LOW KUM CHOY v. ALL WRONGFUL AND UNLAWFULLY TRESPASSING OCCUPIER(S) OF A PORTION OF SECTION A OF LOT NO. 139 IN D.D. 238, PAN LONG WAN, SAI KUNG, NEW TERRITORIES

DCCJ 406/2023

[2023] HKDC 861

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 406 OF 2023

------------------------

------------------------

------------------------

JUDGMENT

------------------------

(A)  Nature of application

1.  This is the plaintiff's application for default judgment against the defendant under O 13 r 6 and O 19 r 7 of the Rules of the District Court (Cap 336H).

(B)  Pleading

2.  On about 2 February 2023, the plaintiff issued the writ of summons endorsed with the statement of claim. The writ of summons and the statement of claim were amended on about 21 March 2023 (“Amended Writ of Summons” and “the Amend Statement of Claim” hereinbelow).

3.  According to the Amended Statement of Claim, the plaintiff pleaded the following facts:-

(a)  At all material times, the plaintiff is the registered owner of ALL THAT piece of parcel of ground registered in the Land Registry as Section A of Lot No 139 in DD 238, Pan Long Wan, Sai Kung, New Territories (“the Land”).

(b)  The defendant was and is the occupier(s) of a house or structure which was erected on Section B of Lot No 139 in DD 238 and the Remaining Portion of Lot No 139 in DD 238, Pan Long Wan, Sai Kung, New Territories (“the House”). The said two pieces of land are immediately adjoining and/or adjacent to the Land.

(c)  Since the erection of the House in or about April 2022, the House and/or part of the House had wrongfully and unlawfully encroached upon and trespassed on the Land (“Trespassed Part of the House” hereinbelow), as identified on a plan attached to the Amended Statement of Claim, without permission and/or consent of the plaintiff. The encroached and/or trespassed portion on the Land was coloured pink on the said plan attached to the Amended Statement of Claim (“the Trespassed Portion”).

(d)  The plaintiff’s solicitors issued a letter dated 10 October 2022 to the defendant requiring the defendant to demolish all structures on the Trespassed Portion and to deliver vacant possession of the Trespassed Portion to the plaintiff.

(e)  However, the defendant failed and/or refused to demolish all structures on the Trespassed Portion and/or deliver vacant possession of the Trespassed Portion to the plaintiff.

(f)  The plaintiff has been deprived of the use and enjoyment of the Land, in particular the Trespassed Portion and has thereby suffered loss and damage.

(g)  The plaintiff claims mesne profits for the period of wrongful occupation of the Trespassed Portion until delivery of vacant possession of the same. Alternatively, the plaintiff claims damages for the defendant’s trespass of the Trespassed Portion.

(h)  The defendant threatens or intends to continue the trespass on the Trespassed Portion unless the defendant is restrained by the court. The plaintiff claims injunctive relief against the defendant in respect of his trespass on the Trespassed Portion.

(C)  Service of the Notice of Proceedings

4.  The plaintiff effected service of the proceedings, the present summons for default judgment and notice of hearing by three affirmations of service.

5.  By the Affirmation of Lai Chi Man filed on 22 March 2023, the plaintiff served the Amended Writ endorsed with the Amended Statement of Claim on the defendant on 22 March 2023 by:-

(a)  sending the same by ordinary post properly addressed to the defendant at Section B and the Remaining Portion of Lot No 139 in DD 238, Pan Long Wan, Sai Kung, New Territories being the last known address of the said defendant; and

(b)  affixing the same in a conspicuous place on an entrance of the Trespassed Portion.

6.  By the 2^nd Affirmation of Lai Chi Man filed on 8 June 2023, the plaintiff served the present summons for default judgment on the defendant on 31 May 2023 by:-

(a)  sending the same by ordinary post properly addressed to the defendant at Section B and the Remaining Portion of Lot No 139 in DD 238, Pan Long Wan, Sai Kung, New Territories being the last known address of the said defendant; and

(b)  affixing the same in a conspicuous place on an entrance of the Trespassed Portion.

7.  According to exhibit LCM-4 of the 2^nd Affirmation of Lai Chi Man, a photograph was exhibited to show that the summons was affixed on an entrance of the Trespassed Portion. It can be seen that the Summons was actually affixed on the same place where the Amended Writ was affixed on 22 March 2023. But on 31 May 2023, the Amended Writ and the plaintiff's solicitor’s covering letter (which were affixed on the entrance of the Trespassed Portion on 22 March 2023 as shown on exhibit LCM-2 of the Affirmation of Lai Chi Man) had already been removed on or before 31 May 2023.

