IP WING NING JOHNNY AND ANOTHER v. WALLRATH NATALIA SARAH

DCCJ 4172/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4172 OF 2017

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DECISION

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1.  By an inter-partes summons filed on 18 September 2017 (“the summons”), the plaintiffs seek an order that the injunction (“the injunction”) granted in the ex parte hearing on 15 September 2017 be continued until a further order made in these proceedings.

THE PLAINTIFFS’ CASE

2.  The plaintiffs obtained the injunction in the ex parte hearing on the strength of 2 affirmations, ie the 1^st plaintiff’s affirmation and the 2^nd plaintiff’s affirmation.  No statement of claim was placed before the ex parte judge.  Even up to now, the plaintiffs have not yet prepared any statement of claim.

3.  The 1^st plaintiff says the following in his affirmation:-

(a) The 1^st plaintiff is a fortune-teller.  Previously he offered fortune-telling services at a shop in Tsim Sha Tsui (“the Shop”).  He has also offered fortune-telling services through telephone, and he is still offering these services through telephone.

(b) He became acquainted with the defendant in February 2016.  At that time, the defendant was his client.  The 1^st plaintiff and the defendant entered into a romantic relationship in March 2016.  However, in July 2016, the relationship turned sour.  The 1^st plaintiff proposed to end the relationship, but the defendant refused.

(c) Since that time, the defendant threatened to commit suicide and caused troubles to the 1^st plaintiff’s wife and friends.  The defendant also used some other identities to pretend to be some new clients to try to approach the 1^st plaintiff, putting the 1^st plaintiff under immense pressure.  In the 1^st plaintiff’s own words, there are 4 major incidents.

(d) March 2017 Incident

(i) On 11 March 2017, the defendant appeared outside the 1^st plaintiff’s residence in Tseung Kwan O (“the TKO Residence”) and asked for entering into the 1^st plaintiff’s unit to get back her personal belongings.  The 1^st plaintiff refused to allow the defendant to enter the premises and the defendant just stayed outside the door for almost 2 hours.  While the 1^st plaintiff confronted the defendant, the defendant threatened to commit suicide.  The 1^st plaintiff called the police.  After the police arrived, the matter was settled.

(ii) However, that night, a mutual friend of the 1^st plaintiff and the defendant messaged the 1^st plaintiff and told him that the defendant had threatened to commit suicide.

(iii) On 12 March 2017, the defendant wrote something on Facebook defaming the 1^st plaintiff.

(iv) The 1^st plaintiff also received messages from the defendant, by which the defendant threatened to call the police and “come to my place”.

(v) On that day, the defendant went to the Shop to prevent the 1^st plaintiff from providing services to his clients.  As a result of this disruption, the 1^st plaintiff had to call the 2^nd plaintiff (who was the 1^st plaintiff’s friend and former student) to come to the Shop to accompany him.  The 1^st plaintiff had also called the police.  The 1^st plaintiff could not do business in the Shop on that day and therefore closed the Shop.  However, later in the evening, the defendant called the 1^st plaintiff and told him that unless he showed up, the defendant would commit suicide.  The 1^st plaintiff therefore called the police the second time and returned to the Shop.  When he returned to the Shop, he was advised by the police not to approach the defendant.  The defendant was sent to hospital eventually in that evening.

(vi) Since mid-March and until July 2017, the 1^st plaintiff received numerous calls from the defendant.

(vii) As a result of the disturbances caused by the defendant, the 1^st plaintiff restricted his fortune-telling services by providing face-to-face consultation to old clients only.  New clients would be served by telephone consultation.

(viii) The 1^st plaintiff had on multiple occasions received threats from the defendant that she would harass the 1^st plaintiff’s wife, and she would find the wife and commit suicide outside the TKO Residence.

