CHAN CHUN HO AND OTHERS v. LUNG KING HONG LTD

DCCJ 2969/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2969 OF 2007

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DECISION

1.  This is the Plaintiff’s application for the continuation of an ex parte injunction granted by HH Judge Ng on 7 July 2007, and for other interlocutory injunctive relief, made by summons issued on 10 July 2007 ("Summons").

Background

2.  The Plaintiffs and the Defendant both claim interest in and title to a piece of land in the New Territories particularised in the Statement of Claim (“Disputed Land”).  The 1st Plaintiffs in this action are the registered owners of a piece of land known as Section A of Lot  No. 75, Section A of Lot No. 78, The Remaining Portion of Lot No. 78 and Lot No. 79 in Demarcation District No. 83 ("Adjacent Land"), which is adjacent to the Disputed Land.  The Defendant is the registered owner of those pieces of land registered as the Remaining Portion of Lot No. 75, Lot No. 76 and the Remaining Portion of Lot.No. 77 in Demarcation District No. 83, of which the Disputed Land forms part.  The 2^nd Plaintiff is a tenant of the 1^st Plaintiff, and occupies a part of the Disputed Land.

3.  There are separate legal proceedings in the District Court between the 1st Plaintiffs and the Defendant, in Action Number 3039 of 2005 (“DCCJ 3039”), in which the Defendant claims (as plaintiff) against the 1st Plaintiffs and the 2nd Plaintiff (as defendants) for possession of the Disputed Land.  By way of defence, the defendants in DCCJ  3039 claim that the title of the plaintiff in the said action to the Disputed Land had been extinguished by virtue of their adverse possession of the Disputed Land for more than 20 years.  Initially, summary judgment was entered in DCCJ  3039 in favor of the Defendant (as plaintiff in DCCJ 3039) on the basis of the decision of the Court of Appeal in the case of Chan Tin Shi v. Li Ting Sung [2005] 1 HKC 1, but execution on the judgment was stayed pending the outcome of the appeal to be determined by the Court of Final Appeal in Chan Tin Shi.  When the Court of Final Appeal reversed the decision of the Court of Appeal in Chan Tin Shi, the parties initially agreed to set aside the summary judgment obtained, but negotiations on the terms apparently broke down and the matter was not fully resolved. 

The acts complained of

4.  Matters took a drastic turn in May 2007, when unidentified parties, claiming to be representatives of the Defendant in these proceedings, visited the 2nd Plaintiff as well as Wah Fu Marble Company Ltd. (“ Wah Fu”), which is another tenant of the 1^st Plaintiffs occupying a part of the Disputed Land, and demanded rent from the 2nd Plaintiff and from Wah Fu in respect of their occupation and possession of the Disputed Land.  According to the evidence of the Plaintiffs filed in support of the ex parte application for injunction, the 2nd Plaintiff and Wah Fu were informed that if they refused to pay rent for their last few years of occupation and refused to sign tenancy agreements with the Defendant, these representatives would take action to fence off the Disputed Land.  Red marks were painted on the Disputed Land for erecting the fence.  Reports were made to the police, security guards were called in, and meetings were held between the Plaintiffs and the Defendant, but matters could not be resolved.

5.  On 5 July 2007, representatives of the Defendant erected iron poles on the Defendant’s own land but immediately outside the main gate of the Disputed Land, which main gate was (according to the Plaintiffs) the only entrance to the 2^nd Plaintiff’s premises.  On 6 July 2007, the 2^nd Plaintiff removed two of the iron poles erected by the Defendant for their vehicles to pass through, and the Defendant then blocked the main gate by a lorry.  On 7 July 2007,the Defendant erected again the two iron poles which were removed by the 2^nd Plaintiff on 6 July 200 and erected metal sheets instead.  On the same day, the Defendant sent representatives to erect iron poles and metal sheets to block the small gate at the other end of the Disputed Land which was the only entrance to the premises of Wah Fu.

