SHEN XING v. LI JUN

HCA 1680/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1680 OF 2013

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J U D G M E N T

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A. Introduction

1.  This is the first hearing of the plaintiff’s summons dated 27 March 2014 whereby the plaintiff seeks summary judgment against the defendant for injunctive and monetary relief.

2.  The summons and the supporting evidence were served on the defendant’s solicitors on 27 March 2014, who acknowledged receipt thereof.  On 28 March 2014, the plaintiff’s solicitors also served the hearing bundle in relation to today’s hearing on Messrs Herman H M Hui & Co, the defendant’s solicitors.  However, Mr Herman Hui told a staff of the plaintiff’s solicitor that his firm had applied to cease to act for the defendant and his firm refused to acknowledge receipt of hearing bundle.  Therefore, the staff of the plaintiff’s solicitors left the covering letter and the hearing bundle at the reception of Messrs Herman H M Hui & Co.

3.  Also on 28 March 2014, Messrs Herman H M Hui & Co sent a letter to the plaintiff’s solicitors and attempted to return, amongst others, the Statement of Claim, the summons, the supporting affirmation and the hearing bundle (collectively “the Documents”).

4.  On 31 March 2014, the plaintiff’s solicitors sent a letter to Messrs Herman H M Hui & Co to return the Documents.  In the plaintiff’s solicitors’ letter dated 31 March 2014, the plaintiff’s solicitors drew the defendant’s solicitors’ attention to Order 67 rule 6(1) of the Rules of the High Court and paragraph 67/1/7 of the Hong Kong Civil Procedure 2014 and asserted that service of the Documents was good service. Again, Messrs Herman H M Hui & Co refused to acknowledge receipt of the Documents.  Therefore, a staff of the plaintiff’s solicitors left the letter and the Documents at the reception of the defendant’s solicitors. 

5.  On 3 April 2014, in view of the recent developments and out of an abundance of caution, the plaintiff’s solicitors also arranged for SMS messages to be sent to four telephone numbers to inform the defendant of the Documents and the service of the Documents at the offices of Messrs Herman H M Hui & Co.  The sending of the SMS messages to the first two numbers was successful but not in respect of the latter two numbers.

6.  On 7 April 2014, the plaintiff’s counsel arranged for a bundle containing a copy of the plaintiff’s skeleton argument, list of authorities and the authorities to be served on Messrs Herman H M Hui & Co. 

7.  Up till now, the plaintiff’s solicitors have not been served with any order under Order 67 rule 6(1) of the Rules of the High Court.

8.  At the start of this morning’s hearing, Mr Herman Hui, the defendant’s solicitors, confirmed that no order to cease to act has been obtained and that the defendant’s solicitors have no instructions from the defendant in this application.

9.  In these circumstances, I see no reason why the court should not proceed with the substantive application of the plaintiff’s Order 14 summons.

B.   The factual background

10.  The plaintiff first met the defendant in December 2012 at a dinner party and kept in contact thereafter.

11.  The defendant’s behaviour became erratic since June 2013.  His temperament fluctuated severely during telephone conversations with the plaintiff, often shouting at the plaintiff before apologizing, and sometimes breaking down to cry.  On several occasions, he even sent threatening messages to the plaintiff.

12.  Given the defendant’s behaviour and threats, the plaintiff distanced herself away from the defendant.  However, this only aggravated the situation.  During the period from June to August 2013, the defendant visited the plaintiff’s residences in Hong Kong (“the plaintiff’s Home”) and Beijing on more than 10 occasions, uninvited, banging on the front door of the residences and demanding to see the plaintiff.  On two occasions, the plaintiff met and spoke with the defendant through the gate of the plaintiff’s building estate, asking him to stop the harassment.

13.  The plaintiff’s pleas with the defendant proved to be fruitless.  On 1 July 2013, the plaintiff was in Beijing for less than 24 hours (leaving in the evening on 1 July) but the defendant managed to find out about this and, at approximately 3am on 2 July 2013, went to the plaintiff’s residence in Beijing and broke down the front door to see the plaintiff.  This was reported to the Mainland police.

14.  In the first half of July 2013, the defendant continued his pursuit and harassment of the plaintiff, attempting to contact her by telephone and trying to locate the plaintiff through her assistant.  The plaintiff had previously changed her mobile phone number to avoid the defendant, but he somehow managed to find out about her new number.

15.  Over the course of June and July 2013, the defendant repeatedly asked to meet up with the plaintiff, saying through SMS that they could “each go their separate ways” after they “cleared things up”.  With a view to putting an end to the harassment, the plaintiff agreed to meet with the defendant and they did so in the evening on 16 July at a coffee store in Kowloon (the “Meeting”).