(e) July 2017 Incident

(i) On 19 July 2017, the 1^st plaintiff had a drink with some friends at night inside the Shop.  The defendant called the 1^st plaintiff and then knew that the 1^st plaintiff was in the Shop.  Within a very short time, the defendant arrived the Shop.  The 1^st plaintiff and his friends decided to leave, but the defendant forced her way onto the 1^st plaintiff’s taxi and demanded that the 1^st plaintiff to go to her residence.  The 1^st plaintiff refused.  The 1^st plaintiff and the defendant quarreled inside the taxi.  During the quarrel, under the influence of the alcohol, the 1^st plaintiff hit the defendant.  Eventually, police arrived.

(ii) The 1^st plaintiff was charged with common assault while no charge was laid against the defendant.  The 1^st plaintiff appeared in Kwun Tong Magistracy on 21 July 2017 and the case was dealt with by a binding-over order (“the binding-over order”).

(iii) On 22 July 2017, the 1^st plaintiff was accompanied by his wife to go back to the Shop.  Some clients were waiting him in the Shop. However, apart from those clients, the defendant was also in the Shop.  As a result of the defendant’s annoyance and harassment, the 1^st plaintiff could not do business in the Shop.  The 1^st plaintiff and his wife then left the Shop.  When the 1^st plaintiff and his wife were walking on the street, the defendant continued to stalk on the 1^st plaintiff and his wife.

(iv) After 22 July 2017, the 1^st plaintiff’s wife disagreed to the 1^st plaintiff staying in the TKO Residence.  The 1^st plaintiff also wanted to stay away from his family to avoid affecting them.  The 1^st plaintiff therefore, with the 2^nd plaintiff’s agreement, moved to stay in the 2^nd plaintiff’s residence in To Kwa Wan (“the TKW Residence”).

(v) On 24 July 2017, the 1^st plaintiff through his solicitors sent a pre-action letter to the defendant, demanding her to cease all actions of nuisance. 

(f) August 2017 Incident

(i) In August 2017, the 1^st plaintiff terminated the lease of the Shop.  Fearing that the defendant might show up in the Shop at any time causing disruptions, the 1^st plaintiff was of the view that it was impossible for him to conduct business in the Shop.  After closing the Shop, the 1^st plaintiff had to meet trusted clients in restaurants and cafes to provide consultation services.

(ii) A new client approached the 1^st plaintiff and requested to have a face-to-face consultation on 25 July 2017.  The 1^st plaintiff agreed.  Before the meeting, this new client paid HK$1,000 to the 1^st plaintiff as the consultation fee through bank transfer.  On 25 July 2017, when the 1^st plaintiff met this new client, after answering the first question asked, the 1^st plaintiff realized that this new client in fact was the defendant.  The 1^st plaintiff immediately left.  Before leaving the scene, the 1^st plaintiff asked for the defendant’s bank account number so that he could refund the balance to her as she had only asked 1 question.  The defendant refused and insisted to reserve the right to ask the remaining question(s).

(iii) The 1^st plaintiff referred the aforesaid refund matter to the 2^nd plaintiff and asked the 2^nd plaintiff to assist on this.

(iv) On about 3 August 2017, the 1^st plaintiff informed his clients (including the defendant) through mobile phone messages that he would leave Hong Kong shortly, and they might ask the remaining questions or request for refund from the 2^nd plaintiff.

(v) On 10 August 2017, the 1^st plaintiff specifically reminded the defendant that she had unasked fortune-telling question(s).  The defendant then sent 183 messages to the 1^st plaintiff, in which the defendant appeared to be very emotional.

(vi) After all these, there are 2 instances in which some new clients approaching the 1^st plaintiff for fortune-telling services, but the 1^st plaintiff suspects that these so-called new clients in fact are the defendant.

(vii) On 4 September 2017, the 1^st plaintiff was informed by a security guard near the Shop that his former girlfriend had come and asked the security-guard for the 1^st plaintiff’s whereabouts.

(g) September 2017 Incident

(i) On 10 September 2017, when the 1^st plaintiff was in the TKW Residence, the 2^nd plaintiff rushed back to the premises and told the 1^st plaintiff that when she was going to the trash bin, she discovered that the defendant was at the back staircase of the building (“the back staircase”).

(ii) Subsequently, the plaintiffs were told by the security guard in the building that the defendant had stayed in the building for more than an hour on that day.