The ex parte application

6.  On 7 July 2007, the Plaintiffs applied to the court ex parte with notice served in the course of the hearing and was eventually granted an injunction ("Order") which restrained the Defendant, whether by itself, its servants, agents, employees or otherwise howsoever from blocking or otherwise erecting any structure obstructing the access to or egress from the entrances to or exits from the Plaintiffs’ premises situate on the Disputed Land (referred to as "the Trespassed Land" in paragraph 1 (a) of the Order), until the return date on 13 July 2007 or until further order.  The Plaintiffs now seek by the Summons  the continuation of the Order, as well as further injunctions to restrain the Defendant, whether by itself, its servants, agents, employees or otherwise howsoever from (1) intimidating, annoying, causing nuisance to or otherwise interfering with or in any way disturbing the peaceful and quiet enjoyment by the Plaintiffs, their servants or agents of the Plaintiffs’ premises including the Disputed Land, or threatening to do any of the above acts; and  (2) inciting, procuring, instigating or permitting, directly or indirectly, any person to do any of the said acts.

Whether there was material non-disclosure

7.  In opposing the Summons, the Defendant claims that the Plaintiffs had failed at the ex parte hearing to make full and frank disclosure.  It is claimed that at the ex parte application, the Plaintiffs had misled the court when claiming that the main gate to the premises of the 2nd Plaintiff was the only entrance to the 2nd Plaintiff's premises, and that the small gate to the premises of Wah Fu was the only entrance to Wah Fu's premises.  The Defendant claims that in fact, people and vehicles can pass through the Disputed Land from the main gate to the small gate, and vice versa.  The Defendant submits that on 7 July 2007, when the ex parte injunction was granted, the court might have a misconception that if the main gate was blocked by the Defendant, the Plaintiffs would not have any vehicular access to or egress from the 2nd Plaintiffs' premises.  The Defendant submits that if the Plaintiffs had disclosed to the court the fact that vehicles might pass through the small gate to gain access to the 2nd Plaintiff’s premises, "albeit with difficulty", the degree of legitimate urgency in granting the ex parte injunction would have been lesser.

8.  In support of the claim of material non-disclosure, an affirmation of Chan Ho Chi was filed on behalf of the Defendant.  Plans are exhibited to the affirmation, to show that there are two roads leading to the Disputed Land.  One leads to the main gate of the Disputed Land (" Blue Road"), and one leads to the small gate at the other end of the Disputed Land ("Pink Road").  The Defendant claims that paragraphs 34 and 35 of the 1st affirmation of Chan Chak Sang ("Chan") made on behalf of the Plaintiffs and used at the hearing on 7 July 2007 suggest that the Blue Road is the only vehicular access to the Plaintiffs' premises which, the Defendant claims, is untrue, as the Plaintiffs could have used the Pink Road "with no difficulty at all".

9.  It is obviously important to examine paragraphs 34 and 35 of the 1st affirmation of Chan, as this was the main affirmation filed in support of the Plaintiffs' application when the ex parte injunction was granted.

10.  Chan states in paragraph 34 of his 1st affirmation as follows:

"

On 5 July 2007, the Defendant's agents and/or servants came to the said land again and intended to erect iron poles on the Defendant's own land but immediately outside the main gate of the said Land (defined in hisaffirmation to mean the Adjacent Land and the Disputed Land) which is the only entrance of the 2nd Plaintiff's business premises. … There are now produced and shown to me marked "CCS-13" a bundle of photographs taken at the said land on 5 July 2007 showing that the said iron poles had totally blocked the said main gate and prevented vehicles from entering and/or leaving the said Land which has totally interfered with the business of the second Plaintiff.  "

11.  In paragraph 35 of his 1st affirmation, Chan states as follows :

"	The said main gate is leading to the road as shown on the plan.  The road is an essential channel for the Plaintiffs and other inhabitants in the neighborhood and has been existing for more than 30 years."

12.   Pursuant to paragraph 7 of the Schedule to the Order, the 2nd affirmation of Chan was filed on 9 July 2007 to confirm the substance of what was said to the court by the Plaintiffs' counsel at the ex parte hearing.  It is relevant to consider the 2nd affirmation to obtain a picture of what the Plaintiffs informed the court on 7 July 2007.  In addition to correcting errors contained in his 1st affirmation, Chan states in his 2nd affirmation:

"	5.	There is a family residing within the business premises of the 2nd Plaintiff.  The main gate is the only entrance of the 2nd Plaintiff for vehicles to pass through.  The said family has been residing in the said location for more than 40 years.
	6.	On 7 July 2007, both the main gate and the smaller gate referred to in my 1st affirmation have been blocked by iron poles and metal sheets and have been so blocked ever since until on the day of the making of this my affirmation.  There is now produced and shown to me marked "CCS-14" and "CCS-15" two bundles of photographs respectively taken at the said main gate and smaller gate on 8 July 2007.
	7.	The lorry which the Defendant parked outside the main gate on 6 July 2007 has not been parked there permanently but only from time to time since the erection of the metal sheet on 7 July 2007."

