KWAN CHI WAI v. KWAN WING TAT

HCA 1020/2021

[2022] HKCFI 75

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1020 OF 2021

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REASONS FOR DECISION

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INTRODUCTION

1.  By a summons dated 6 December 2021, the Plaintiff seeks leave to appeal against an order granted by this Court on 22 November 2021 by which this Court ordered the Plaintiff to pay the Defendant’s costs of the hearing on 22 November 2021 in relation to the Plaintiff’s summons dated 7 July 2021 (“the Summons”). This Court summarily assessed the costs at HK$66,000.

2.  On 7 July 2021, the Plaintiff took out an inter-partes summons under Order 29 of the Rules of the High Court, Cap. 4A and the inherent jurisdiction of the court to seek  the following orders:

“1. The Defendant, whether by himself, his servants, agents or otherwise, until further order of the Court, be restrained from:-

(a) holding and/or continuing any party within the area of No.170, Ma Tin Tsuen, Yuen Long, New Territories and/or at No.171, Ma Tin Tsuen, Yuen Long, New Territories (“the 2 Premises”) after 11 p.m.;

(b) making any noise at the 2 Premises after 11 p.m.; and

(c) throwing any items or making noise towards No.170, Ma Tin Tsuen, Yuen Long, New Territories.”

THE DECISION

3.  At the beginning of the substantive hearing, I indicated to Ms Lau for the Plaintiff that the Court could not possibly make an order in terms of the Summons for the simple reason that the terms of the said summons were so vague and uncertain that it is impossible to monitor and oppressive against the Defendant. Paragraph 1(b) of the Summons seeks to restrain the Defendant from making “any noise at the 2 Premises after 11 p.m.”.  Any noise is not defined. So, in effect, the Defendant can make no noise at all after 11 p.m..  I am of the view that such order cannot possibly be made.  It is up to the Plaintiff to formulate sensible and workable terms of the order he sought.  Mr Cheung for the Defendant was correct in submitting that the words “any noise” must inevitably encapsulate all decibel levels of sound. Without a proper and exact definition, or measurement, of the level of sound for the Defendant to emit after 11 p.m., an order in terms of the Summons would unduly infringe the Defendant and his family’s lives and their right of enjoyment of their house as any noise after 11 p.m. would amount to contempt of court. The Court cannot and will not make such an order.

4.  Paragraph 11(a) of the Summons suffers the same problem as the words “any party” are vague and not capable of being policed.  Mr Cheung for the Defendant submitted that an order in such terms would in effect prevent the Defendant from having family gathering of any sort after 11 p.m.  I agree that that cannot be right.

5.  Further, paragraphs 1(a) and (b) also seek to bind the Defendant from occasioning any noise to be created within the premises of House 171.  I agree that it is unreasonable to bind the Defendant into the position of controlling the noise emitted and/or parties held in House 171 when the Defendant does not physically occupy and/or own in any capacity House 171.

6.  Paragraph 1(c) is difficult to understand. It seeks to restrain the Defendant from “throwing any items or making noise towards No.170, Ma Tin Tsuen, Yuen Long, New Territories.” But House 170 is the Defendant’s own house. Further, “throwing any items” or “making noise” are similarly vague and in my view, impossible to police.

7.  Additionally and importantly, the only evidence that the Plaintiff produced and relied upon is his own bare allegation as to the nuisance and noise levels allegedly created by the Defendant. No objective or forensic evidence was produced, for example, the Plaintiff’s recording of the level of the sound created by the Defendant after 11 p.m. (See Jack Gordon Leslie Smith & Anor v Tam Michael Wing Wah & Anor [2007] HKCU 1004 at §14 per Deputy High Court Judge Gill.) There is also the want of any independent source noting the noise. (See, for example, the case of Bhatti Bhupinder Singh v Lee Chui Tak & Others [2019] HKCU 4355.)

8.  Mr Cheung for the Defendant rightly submitted that in deciding whether a complaint of noise nuisance is substantiated, the court will not take into account a plaintiff’s subjective sense of sound. (See Ng Yuen Han v Wong Fei Fu & Anor, [2013] 3 HKLRD 608 at §21.) In the present case, the Plaintiff’s affirmations only contain his own subjective sense of the alleged noise. There is no objective or independent evidence to substantiate the Plaintiff’s case.