(iii) On 10 September 2017, the 1^st plaintiff received a mobile phone message from his wife, by which his wife told him that she had again been harassed by the defendant.

(iv) On 13 September 2017, the 1^st plaintiff’s friend complained to the 1^st plaintiff that he had been harassed by the defendant in Tsim Sha Tsui.

(v) Since 2017, the 1^st plaintiff has experienced insomnia, depression and delusion.

4.  The 2^nd plaintiff says the following in her affirmation:-

(a) She is a freelance fortune-teller.

(b) She became acquainted with the 1^st plaintiff in 2011, when she was the 1^st plaintiff’s student in learning fortune-telling. They became friends since then.

(c) In March 2017, she was told by the 1^st plaintiff that he was having relationship problem with the defendant.  The 2^nd plaintiff agreed to share the 1^st plaintiff’s burden by helping the 1^st plaintiff to take phone calls and to provide shelter to the 1^st plaintiff.

(d) In July 2017, since the 2^nd plaintiff has agreed to take forwarded calls from the 1^st plaintiff’s phone, the 2^nd plaintiff received numerous anonymous phone calls looking for the 1^st plaintiff, in which the caller(s) would insist to have face-to-face consultation with the 1^st plaintiff and would ask the 1^st plaintiff to show up in the Shop immediately.  Since the 2^nd plaintiff met the defendant in the Shop on 12 March 2017, the 2^nd plaintiff recognized that some of the calls were made by the defendant.  Some of these calls came late in night.

(e) On 10 September 2017, the 2^nd plaintiff discovered that the defendant was at the back staircase.  The 2^nd plaintiff tried to get the CCTV footage from the management office.  The management office told her that they would not provide the CCTV footage to her unless it was proven that there were court proceedings requiring the same.  A security guard told the 2^nd plaintiff that the CCTV Footage of the lobby area would only be kept for one week.  The 2^nd plaintiff says that this has made the ex parte application for the injunction all the more urgent.

(f) At the very end of her affirmation, the 2^nd plaintiff briefly mentions that she was also told by the security guard that no surveillance cameras were installed in the back staircase area.

5.  In the ex parte hearing, Mr Tony C H Chow, counsel for the plaintiffs, submitted that the plaintiffs’ cause of action was nuisance.

THE EX PARTE HEARING

6.  On 15 September 2017, the plaintiffs issued the writ of summons, filed an ex parte summons, the 1^st plaintiff’s affirmation and the 2^nd plaintiff’s affirmation, and made the ex parte application.  The ex parte application was heard by HH Judge Andrew Li in that afternoon.  I have heard the audio recording of the ex parte hearing.

7.  At the beginning of the ex parte hearing, Mr Chow informed the court that according to his instructions, those instructing him had contacted the defendant the day before and invited the defendant to attend the ex parte hearing.  The defendant declined.  The defendant also expressed that she was unwilling to accept service of the documents concerning the ex parte application.

8.  No skeleton submissions was provided to the ex parte judge.  Mr Chow told the court that due to the urgency of the matter, there was no sufficient time for the preparation of a skeleton.

9.  I have to point out that the legal representatives representing the applicant in an ex parte application for an injunction has the obligation to provide a skeleton submissions to assist the court.  In fact, such a requirement is set out in PD11.1 (applicable to the proceedings in the District Court, see PD27, para 30), which provides:-

“27. The application should be accompanied by a skeleton argument setting out precisely and succinctly how it is said that the case meets the requirements for the Order sought.

28. Where it is claimed that there are any exceptional circumstances justifying the interim relief being sought, those circumstances should be specified.

29. The skeleton argument should also specify the relevant passages in any affidavits and documentary evidence being relied upon.

30. The skeleton argument lodged with the Court must be served on the opposite party (including where the hearing is ex parte on notice) together with the Order and evidence.”