13.   Examining the papers which were put before the learned judge on 7 July 2007 and the information presented at the ex parte hearing, it is clear that the Plaintiffs had differentiated between the premises of the 2nd Plaintiff and those of Wah Fu.  In his 1st affirmation, Chan referred to the main gate as "the only entrance of the 2nd Plaintiff's business premises".  He separately referred to the small gate as "the only entrance of Wah Fu".  From the Skeleton Argument of the Plaintiffs used at the ex parte hearing on 7 July 2007, it is also clear that the Plaintiffs referred to the Defendants' erection of iron poles outside the main entrance as completely blocking vehicular access to and egress from the 2nd Plaintiff's premises, and separately to the erection of iron poles outside the entrance gate of Wah Fu, as completely blocking vehicular access to and egress from Wah Fu's premises.

14.  It would appear from the materials laid before the learned judge on 7 July 2007 that the main thrust of the Plaintiffs' submissions which led to the grant of the injunction on 7 July 2007 was that the Plaintiffs' business interests had been severely tampered with, and that the safety of the occupiers on the Disputed Land was at stake, particularly in the event of emergencies, when the main gate and the small gate were blocked.

15.  In response to the evidence filed on behalf of the Defendant, the Plaintiffs produced evidence to explain that the 2nd Plaintiff and Wah Fu, as tenants of the 1st Plaintiffs, occupy different portions of the Disputed Land and the Adjacent Land, which portions of land are physically divided.  Both the 2nd Plaintiff and Wah Fu carry on the business of marble trading and processing.  The Blue Road leads to the main gate, which is the only entrance of  the 2nd Plaintiff.  The Pink Road leads to the small gate, which is the only entrance for the premises of Wah Fu.  According to the Plaintiffs, the portions of the land occupied by the 2nd Plaintiff and by Wah Fu respectively are physically separated, and there is no thoroughfare for vehicles from one part of the Disputed Land to the other part.  Vehicles may only pass from one part of the Disputed Land to the other if and only if the structures, erections and buildings which separate the business premises of the 2nd Plaintiff and those of Wah Fu are removed or demolished.  The Plaintiffs' evidence is that even if these structures, etc are removed, large or long vehicles such as container trailers and some types of emergency and fire services vehicles will not be able to pass through the Disputed Land from the small gate at one end to the other parts of the Disputed Land at the other end, because there is a sharp bend on the Pink Road leading to the small gate which prevents large or long vehicles to enter the Disputed Land through the small gate.

16.  Photographs have been adduced by the Plaintiffs to show the structures which exist and which divide or separate the parts of the Disputed Land occupied by the 2nd Plaintiff and Wah Fu.  These comprise large metal frames, buildings, steel structures and metal storage containers - the last of which are, unfortunately, commonly seen on New Territories land in Hong Kong.  It appears to be clear from the photographs that these structures which exist and stand on the premises in question are not readily transportable.  I therefore cannot accept the Defendants' submissions to the effect that the Plaintiffs should have informed the court on 7 July 2007 that vehicles could easily or otherwise pass through the Disputed Land from the small gate at one end to the main gate or the 2nd Plaintiffs' premises at the other end, and vice versa, if the metal containers and other structures were demolished or removed by some means.  Nor am I persuaded that the learned judge would have considered that the safety of the occupiers within the Disputed Land would not have been jeopardized, or that the business interests of the 2nd Plaintiff would not have been affected, had the Plaintiffs disclosed this fact.

17.  More importantly, as counsel for the Plaintiffs pointed out, both the main gate and the small gate had been blocked by 7 July 2007 when the Defendant erected iron poles and metal sheets immediately outside both gates.  Even if it were true, as the Defendant alleges, that despite the blocking of the main gate, there was still vehicular access to the 2nd Plaintiffs' premises from the small gate on the other end of the Disputed Land, this point is immaterial or academic, as the small gate was in fact also blocked by the Defendant.  Counsel for the Plaintiff also pointed out that Chan Ho Chi was only able to state, in his affirmation filed on behalf of the Defendant, that provisions were made for people (and not vehicles) to walk in and through the Disputed Land after the iron poles were installed.