9.  I should mention that the above inherent defects of the Summons were set out in the Defendant’s Skeleton Submissions dated 18 November 2021.  Yet at the substantive hearing, Ms Lau for the Plaintiff still pressed for an order in terms of the Summons without proposing any amendments or revisions to the Summons.

10.  Accordingly, I indicated to Ms Lau that the Court was not minded to make an order in terms of the Summons.

11.  However, in order to resolve the dispute pragmatically, the Court did invite the Defendant to consider if he could offer any undertaking as to the level of sounds that should not be produced in House 170 after 11 p.m..  I also stood down the case so that the parties could agree on a sensible arrangement pending the trial of this action.

12.  Eventually, the Defendant agreed to  give an undertaking that he, whether by himself, his servants, agents or otherwise, until further order of the Court, will not persistently make noise over 65 decibels from No. 170, Ma Tin Tsuen, Yuen Long, New Territories from 11 p.m. to 7 a.m.  I accepted the same and made no order on the Summons.

13.  The Plaintiff also undertakes to pay damages, if any, to the Defendant if it turns out that the above undertaking should not have been given.

14.  As far as costs was concerned, originally, this Court was inclined to make an order that costs of the Summons be in the cause of the action. However, Mr Cheung made the submission that had the Plaintiff been reasonable and come up with terms which are workable and clear, the Defendant would likely have agreed to it and the hearing on 22 November 2021 would have been avoided. Mr Cheung submitted that the Defendant had not caused any nuisance and insofar as any noise level above 65 decibels, the Defendant had never and would never produce after 11 p.m.. Hence, the Defendant was prepared to give the undertaking.

15.  When being asked by the Court as to why the Plaintiff could not have proposed reasonable terms to the Defendant before the hearing, Ms Lau for the Plaintiff only submitted that the Plaintiff needed to come to court in any event.  I disagree.  I am of the view that the terms of the Summons are unworkable and oppressive. It is up to the Plaintiff to propose reasonable and workable terms for the Court and the Defendant to consider.  As it turned out, the parties were able to reach consensus on a sensible undertaking.

16.  Accordingly, I decided that the Defendant should have the costs of the hearing but the costs of the Summons is to be in the cause of the action. I also summarily assessed the costs of the hearing at HK$66,000.

17.  It is this costs order that the Plaintiff seeks leave to appeal against.

ANALYSIS

18.  Having read the draft Notice of Appeal and Ms Lau’s submissions, I am of the view that the Plaintiff does not have a reasonable prospect of success in the appeal.  Accordingly, I dismiss the application. 

19.  First, Ms Lau submitted that this Court should have insisted making no order as to costs for the hearing. However, Ms Lau has not addressed the point of why the Plaintiff had not formulated his terms of order precisely and clearly.  There is also no answer to why Ms Lau still pressed for an order in terms of the Summons at the substantive hearing.

20.  This Court notes that the Summons was resisted by the Defendant. Had the Plaintiff formulated a different application, the Defendant might not have resisted it.  Indeed, Mr Cheung for the Defendant submitted that the Defendant has no problem in not making noise above the level of 65 decibel after 11 p.m. but he disagrees that he has created any noise nuisance to the Plaintiff.

21.  Even if the Plaintiff only proposed a level of noise level at the hearing and the Defendant accepted it with or without any revisions, the Defendant is entitled to the costs of the hearing as this could have been resolved without a court hearing had the Plaintiff proposed sensible terms in the first place.

22.  Secondly, Ms Lau complained that this Court has not verified what counsel for the Defendant told the Court.  First, it should be noted that it was an inter partes hearing, there cannot be any suggestion that Ms Lau was not given the right to reply or to correct the counsel for the Defendant as and when she saw fit.  Secondly, the reason why the Defendant was awarded with costs is simply that this Court accepted the Defendant’s submission that had the terms of order as proposed by the Plaintiff been sensible and workable, the parties could have achieved sensible arrangement like the undertaking.  As such, the hearing on 22 November could be avoided.  Ms Lau made the submissions that in any event the Plaintiff needed to have his day in court. This attitude is not correct and certainly not to be encouraged.