10.  I can understand that if the matter is so urgent and the legal representatives have to rush to the court to make the ex parte application within a very short period of time after getting instructions (say 1 or 2 hours), the legal representatives may not have time to prepare a skeleton submissions.  Subject to this exception, all ex parte applications for injunctive relief should be accompanied by a skeleton submissions.  The plaintiffs’ application certainly does not fall within the exception.  The plaintiffs have given notice of the application to the defendant on 14 September 2017, that means the plaintiffs’ legal representatives were preparing the application at least on 14 September 2017.  I do not accept that a brief skeleton cannot be prepared in one day.

11.  In the ex parte hearing, the plaintiffs succeeded in persuading the court to grant them the injunction.  The effect of the injunction is as follows:-

(a) prohibiting the defendant from threatening or intimidating or harassing or disturbing the 1^st plaintiff and the 2^nd plaintiff and the respective family members, friends, and clients of the 1^st plaintiff and the 2^nd plaintiff, howsoever and wheresoever or otherwise, in particular at or within 500 metres of the vicinity of the TKO Residence and at or within 500 metres of the vicinity of the TKW Residence, by way of telephone, instant messages, mail, fax, email, internet, in person, or by whatever means; and

(b) prohibiting the defendant from entering, trespassing upon or creating any disturbance, nuisance, annoyance or disruption at or within 500 metres of the vicinity of the TKO Residence and at or within 500 metres of the vicinity of the TKW Residence.

12.  The ex parte judge told the plaintiffs that the return date could be either 21 September 2017 or 6 October 2017.  Mr Chow, after taking instructions, requested the court to fix the return date on 6 October 2017, for the plaintiffs’ solicitors would need time to serve the papers on the defendant, and there might not be sufficient time for service if the return date was 21 September 2017.  The court acceded to the request and fix the return date on 6 October 2017.

EVENTS AFTER THE EX PARTE HEARING

13.  On 18 September 2017, the plaintiffs filed the summons.

14.  On 20 September 2017, the plaintiffs obtained a sealed copy of the injunction.

15.  In respect of the service of the documents for the preparation of the inter partes hearing, the plaintiffs’ solicitors have filed an affirmation of Lam Chi Mun on 3 October 2017, in which the process server says:-

(a) He attempted to serve all the documents (including the writ of summons herein) by going to a residential building in Lai Chi Kok at about 4 pm on 30 September 2017 to look for the defendant for the purpose of delivering the documents to her.  He was stopped by a security officer at the lobby of the building.  The security officer contacted the defendant by phone, who was living in a unit in the building.  The security officer then told the process server that the defendant was unwilling to accept the documents.  The process server then left.

(b) The defendant is evading service of the documents.

(c) The process server mentions that “… I verily believe that the Defendant will receive the Injunction Order Documents through the Post Office by registered post and by ordinary post to her residential address …”

16.  It is pertinent to note that in his affirmation, the process server did not say that he left any document in the lobby or insert any document through or into the letter box for the defendant’s unit.  Further, while the process server mentioned service by post, he has never said when the documents were sent out by post.  He has also not mentioned that the documents have not been returned to the plaintiffs’ solicitors through the post undelivered to the addressee.

17.  On 3 October 2017, Mr Chow provided this court a skeleton submissions for the hearing of the summons.  In that skeleton, Mr Chow submits that since there is no change of circumstances, the injunction should be continued.  No authority is referred to in that skeleton and no authority is provided to the court together with that skeleton.

18.  With respect to Mr Chow, the matter is not so simple.  In the inter partes hearing, the court has the duty to review the injunction application to see whether the injunction was correctly granted in the first place, and to consider whether the injunction should be continued in the light of the further evidence and submissions received in the inter partes hearing.

ANY SERIOUS QUESTION TO BE TRIED?

19.  An applicant seeking an interlocutory injunction must show that there is a serious question to be tried, which is not a very steep hurdle.  As said by DHCJ G Lam SC (as he then was) in Hong Da Development & Investment Holdings Co Ltd v China Aoyuan Property Group Ltd (HCA 1377/2011, 19 December 2011):-

“86. I remind myself that the test of serious issue to be tried is “not a very steep hurdle” (Re Billion Shipping Ltd [2003] 2 HKLRD 674 per Chu J at para 28) and that so long as there is a serious issue it matters not whether the court thinks that the plaintiff’s chances of success at trial are 90% or 20% (Alfred Dunhill Ltd v Sunoptic SA [1979] FSR 337 at 373 per Megaw LJ).”

