mr Ma is having the necessary expertise to give the opinion as stated in his report and his letter (for avoidance of doubt, as to whether Mr Ma indeed has such expertise, I make no finding on this issue), I would not attach any weight to Ma’s Report and Ma’s Letter for the following reasons:

(1)  In Ma’s Report and Ma’s Letter, Mr Ma only stated his conclusion that the cracks on 5J’s ceiling were caused by the vibration emanated from 6J.  No reason has been given explaining why he could reach such a conclusion.  Mr Ma did not say that he had conducted any test, and Mr Ma also did not say that he had considered what scientific theory.  In the absence of any reason, no weight can be attached to Mr Ma’s opinion.

(2)  Further, Mr Ma has not visited 6J and has not done any test inside 6J. That being the case, his opinion that the cracks on 5J’s ceiling were caused by the vibration emitted from 6J cannot be regarded as reliable.

32.  P also relies upon a psychiatric report by Dr Li Derek Seung Yau (“Dr Li”) dated 28 May 2022.  In this report, Dr Li stated that P has adjustment disorder and anxiety and depressive symptoms.  Dr Li gave a conclusion that P’s mental disorder is precipitated and caused by noise disturbances created by her neighour.  Understandably, P’s mental condition may well be a matter within the purview of Dr Li’s expertise. However, as to whether there has been any noise disturbance created by P’s neighbour, this a factual matter, in respect of which Dr Li cannot give any factual evidence.

33.  As said in the above, P is focusing on the vibration nuisance, and the noise nuisance in fact would stand or fall together with the vibration nuisance.  The vibration alleged by P is some “soundless vibration”.  P suggests that D should be using a rubber hammer to do the hammering with a tablet press tool on the floor of 6J.  She exhibited photos of rubber hammers and the google result of “9 Tips of Hammer Quietly & Not Disturb Your Neighbors” and said that soundless vibration could be created by “punching a cushion”.  With respect, all these are mere speculations without support of any evidence.

34.  P is in fact saying that Ds have maliciously[14] created some “soundless vibration” to annoy P.  This is a serious allegation.  I do not see any believable evidence in support of this allegation.

35.  P has also adduced evidence from herself, her mother and her sisters, as well as the transcripts of some conversations between her and some people. Suffice for me to say that all these would not be sufficient to enable P to have prospects of success (which in substance and reality exist) in her claim based upon the “soundless vibration” as alleged by P in her case.

36.  Having considered the evidence before the court, I am of the view that P’s case on nuisance does not have any substance and P has no prospect of success in reality.  There is no serious question to be tried on nuisance.

C1.2. DMC, Clause 10

37.  Clause 10(c) of the DMC requires each co-owner of the Building:

“[n]ot to use his part of the said building for any illegal or immoral purpose nor do or permit anything therein so thereupon which may create unnecessary noise or may be a nuisance or annoyance to or any create damage or inconvenience to the other occupiers of the said building.” (Emphasis added).

38.  For the reasons set out in [15] to [36] above, I am of the view that P has not shown a serious question to be tried concerning the alleged breach of Clause 10 of the DMC by Ds.

C1.3. NCO, s 4

39.  NCO, s.4 provides:

“(1) Any person who between the hours of 11 p.m. and 7 a.m., or at any time on a general holiday in any domestic premises or public place makes or causes to be made any noise which is a source of annoyance to any person commits an offence.

(2) Any person being the owner, tenant, occupier or person in charge of any domestic premises who between the hours of 11 p.m. and 7 a.m., or at any time on a general holiday knowingly permits or suffers noise which is a source of annoyance to any person to emanate from those domestic premises commits an offence.

……” (Emphasis added)

40.  As defined by s.2 of the NCO, unless the context otherwise requires, “annoyance” in the NCO means “annoyance that would not be tolerated by a reasonable person”.

41.  Even assuming that breach of NCO s.4 can constitute a cause of action in a civil case (there be no determination on this issue), P cannot show a serious question to be tried by relying upon this section.

(1)  As said in the above, the focus in P’s case is the alleged “soundless vibration” emanated from 6J.  Obviously, “soundless vibration” cannot be noise causing annoyance.

(2)  Further, there is no evidence showing that there has been noise from 6J that would not be tolerated by a reasonable person between 11 pm and 7 am, or at any time on a general holiday.

C1.4. BO, s.25

42.  BO, s.25 provides:

“(1) One month’s notice in the specified form shall be given to the Building Authority of any intended material change in the use of a building by the person intending to carry out or authorizing the carrying out of such change.

……

(3) The use of a building shall be deemed to be materially changed—

(a) where the carrying out of building works for the erection of a building intended for such use would have contravened the provisions of this Ordinance; or

(b) where the Building Authority could have refused to give approval to plans of such building works under section 16(1)(g).”

43.  There is no evidence showing that Ds are not using 6J as a domestic unit.  P cannot rely upon s.25 of the BO to show a serious question to be tried.

C1.5. No serious question to be tried

44.  Notwithstanding that a serious question to be tried is not a very steep hurdle, for the reasons above, I conclude that P has failed to show a serious question to be tried.

C2. Damages being an adequate remedy to P

45.  If I were wrong in concluding that there is no serious question to be tried, I would still refuse to grant an injunction to P, for I am of the view that the balance of convenience lies in favour of refusing the injunction.

46.  As stated in [7(6)] above, P is only claiming for monetary compensation in these proceedings.  Assuming that P succeeds to the full extent in this case, what P would obtain is monetary compensation.  Ds are the owners of 6J. The land search concerning 6J dated 27 July 2022 shows that 6J is not subject to any encumbrance.  With all these in mind, I am of the view that P would be adequately compensated by damages for any loss caused by the refusal of the interlocutory injunction, and Ds would certainly have the financial ability to pay the monetary compensation to P in the event that P succeeds at the trial. 

47.  For this reason, P’s application for an interlocutory injunction should be refused.

C3. Terms of the injunction sought by P

48.  A further reason for refusing P’s application is that the terms of the injunction sought by P are vague and uncertain.  The injunction would restrain Ds from doing “any unusual knocking, hammering and dragging of heavy objects” in 6J.  So according to the terms of the draft injunction order, usual knocking, hammering and dragging of heavy objects would not be caught by the injunction.  The injunction would only prohibit unusual knocking, hammering and dragging of heavy objects.  However, what is usual and what is unusual is undefined.  The scope of prohibition is vague and uncertain.  With respect, an injunction with the terms proposed by P would not be workable.

C4. Refusing P’s application

49.  For the reasons set out in the above, I must refuse P’s application and dismiss the Summons.

D.         DISPOSITION

50.  I dismiss the Summons.

51.  Costs should follow the event.  I order that costs of the Summons be to Ds in any event, with a certificate for counsel, to be taxed if not agreed.