23.  I should also mention that Ms Lau for the Plaintiff in her skeleton submissions made an allegation that Mr Cheung for the Defendant lied to the Court. Mr Cheung for the Defendant strongly opposed such allegation. Without going into the details, I ascertained from Ms Lau for the Plaintiff whether she still insisedt on making such an allegation against Mr Cheung for the Defendant.  Ms Lau’s position is that she was not making such an allegation at this stage.

24.  Thirdly, Ms Lau also complained that this Court failed to allow the counsel for the Plaintiff to oppose the Defendant’s Statement of Costs.  This I find it difficult to fathom as Ms Lau for the Plaintiff were give full opportunity to comment on the Defendant’s Statement of Costs before this Court made the gross sum assessment.

25.  Perhaps what the Plaintiff has not quite appreciated is that the consensus undertaking was suggested by the Court as a means of achieving some practical interim protection to the Plaintiff pending the outcome of the trial of this action. I note that the Plaintiff in his affirmation deposed that he thought that he has won the interim injunction application and as such he should be entitled to costs. I have no idea why the Plaintiff come to such an understanding.

26.  Fourthly, the Plaintiff also submitted that this Court has failed to consider that the Defendant’s legal aid application was rejected by the Legal Aid Department.  First, Ms Lau for the Plaintiff did not make any submission that this was relevant to the court’s exercise of discretion. Secondly, the Defendant’s application for legal aid might have been rejected for a number of reasons. I do not see how this is relevant to the issues to be determined by the Court.

27.  Fifthly, the Plaintiff submitted that this Court has failed to consider the reasonableness and the justification of the costs proposed by the Defendant in the hearing. Again, I fail to understand this submission. The Plaintiff was given full opportunity to comment on the Defendant’s Statement of Costs and Ms Lau cannot point out how the assessed sum of HK$66,000 is excessive except complaining the same is excessive.

28.  As to the complaint that this Court has deprived the Plaintiff’s right have a full taxation which prejudiced the Plaintiff, I see no merits in such argument. The Court is perfectly entitled assess costs on summary basis. This is frequently done by the Court.

29.  At the hearing, Ms Lau for the Plaintiff has not even suggested that the Plaintiff would suffer any prejudice if the Court were to assess the costs on summary basis.

30.  Finally, the Plaintiff complained that this Court failed to entertain further submissions, whether orally or by written submissions on behalf of the Plaintiff for opposing the costs order.  This I fail to understand.  Indeed, the Plaintiff were given full opportunity in court to make submissions.

31.  Ms Lau for the Plaintiff strongly argued that the Plaintiff was granted the injunctive relief, but he has to pay the costs to the Defendant.  It is said that this is highly prejudicial to the Plaintiff.  That submission will be correct had the Plaintiff properly framed his terms of order and filed the relevant objective evidence and the Court duly granted an interim injunction.

32.  However, this is not the case. In fact, the Court made clear to the parties that the Court was not going to make any order on the Summons.  As I said earlier, the undertaking was solicited as an interim measure to protect the Plaintiff’s position.  If the Defendant decided not to offer the undertaking, the Court would still have no basis to make an order in terms of the undertaking or in terms of the Summons.

33.  Ms Lau for the Plaintiff submitted that indeed this Court has made an order in terms of the undertaking.  However, Mr Cheung for the Defendant submitted that the Plaintiff has not sent any draft order for the Defendant’s comments.  The Court proceeded on the basis that the draft submitted by the Plaintiff had been agreed to by the parties.  There is no reason why the Plaintiff had not sent a draft order to the Defendant for comment before submitting the same to the Court.  Accordingly, I accede to Mr Cheung’s request that the Plaintiff do resubmit a draft order for the Defendant’s comments.

34.  For all the above reasons, the Plaintiff’s application for leave to appeal is refused.

35.  Mr Cheung for the Defendant asked for a wasted costs order to be made against the Plaintiff’s solicitors and counsel on that basis that serious and false allegations were made against Mr Cheung personally and the Plaintiff might not have been told the reason for the undertaking and was laboring under the impression that he has won the interim injunction application.

36.  However, given that Ms Lau has withdrawn her allegation during the hearing, and she also undertakes to explain the content of this judgment to the Plaintiff, I will not make a wasted costs order against Ms Lau and the Plaintiff’s solicitors.

37.  I also summarily assess the costs of this application at HK$80,000. The same has to be paid by the Plaintiff to the Defendant forthwith.