16.  During the Meeting, the plaintiff expressly demanded the defendant to stop contacting her.  The defendant lost his temper and shouted at the plaintiff.  The defendant also violently pulled the plaintiff’s arm.  Feeling threatened, the plaintiff asked the defendant to leave, which he refused.  The plaintiff therefore left the coffee store, but then she was chased by the defendant all the way to the taxi stand.  As the plaintiff was about to enter a taxi, the defendant pleaded in tears with the plaintiff to speak to him.  Out of pity, the plaintiff decided to walk the defendant to his chauffeur, who was nearby.  The defendant, however, refused to enter his car and grabbed the plaintiff’s arm as she attempted to return to the taxi stand.  It was only after the intervention of two or three security guards that the plaintiff managed to leave in a taxi.  The plaintiff’s arm was bruised as a result of the defendant’s physical assault and had to miss work the next day.

17.  During the period from the Meeting (being 16 July 2013) to 22 August 2013, the defendant continued to telephone the plaintiff (which she never answered) and send her SMS messages (to which the plaintiff occasionally replied).

18.  On 21 August 2013, the plaintiff learnt from an SMS from the defendant that he would be visiting Hong Kong that day.  Fearing for her own safety, the plaintiff invited a friend (the “Friend”) to accompany her at Home.

19.  At approximately 6am on 22 August 2013, the defendant visited the plaintiff’s Home again and banged on the front door repeatedly for one hour.  Neither the plaintiff nor the Friend opened the door.

20.  After the banging subsided, the glass door at the balcony of the plaintiff’s Home suddenly became shattered.  It transpired that the defendant somehow managed to climb onto the balcony from the outside and broke in apparently with a baton.  Arguments ensued amongst the plaintiff, the defendant and the Friend, during which the defendant repeatedly raised his baton as if he was about to strike someone with it.  The defendant kicked the plaintiff in the back, causing her to tumble onto the floor.  He continued to kick her, especially her legs.  This led to multiple bruises, especially on the plaintiff’s knees (collectively “the Incident”).

21.  The police arrived at the plaintiff’s Home approximately five minutes after the defendant broke in.  Despite his resistance and shouting, the defendant was arrested by the police.  He was granted bail on 4 September 2013 on conditions.

22.  The writ in these proceedings was issued on 6 September 2013, being the same day when the plaintiff obtained an ex parte injunction from Anthony Chan J against the defendant restraining him, amongst other things, from harassing and contacting the plaintiff (the “Ex Parte Injunction”).

23.  On 13 September 2013, the defendant provided an undertaking to the court not to, amongst other things, harass and contact the plaintiff (the “Undertaking”).

24.  On 23 December 2013, the defendant admitted to a summary of facts (the “Summary of Facts”) and was bound over on the charges against him.

25.  Despite the Undertaking, the defendant continued to approach and contact the plaintiff by:-

(1) telephoning the plaintiff on at least 20 separate occasions over the period from 14 December 2013 to 25 January 2014; and

(2) sending SMS messages to the plaintiff on at least 9 separate occasions over the period from 24 December 2013 to 25 January 2014.

26.  The plaintiff therefore made an application for and was granted leave on 11 February 2014 to commence committal proceedings against the defendant, which were subsequently designated as HCMP 362/2014.

27.  Notwithstanding the order for leave granted by Chung J on 11 February 2014 and subsequently served on the defendant, the defendant continued to approach and contact the plaintiff by:-

(1) telephoning the plaintiff on at least 7 separate occasions over the period from 17 February 2014 to 27 February 2014; and

(2) sending SMS messages to the plaintiff on at least 2 separate occasions over the period from 28 February 2014 to 5 March 2014.

28.  On 12 March 2014, Chung J found that the defendant had been guilty of contempt of court for breaching the Undertaking and ordered that he be committed to prison for six months, the execution of imprisonment being suspended for two years (the “Contempt Order”).

29.  Within a few hours from the inter partes hearing at which Chung J made the Contempt Order, the defendant sent an SMS message to the plaintiff which contained a threatening message.

30.  The Statement of Claim was filed on 21 March 2014 and on 27 March 2014 the plaintiff issued the Order 14 summons.

C. The relevant legal principles

31.  The relevant legal principles on summary judgment are well-established and I will not repeat them.  I refer to the Hong Kong Civil Procedure 2014, vol 1 paras 14/4/1 to 14/4/9.  In this application, I have borne in mind those principles.

D. The plaintiff’s causes of action

32.  The plaintiff relies on 3 causes of action against the defendant:- (1) harassment; (2) trespass; and (3) private nuisance.  I will deal with these causes of action in turn.

D1. Harassment

33.  The principles of the tort of harassment were recently set out by Anthony Chan J in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197.  In essence:-

(1) “Harassment” means a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person (at para 62).

(2) The mental element required is recklessness as to whether the victim would suffer injury from the defendant’s conduct (at para 65).