8.  In addition, the plaintiff's solicitors also served on the defendant the written submission of the plaintiff, the draft order, the draft judgment, the plaintiff’s list of authority with case authority, the notice of hearing (change of venue) dated 2 June 2023 (“the Hearing Documents”). According to the 3^rd Affirmation of Lai Chi Man filed on 13 June 2023, the plaintiff served on the defendant the Hearing Documents on 13 June 2023 by affixing the Hearing Documents on a conspicuous place on an entrance of the Trespassed Portion. Exhibit LCM-6 thereof was a photograph which shows that the Hearing Documents are affixed on the same place where the summons was affixed on 31 May 2023. But on 13 June 2023, the summons affixed on 31 May 2023 had been removed.

9.  I am satisfied that by the plaintiff has duly served on the defendant the notice of the proceedings, the summons for default judgment and notice of hearing on 16 June 2023.

10.  No notice of intention to defend has been filed by the defendant. Defendant is absent at this hearing.

(D)  Default Judgment

11.  It is trite law that in an application for default judgment under O 19 r 7 of the RDC, the court would give judgment according to the pleadings alone, it is not necessary for the plaintiff to prove his case by evidence: Cheung Sai Lon v Cheung Sai Ha and Anor [2020] HKCFI 2551, at paras 29 & 30.

12.  The relevant legal principles on granting default judgment under O 19 r 7 were succinctly summarized in Times Square Limited v Lee Kwun Kit trading as JL Music and Anor, HCA 2244/2018 at para 14. In Time Square Limited case (supra), the Court of First Instance held that the court's power to grant default judgment is discretionary and not mandatory; and that the court has jurisdiction to grant a permanent injunctions in default judgments, citing Biostime International Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658 at paras. 12 and 13.

13.  An owner is prima facie entitled to possession of his own land. An owner an actionable right to claim against those who had wrongfully trespassed onto his land or any part thereof without his permission or consent.

(E)  Exercise of Discretion on Granting Injunctive Relief by Default Judgment

14.  On the material facts pleaded by the plaintiff in his Amended Statement of Claim, I have taken into account the following matters which tend to support granting an injunction by default judgment in this case:-

(a)  the plaintiff is the owner of the Land including the Trespassed Portion;

(b)  the Trespassed Part of the House, ie the part of the House on the Trespassed Portion, was erected without the plaintiff’s permission or consent;

(c)  the plaintiff’s right and enjoyment of the Land will continue to be adversely affected, if the Trespassed Part of the House is not demolished;

(d)  the plaintiff’s right and enjoyment of the Trespassed Portion will continue to be deprived of, if the Trespassed Part of the House is not demolished;

(e)  by his solicitor’s letter dated 10 October 2022, the plaintiff has already demanded the defendant to demolish all structures erected on the Trespassed Portion, but the plaintiff’s demand was wrongfully ignored by the defendant;

(f)  despite the service of the Amended Writ endorsed with the Amended Statement of Claim, the present summons, the Hearing Documents, the defendant still ignored the plaintiff's demand for demolition of the structures on the Trespassed Portion; and

(g)  the defendant will continue his trespass of the Trespassed Portion, unless he is required by the court to demolish or remove the same.

15.  However, there are the following matters that the court should be slow in granting a mandatory injunction in this case:-

(a)  the formulation of the mandatory injunction in this case is not precise and/or lacks particularity. In the present case, the plaintiff prayed for a mandatory injunction that “An injunction requiring the defendant demolish or otherwise remove all structures erected on the Trespassed Portion at their own costs and expenses within 21 days from the day of the order made herein”;

(b)  there is no pleading that the defendant was the owner or builder of Trespassed Portion of the House;

(c)  the defendant in this case is an unnamed defendant;

(d)  there is no pleading of the total number of the trespassers who had wrongfully occupied the Trespassed Part of the House;

(e)  there is no pleading as to whether the plaintiff knew the defendant and/or the owner(s) of Section B of Lot No 139 and the Remaining Portion of Lot No 139 both in DD 238; and

(f)  there is no pleading of the relationship between the defendant and the owner(s) of Section B of Lot No 139 and the Remaining Portion of Lot No 139 both in DD 238.

