WEALTH TEAM DEVELOPMENT LTD v. CHOI CHUNG CHING

HCA 4865/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4865 OF 2002

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REASONS FOR DECISION

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1. The Plaintiff company is the owner of a plot of land known as Tai Po Town Lot No. 161 on which it is developing 549 town-houses. In the light of the economic situation its investment may well constitute a loss. That would not normally be relevant but in this case it illustrates the need to effect sales at the earliest opportunity to recoup the outlay, or as much of it as possible. Land adjacent to the development was leased for 5 years to the Plaintiff's associated company, to act as a buffer for the development.

2. The Defendant entered into a tenancy of a traditional village type house situated at the entrance to the development more than one year after the buffer land was acquired and shortly after the occupation permit in respect of Phases I and II of the development was issued. Although this traditional house has nothing to do with the development, its situation resembles something akin to a lodge or gate-house for the development. A large number of the houses in the development overlook the village house. Persons approaching to view the development cannot avoid being aware of the village house and anything directly associated with it.

3. It transpires that the defendant has no licence to occupy the tenanted premises and certainly no permit to use it as business premises. These matters are of moment when I come to consider his landlord's proceedings against him which are concurrent with these by this Plaintiff.

4. The houses in the development were expected or hoped to be on the market by early December 2002. From September of that year the promotion of sales began. At or about the same time a number of activities on, in and about the Defendant's premises were attracting adverse notice and comment. Indeed the feeling on the part of the neighbouring public was becoming so extreme that demonstrations started to occur.

5. The activities which had brought about these demonstrations of extreme feeling and complaints were what appeared to be funeral or mourning services with various banners, signs and flags advertising these. At one stage two large red traditional coffins appeared on the roof of the building. The position of these was later adjusted. What purpose they served being on the roof is difficult to surmise. Being at that height they would not attract the attention of the casual passer-by or even the enthusiastic customer. They were however readily visible to any would-be occupants of the town-houses for sale on the development because such dwellings had an elevated position and looked onto and over the Defendant's village house.

6. The Plaintiff's concern throughout has been to obtain the removal of all the external paraphernalia and a cessation of the activities. Eventually when the appropriate authority conducted an investigation of the premises and activities with a view to ascertaining whether unlicensed activities were being conducted it was apparent that there were no actual funeral or mourning services being carried out. The activities were therefore a sham or pretence, and nonetheless objectionable because of that. It was difficult if not impossible therefore to determine why they were being carried out. One obvious explanation is that they were being conducted deliberately to cause a nuisance, in the broadest sense of term.

7. In the course of his submissions on behalf of the Defendant, Mr. Tony Ng drew my attention to a number of documents purporting to support the contention that the Defendant was conducting an agency business for a Mainland company, known as Shenzhen Sili Baoenfudi Cemetery Service Co. Ltd which was concerned with the sale of graveyard plots. No documents have been produced to suggest this agency business has actually started to trade. Certain it is that the activities and display of paraphernalia of which complaint is made have nothing to do with the purported agency business and Mr. Ng has not sought to suggest otherwise.

8. Proceedings were commenced against the Defendant by his landlord on 28 December 2002. The claim is based upon breaches of covenant and nuisance. An injunction was obtained against the Defendant on 3 January 2003 preventing him from continuing what is alleged to be a nuisance in the form of precisely the same activity and display of paraphernalia to which this Plaintiff objects viz.:

holding mock or real funerals;

playing funeral music;

displaying a number of signs advertising funeral and mourning services;

displaying altars on the premises (as shown in photographs) with the burning of candles,

building furnaces for the burning of any materials associated with such services;

displaying any funeral banners, paper effigies or coffins in or outside the premises.

He was also required to remove any of these items which were still displayed or in situ.

9. The Plaintiff obtained its injunction on the same date and served its Statement of Claim on 10 January 2003.

10. There is clearly a serious issue to be tried. The Plaintiff has a strong case in nuisance. I am satisfied that the Defendant's activities, if allowed to continue, constitute a serious threat to the Plaintiff's business and its return upon its investment. It is not difficult to see that many would be inhibited from buying such properties if the Defendant's activities were to be allowed to continue. Such activities are not necessary for any business of the Defendant, whatever he is permitted or not permitted to do by the terms of his covenant. Whereas the Plaintiff's ability to meet any claim for damages by the Defendant is not seriously questioned - and to that end the ability to proceed with the sales of the town-houses without impediment or blight is relevant - the Defendant's ability to meet any such judgment is on the face of it non-existent.

11. Quite apart from that factor the Defendant is already under identical restraint by his landlord. The Plaintiff's injunction does not therefore create any inconvenience or new state of affairs.

12. At one stage I was attracted by Mr. Ng's argument that since the front and side of the Defendant's house is now screened by some mature trees, swiftly planted I am told by the landlord, there would be no need for that part of the injunction which restrained him from carrying on any activities within the premises, to continue. The Defendant was, it was argued, entitled to do what he wished on the premises which could not thus be said to constitute a nuisance.

13. However two matters eliminated this from any variation of approach. The landlord's own injunction encompassed activities within the premises and there was clear evidence before the screening trees were planted, that the Defendant was making an open display with windows and shutters removed or wide open, of altars, effigies etc. Furthermore there was no need for the Defendant to carry out such activity in connection with any business carried on there legitimately or otherwise. The Defendant having through counsel indicated before me and before Sakhrani, J. that he was willing to suspend all activities on and outside the premises, I could see no good reason for his wanting to carry them on inside the premises.

14. I confirm the continuation of the injunction. The costs will be reserved but I feel constrained to say that the Defendant's resistance to the continuance of the injunction in the respect which I have identified, was wholly artificial and raised in my mind the picture of a spurious attempt to salvage something of no benefit given the ambit of the landlord's injunction against him. There is a strong case for the Defendant being required to pay these costs whatever the final outcome.