(3) The plaintiff must have suffered damage as a result of the harassment.  Anxiety would suffice, though the defendant must take his victim as he finds him.  Financial loss is also recoverable (at paras 66-69).

34.  The plaintiff submitted, and I accept, that the defendant’s harassment of the plaintiff is evidenced by the following:-

(1) Repeated telephone calls and SMS messages to the plaintiff, even after the plaintiff had changed her mobile phone number;

(2) Instructing his chauffeur to wait for the plaintiff at her home and at her work place in Shenzhen;

(3) The defendant’s knowledge of the plaintiff’s whereabouts and personal details, including:-

 (a) The addresses of the plaintiff’s residences, both in Hong Kong and in Beijing;

 (b) The addresses of the plaintiff’s work places, both in Hong Kong and in Shenzhen;

 (c) The plaintiff’s telephone number, even after she had changed it to avoid him;

 (d) The plaintiff’s assistant’s telephone number; and

 (e) The passcode to the front entrance gate of the plaintiff’s Home;

(4) The defendant’s uninvited visits to the plaintiff’s residences in Hong Kong and in Beijing, including the Incident, during which the defendant often banged on the front door even when entry was refused and he was obviously uninvited and unwelcomed.

35.  I accept the plaintiff’s submission that the defendant’s aforesaid conduct caused the plaintiff to become fearful, anxious insomnious, and to lose a significant amount of hair and weight within two weeks, and also forced the plaintiff to cancel a substantial amount of work.

36.  The defendant’s harassment of the plaintiff continued even after the writ was issued, while the Undertaking was in force, and after the committal proceedings commenced.

37.  Mr Chen, counsel for the plaintiff, submitted, and I agree, that the various post-writ conduct should be taken into account, especially in the court’s consideration of the appropriate remedy to be awarded.  The plaintiff’s cause of action in the tort of harassment was already established on 6 September 2013 when the writ was issued.

38.  Accordingly, I am satisfied that the plaintiff has established the cause of action in harassment.

D2.   Trespass

39.  The defendant trespassed into the plaintiff’s property by illegally breaking into the plaintiff’s Home.  This was admitted by the defendant in the Summary of Facts.

40.  I am satisfied that the plaintiff has established the cause of action in trespass against the defendant.

D3.   Private nuisance

41.  Private nuisance is defined Winfield and Jolowicz on Tort (18^th ed, 2010) p 712 as “unlawful interference would a person’s use for enjoyment on land, or some right over, or in connection with it.  It has been said that the tort takes three forms: encroachment on a neighbour’s land, direct physical injury to the land, or interference with the enjoyment of land.” This passage was quoted by Anthony Chan J in the Lau Tat Wai case at para 48.

42.  I agree with the plaintiff’s submission that the defendant’s repeated banging on the door of the plaintiff’s Home on multiple occasions amounted to private nuisance.  They were unlawful interferences (by loud noises) with the plaintiff’s use or enjoyment of her own Home.

43.  I am satisfied that the plaintiff has established the cause of action in private nuisance against the defendant.

E.   Relief

44.  Given the defendant’s harassment of the plaintiff which continued notwithstanding the Undertaking, I am satisfied that injunctive relief is appropriate and necessary to protect the plaintiff.  The plaintiff seeks a permanent injunction against the defendant and that is set out in the summons.  The wording of the injunction is identical to that sought in the prayer for relief in the Statement of Claim, and is similarly to the injunction ordered by Anthony Chan J in the Lau Tat Wai case (see para 79).

45.  Apart from the injunctive relief, the plaintiff seeks damages against the defendant as follows:-

(1) Cost of reinstating glass door at plaintiff’s Home	HK$51,400
(2) Damages for harassment, including aggravated damages	HK$50,000
(3) Damages for trespass, including aggravated damages	HK$50,000
(4) Damages for nuisance, including aggravated damages	HK$50,000
(5) Exemplary damages	HK$100,000

46.  The cost of reinstating the glass door which the defendant broke during the Incident is evidenced by an invoice dated 16 March 2014 issued to the plaintiff.  The glass door was a fixture fixed to the plaintiff’s Home and therefore formed part of the land which is the subject matter of the plaintiff’s trespass.  Costs of reinstatement arising from physical damage to land are recoverable in an action for trespass.  See Clerk & Lindsell on Torts, (20^th ed), paras 19-63 to 19-66.

47.  The plaintiff also seeks damages, including aggravated damages, in respect of the defendant’s harassment, trespass and nuisance.  Aggravated damages are to compensate a victim for his suffering in his feelings, dignity and pride, for his mental discomfort and distress.  See Clerk & Lindsell on Torts, (20^th ed), para 19-69.