20.  Although a serious question to be tried is not a very steep hurdle, the applicant has to show the existence of such a question.  In my view, if evening assuming all the factual matters suggested by the applicant are true, the applicant still does not have an actionable cause of action against the respondent, the applicant would have failed to show a serious question to be tried.

Nuisance

21.  The plaintiffs are relying upon nuisance as the cause of action. Unfortunately, no authority has been cited in the ex parte hearing and in this hearing as to what constitutes nuisance.  It is certainly not difficult to find such authorities, and I have provided the authorities to the plaintiffs in this hearing.

22.  In Clerk & Lindsell on Torts (21st Edition), the learned authors said:-

“20-01 The essence of nuisance is a condition or activity which unduly interferes with the use of enjoyment of land. …… Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of: (a) a right belonging to him as a member of the public, when it is a public nuisance; or (b) his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when it is a private nuisance.

20-02 …… nuisance is the infringement of the claimant’s interest in property without direct entry by the defendant, and generally actionable only on proof of special damage ……” (Emphasis added)

23.  In Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, Anthony Chan J. said:-

“48. Private nuisance is defined in Winfield and Jolowicz on Tort, 18th edn, p 712 as:

“…unlawful interference with a person’s use or enjoyment of 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 the land.””

49. I agree with Mr Luk that the incessant phone calls made to Lau’s offices and home and the splashing of paint at his home amounted to interference with the enjoyment of those premises by Lau. However, I must reject this cause of action because it has not been demonstrated that Lau has any or any sufficient interest in those premises.” (Emphasis added)

24.  The facts in Lau Tat Wai case are similar to the facts suggested by the plaintiffs here, and the Lau Tat Wai case certainly serves as a valuable guidance in the consideration of this case.

25.  The purpose of the injunction sought by the plaintiffs is to protect their enjoyment of the TKO Residence and the TKW Residence.  So the nuisance being relied upon by the plaintiffs as the cause of action must be private nuisance and not public nuisance.  Accordingly, in order to show that there is a serious question to be tried by reason of nuisance, the plaintiffs have to show that their interest in the TKO Residence and the TKW Residence have been interfered with by the defendant’s acts.

26.  In my judgment:-

(a) While the TKO Residence is the residence of the 1^st plaintiff’s family, there is no evidence showing that the 1^st plaintiff himself has any interest in the TKO Residence.

(b) Obviously, the 2^nd plaintiff has no interest in the TKO Residence.

(c) The 1^st plaintiff is merely residing in the TKW Residence as a temporary shelter.  He has no interest in the TKW Residence.

(d) Although the 2^nd plaintiff lives in the TKW Residence as her home, there is no evidence showing that the 2^nd plaintiff herself has any interest in the TKW Residence.

27.  Accordingly, even assuming that all the factual matters suggested by the plaintiffs are true, the plaintiffs are still not able to rely upon nuisance to found a case against the defendant.

28.  I further observe that if the plaintiffs really rely upon nuisance as a cause of action, they may have to address the court as to whether ss 35, 36 and 52(1)(c) of the District Court Ordinance would have any relevance, as their claim would involve interest in land.

Harassment

29.  The tort of harassment has been recognized in the Lau Tat Wai case as part of the common law in Hong Kong.  According to that case, the parameters of this tort are as follows:-

(a) First, there is 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.

(b) Second, a mental element involving the lower threshold of recklessness, and not intention on the part of the wrongdoer as to whether his act would cause injury to the victim.

(c) Third, damage to the victim and the wrongdoer must take his victim as he found him.  Anxiety caused by harassment would suffice, as would financial loss.

30.  Bearing in mind that a serious question to be tried is not a very steep hurdle, having considered the evidence adduced by the plaintiffs, I am satisfied that the 1^st plaintiff has a serious question to be tried in his case against the defendant by reason of the tort of harassment set out above.