(F)  Analysis

16.  In Billion Star Development Limited v Wong Tak Chuen and 9 Others, unrep, HCA 708/2011, 10 February 2012, the 7^th defendant thereof was named as “Person Entering or Remaining without the Consent of the Plaintiff at the Remaining Portion of New Kowloon Marine Lot No. 25 and Section B of New Kowloon Marine Lot No. 25 and Other Persons Interfering with the Plaintiff's Right of Way Over the Private Roads in Mei Foo Sun Chuen in Connection with the Protests Against the Plaintiff’s Proposed Development of the Said Properties”. The Court of First Instance held that:-

“54. I therefore accept the Plaintiff’s submissions that the Court has power to grant an injunction against a Defendant described not by name but by reference to his conduct provided that the description is sufficiently certain to identify only those who are necessarily included and exclude those who are not” (per Hon Au J, as he then was, at para. 54): see also Hamsphire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2004] Env LR 9 at paras 6‑8 per Sir Andrew Morritt VC.

17.  In Chan Hon Hong and 3 Others v Li Man Fan, unrep, DCCJ 690/2015, 5 June 2015, the District Court held that:-

“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.” (per HH Judge Levy at para. 42)

18.  In the present case, the plaintiff pleads that the House and/or part of the House had wrongfully and unlawfully encroached upon and trespassed on the Land as identified on the plan attached to the Amended Statement of Claim, ie the Trespassed Portion. The plaintiff asks for a mandatory injunction against an unnamed defendant requiring the unnamed defendant to remove all structures erected on the Trespassed Portion.

19.  First of all, the unnamed defendant is defined as “all wrongful and unlawfully trespassing occupier(s)” of the Trespassed Portion. Hence, the defendant herein will include:-

(a)  the persons who actually erected the Trespassed Part of the House (or all structures on the Trespassed Portion);

(b)  the persons who own the Trespassed Part of the House (or all structures on the Trespassed Portion);

(c)  the owner of the House;

(d)  the owner(s) of Section B of Lot No 139 in DD 238 and the Remaining Portion of Lot No 139 in DD 238, Pan Long Wan, Sai Kung, New Territories;

(e)  all other persons occupying the Trespassed Portion with permission of the trespasser of the Trespassed Portion, such as their children (if any), their domestic helpers (if any), tenants (if any) and other licensees (if any).

20.  In respect of the occupiers as identified at sub-paragraph 20(e) hereinabove in particular, the mandatory injunction as formulated by the plaintiff will cause unfairness and/or disproportionate hardship to them. It is because once the mandatory injunction order is personally served on them by the plaintiff, they will be bound by the injunction order to demolish or remove all structures on the Trespassed Portion. They may not be the persons who erected the Trespassed Part of the House or the structures on the Trespassed Portion, they may not be the owner of those structures on the Trespassed Portion or the Trespassed Part of the House, it is not right to order them to demolish or remove all structures on the Trespassed Portion by way of a mandatory injunction.

21.  Secondly, in the context of mandatory injunction, the plaintiff had not particularized the precise meaning of “remove all structures on the Trespassed Portion”. A defendant who is subject to mandatory injunction order should know clearly what he was ordered to do. It should also be noted that the plan attached to the Amended Statement of Claim is not a detailed survey plan which has clearly delineated the precise boundary between the Land and the immediate adjacent lot of land, ie the Remaining Portion of Lot No 139 in DD 238, which share a common land boundary with the Land. If the defendant is ordered to remove all structures on the Trespassed Portion, he should be given to know to what extent the House should be demolished. It is because according to the plan attached to the Amended Statement of Claim, the Trespassed Part of the House formed part of the House. In other words, the dimension of the Trespassed Portion is not precisely pleaded for the purpose of mandatory injunction order.

22.  For the above reasons, the court should not exercise its discretion to grant mandatory injunction by default judgment in this case.

23.  Other than the above, I am satisfied that the Plaintiff has made out a proper case by his Amended Statement of Claim for the relief of order for possession and prohibitory injunction against the defendant by default judgment. As pointed out hereinabove, the plaintiff is the registered owner of the Land, he is entitled to possession of the Land. The defendant should deliver vacant possession of the Trespassed Portion to the plaintiff. Furthermore, I am satisfied that if the prohibitory injunction is not granted in this case, the defendant or his agents, licensees or workers will continue to trespass onto the Trespassed Portion.

24.  Mr Yung, counsel for the plaintiff, confirms that the plaintiff does not pursue the claim for mesne profit or damages for trespass.

(G)  Disposition

25.  It is ordered that:-

(1)  The defendant to deliver vacant possession of the Trespassed Portion as defined in the Amended Statement of Claim and coloured pink on the plan attached to the Amended Statement of Claim within 28 days after service of this order;

(2)  the defendant, whether by himself, or by his agents, employees, licensees or otherwise howsoever, be restrained from entering the Trespassed Portion;

(3)  Costs of the action and this application be paid by the defendant to the plaintiff, with certificate for counsel; and

(4)  Liberty to apply for further directions.

26.  I thank counsel for his assistance to the court.