18.  Having considered all the evidence, I do not accept that the fact of vehicles being able to pass from one end of the Disputed Land to the other ( i.e. from the small gate to the main gate) provided that the large structures currently standing on the Disputed Land are removed or demolished, is material or relevant to the weighing operation which the court has to make in deciding whether or not to grant the Order on the ex parte application.  There is no material non-disclosure.

The continuation of the injunction

19.  In relation to the Plaintiffs' application for the continuation of the injunction granted under the Order, I am satisfied that there is a serious question to be tried as to the Defendants' liability to the Plaintiffs in nuisance, in relation to their acts of blocking and obstructing the access to and egress from the Disputed Land (Lippiatt v. Gloucestershire Council [1999] 4 All ER 149; Clerk & Lindsell on Torts para 20-52).  The Defendant's' liability for the intimidation of the 2nd Plaintiff and Wah Fu is also a question to be tried.

20.  In the affirmation of Chan Ho Chi filed in opposition to the Summons, it is claimed that the iron posts where the Defendant had installed the new gates outside the main entrance were installed on the land belonging to the Defendant, and not on the Disputed Land.  Even if this is true, the iron poles and the new gates referred to by the Defendant had the effect of completely blocking the entrance to the premises of the 2nd Plaintiff.  There is a serious question to be tried as to whether this constitutes nuisance in the form of interference with the Plaintiffs' rights of enjoyment of the Disputed Land in which the 1st Plaintiffs claim to have title.

21.  In relation to the obstruction of the small gate, and the iron poles and metal sheets which were erected outside Wah Fu's premises, it is clear even from the plan exhibited to the affirmation of Chan Ho Chi filed on behalf of the Defendant that the obstruction was erected on the public Pink Road, such that the Defendant had no right whatsoever to do this.  When this was pointed out to the Defendant, it offered at the hearing on 28 August 2007 an undertaking not to block or obstruct the entrance to or exit from the premises of Wah Fu, essentially in terms of paragraph 1 of the Order.

22.  Having been satisfied that there is a serious question to be tried, I am also satisfied on the evidence that damages awarded at trial will not be an adequate remedy for the Plaintiffs, particularly since the personal safety of individuals working and residing within the Disputed Land is concerned.  The balance of convenience is in favor of maintaining the status quo so far as the parties' use of their land is in question.  The Plaintiffs and their predecessors in title have been occupying and using the Disputed Land without disturbance by or encroachment from the Defendant or its predecessors in title since 1973, and the 2nd Plaintiff and Wah Fu, as licensees of the 1st Plaintiffs, have been using the main gate and the small gate as their respective entrances to their premises.  The Defendant only took steps from May 2007 to erect the iron poles and the metal sheets and otherwise to obstruct the gates and prevent the 2nd Plaintiff and Wah Fu to gain access to the Blue Road and the Pink Road.

Orders

23.  I am therefore prepared to grant an order in terms of paragraphs 1 to 3 of the Summons.  In view of the undertaking already given by the Defendant to the court on 28 August 2007 in relation to the blockage and obstruction of the entrance to or exit from the premises of Wah Fu, I will grant an order to restrain the Defendant, whether by itself, its servants, agents, employees or otherwise howsoever, until trial or further order, from blocking or otherwise erecting any structure obstructing the access to or egress from the entrance to or exit from the 2nd Plaintiff's premises situate on the land referred to as "the Trespassed Land " in the Statement of Claim filed by the Defendant on 28 June 2005 in DCCJ No. 3039 of 2005.  As for paragraph 3 of the Summons, in view of the undertakings and cross-undertakings given by the parties at the hearing before HH Judge H. C. Wong on 13 July 2007, the order I shall make will be amended to read:

"	The Defendant, whether by itself, its servants, agents or employees do within 14 days demolish or remove any iron poles, stationary vehicles and  other structures or obstacles which are now blocking or obstructing any of the entrances to or exit from the Plaintiffs' premises."

24.  The Plaintiffs' undertaking to comply with any order that the court may make as to damages, should the court later find that this order has caused loss to the Defendant and decide that the Defendant should be compensated for that loss, will of course apply.

25.  The costs of the Plaintiffs' ex parte application and their application by the Summons are to be the Plaintiffs' costs in the cause, to be taxed if not agreed, with certificate for counsel.