48.  The plaintiff relies on the following matters in support for her claim in aggravated damages:-

(1) As a result of the defendant’s misconduct, including his harassment, trespass and nuisance, the plaintiff’s mental and psychological well-being has been significantly affected, causing her to become insomnious and paranoid, and to lose her appetite, weight and hair.

(2) The plaintiff has also been diagnosed with Post‑Traumatic Stress Disorder, which severely disrupted her normal life, and necessitated psychological counselling.

(3) More than six months after the Incident, the plaintiff is still attending counselling sessions in Beijing.

49.  Mr Chen also referred to paras 73‑75 of the Lau Tat Wai case, where Anthony Chan J said:

“73. For aggravated damages, a sum of HK$600,000 is sought. I should make it clear that the sum represents the totality of the compensatory damages claimed …

74. It is not surprising that the cases which Mr Luk has managed to find in aid of assessment of damages concern rather different facts. In particular, none of the cases involved suffering over a period of six years…

75. In my view, the claim of HK$600,000 is very reasonable and I so award.”

50.  At the hearing, Mr Chen asked me to look at the matter in the round to award a total of $150,000 as aggravated damages for all of the plaintiff’s causes of action.

51.  In the circumstances of this case, having compared the amount sought by the plaintiff with the figure of $600,000 awarded by Anthony Chan J in the Lau Tat Wai case, it seems to me that an amount of $100,000 is a reasonable amount for aggravated damages against the defendant and I so award.

52.  The plaintiff also seeks exemplary damages against the defendant.  Exemplary damages are punitive in nature and are awarded to teach the culprit that tort does not pay, and to deter him and others from similar conduct: see Lau Tat Wai at para 72.  The plaintiff relies on the following five matters to support her claim in exemplary damages:-

(1) The defendant continued to harass the plaintiff and even broke into her Home and battered her despite the plaintiff’s repeated demands and warnings that he should stop contacting the plaintiff.

(2) Despite the Undertaking, the defendant continued to contact the plaintiff, in contempt of court as held by Chung J.

(3) The plaintiff also expressly stated in her evidence that she has suffered from Post-Traumatic Stress Disorder since the defendant’s illegal break‑in into her Home in August 2013.  The defendant is plainly aware of this, buy continued to approach and contact the plaintiff via telephone calls and SMS messages.

(4) The defendant even sent threatening SMS messages to the plaintiff.

(5) The defendant has displayed no remorse for his aforesaid conduct.

And the plaintiff asked for an award of $100,000 as exemplary damages against the defendant.

53.  Mr Chen referred me to the legal principles and submitted that exemplary damages may not be awarded except where the wrong is an oppressive, arbitrary or unconstitutional action by servants of the government, or where the wrongdoer’s conduct has been calculated to make a profit exceeding the compensation payable to the claimant.

54.  Mr Chen submitted that he relied on the latter category in this case for exemplary damages, namely where the wrongdoers conduct has been calculated to make a profit exceeding the compensation payable to the claimant.  Mr Chen also referred me to a case of the Court of Appeal in China Light & Power Company Limited v Ford [1996] 1 HKLR 57, and to various passages at pages 64I-65C as well as page 66A-B, where Liu JA said:

“How is it then possible to say that the defendant’s activities in America are caught or clearly caught by the second category of Lord Devlin in Rookes v Barnard (supra). It is true that Lord Devlin did not confine the second category to ‘moneymaking in the strict sense’. He extended it to cases in which a defendant was seeking ‘a gain at the expense of the plaintiff’ in respect to some object or property. In Broome v Cassell, similarly Lord Reid spoke in terms of ‘an advantage which would outweigh any compensatory damages likely to be obtained by his victim’. However, in Drane v Evangelou [1978] 1 WLR 455 at 462B (CA), Goff, LJ, as he then was, was of the view that ‘calculation by the defendant of actual money which he hoped to make out of the conduct was not necessary’. Further, in Archer v Brown [1985] QB 401 at p 423F, Peter Pain, J was even prepared to make an award of exemplary damages in an action for deceit, where the defendant had not made any profit at all, but no award was ordered in that case because the defendant had been duly prosecuted for fraud, convicted and imprisoned and thus actively punished.”

55.  Mr Chen submitted that I should construe this category of exemplary damages liberally to include a non‑monetary advantage obtained by the defendant.  He submitted that non‑monetary advantage obtained by the defendant in this case was the unauthorised access to the plaintiff’s property.

56.  Given that this is a summary judgment application, I should only grant relief in clear cases.  With respect to Mr Chen, on the available authorities before the court, I do not consider it clear that I can extend the category of exemplary damages to include the type of conduct submitted by Mr Chen.  Accordingly I am not prepared to grant any exemplary damages to the plaintiff against the defendant in this application.

57.  I make an order that the costs of this action, including the costs reserved, be to the plaintiff against the defendant.  I also make an order that the costs are to be taxed on the District Court scale if not agreed.