31.  However, I am not satisfied that the 2^nd plaintiff has a serious question to be tried in her case against the defendant.

(a) In respect of the phone calls made by the defendant in July 2017, those phone calls were not targeting the 2^nd plaintiff.  In fact, all those phone calls were made by the defendant to the 1^st plaintiff. The 2^nd plaintiff picked up these phone calls because the 1^st plaintiff had forwarded the phone calls to the 2^nd plaintiff.  In these circumstances, in my view, it cannot be said that the defendant knows or ought to know that these phone calls have caused worry, emotional distress or annoyance to the 2^nd plaintiff.

(b) In respect of the defendant’s appearance at the back staircase on 10 September 2017, this is a single incident.  Similar incident has not happened. Accordingly, there is no conduct by the defendant which is sufficiently repetitive in nature insofar as the TKW Residence is concerned.

Conclusion on serious question to be tried

32.  By reason of the above, I am of the view that only the 1^st plaintiff has demonstrated a serious question to be tried.  As a result, the 2^nd plaintiff should not be entitled to have the injunction in the first place, and the 2^nd plaintiff cannot have an order continuing the injunction.

MATERIAL NON-DISCLOSURE

33.  It is trite that an applicant seeking an ex parte injunction has the obligation of making full and frank disclosure in the ex parte hearing.  A material non-disclosure may lead to the discharge of the injunction.  The principles have been summarized in a recent decision by Recorder Linda Chan SC in Shanghai Liyou Investment Management Ltd. v Ningxia Zhongyingcashmere International Croup Co Ltd and Others (HCMP 3423/2015, 20 May 2016):-

“45. It is well settled that in an ex parte application, the applicant has the duty to make full and frank disclosure of all the fact material to the application, the materiality of the fact is to be decided by the court and not by the assessment of the applicant or his legal advisers. The applicant must make proper inquiries before making the application, as the duty of disclosure applies not only to material facts known to the applicant but also to additional facts which he would have known if he had made such inquiries. If material non‑disclosure is established the court will be astute to ensure that a plaintiff who obtains an ex parte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty (Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at 1356G–1357C, per Ralph Gibson LJ).

46. Further, although the court has jurisdiction to re‑grant the injunction, it should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure. The court should assess the degree and extent of the culpability with regard to non‑disclosure and the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court (Excel Courage Holdings Ltd v Wong Sin Lai [2014] 3 HKLRD 642 at §§56 – 58, per Kwan JA).” (Emphasis added)

34.  The duty of making full and frank disclosure does not only cover matters of fact but also covers matters of law.  In East Asia Satellite Television (Holdings) Ltd v New Cotai LLC [2011] 3 HKLRD 734, per Tang ACJHC (as he then was):-

“82. As Mr Strachan submitted the duty of disclosure extends to matters of law. In Memory Corp Plc v Sidhu (No 2) [2000] 1 WLR 1443, 1460, Mummery LJ said the duty to disclose encompassed "significant factual, legal and procedural aspects of the case". Inadvertent (innocent) non-disclosure may well give rise to the ex parte order being discharged: see, for example, Securities and Futures Commission v A [2008] 1 HKC 89, para.41. I have no doubt that the decision to set aside leave fell within the wide discretion of the learned Judge and there is no basis upon which we can interfere with his exercise of discretion.”

35.  Further, the applicant has the duty to bring to the court’s attention any points that could have been made by the respondent, even if not yet made, at the time of the ex parte application provided that: (a) the point is one that the respondent would reasonably be expected to raise in due course; and (b) the point is not one that can be dismissed as without substance or importance.  See New Asia Energy Ltd v Concord Oil (Hong Kong) Ltd [2000] 2 HKC 681.

1^st material non-disclosure – nuisance requiring an interest in land

36.  It is unfortunate that counsel has not provided any assistance to the ex parte judge on the law of nuisance in the ex parte hearing.  There are many textbooks and cases discussing nuisance, and Clerk & Lindsell on Torts (21st Edition) and the Lau Tat Wai case certainly are not materials which can hardly be found.  With respect to Mr Chow, I am of the view that authorities on the law of nuisance are mattes which the plaintiffs could have found by reasonable diligence before the ex parte hearing.  Had the elements of nuisance been pointed out to the ex parte judge, the learned judge certainly would have had considered whether evidence produced by the plaintiffs could justify a claim for the injunction by solely relying upon nuisance as the cause of action.

37.  Having considered the matter for some time, I regrettably come to the conclusion that the plaintiffs have failed to make full and frank disclosure in the ex parte hearing by not addressing the court on the elements of nuisance.

2^nd material non-disclosure – facts in support of the binding-over order as found by the magistrate’s court

38.  In his affirmation, the 1^st plaintiff mentioned the incident inside a taxi on 19 July 2017, he was charged with common assault and brought to the Kwun Tong Magistracy on 21 July 2017, and the case was dealt with by the binding-over order.  Mr Chow also mentioned these to the court in the ex parte hearing.

39.  However, the plaintiffs have failed to mention to the ex parte judge that the binding-over order was made on the basis of the facts admitted by the 1^st plaintiff in the magistrate’s court or the facts found by the magistrate.  The plaintiffs have also failed to reveal those facts to the ex parte judge.  No doubt those facts are within the 1^st plaintiff’s knowledge.  No doubt those facts are material evidence, as they would support or contradict what the 1^st plaintiff has said in his affirmation in respect of the incident happened on 19 July 2017.

40.  In my judgment, failing to reveal the facts which are the basis of the binding-over order to the ex parte judge is a material non-disclosure.

3^rd material non-disclosure – matters concerning the video footage

41.  The plaintiffs say that the ex parte application is necessary because of urgency.  By 15 September 2017, the March 2017 Incident, the July 2017 Incident and the August 2017 Incident mentioned in the 1^st plaintiff’s affirmation have occurred some time ago.  Obviously, these incidents would not be sufficient in justifying the urgency claimed by the plaintiffs.  The most important incident in relation to urgency is the incident occurred on 10 September 2017 in the back staircase area.

42.  In her affirmation, the 2^nd plaintiff painted the picture that there was sufficient urgency justifying the ex parte application because the video footage would only be kept by the management office of the building for one week.  However, it was subtly mentioned that the video footage which would only be kept for one week was the video footage of the lobby area of the building, and there was no surveillance camera covering the back staircase area.  In the circumstances, there are several points in favour of the defendant:-

(a) There is no allegation, let alone evidence, that the defendant has ever appeared in the lobby of the building in which the TKW Residence is situated on 10 September 2017.  Accordingly, the video footage of the lobby area has no relevance at all.

(b) There cannot be any video footage concerning the back staircase area.

(c) Accordingly, the video footage mentioned by the 2^nd plaintiff in her affirmation cannot be a reason supporting the plaintiffs’ application for the injunction being made on an ex parte basis.

(d) That being the case, viewing the plaintiffs’ case as a whole, there may not be sufficient evidence justifying the urgency of the ex parte application.

43.  Counsel for the plaintiffs has not drawn the court’s attention to the aforesaid points in the ex parte hearing.  These points are with substance.  In my view, failing to draw the ex parte judge’s attention to these points constitutes a material non-disclosure.

4^th material non-disclosure – the plaintiffs’ financial ability

44.  In an application for an ex parte injunction, the applicant’s financial ability is a matter to be considered by the court.  The relevant principles have been summarized by DHCJ Poon (as he then was) in Cheung Kam Wah v Cheung Hon Wah and Others (HCA 1208/2003, 24 February 2004, affirmed in CACV 53/2004, 11 January 2005):-

“27. The law in this area is well established. The relevant principles may be summarised as follows :

(1) The duty of an applicant for ex parte relief to make full and frank disclosure of his financial ability to honour his cross-undertaking as to damages is part and partial of his general duty to make full and frank disclosure of all matters relevant to the court's weighing operation whether or not to grant the relief.

(2) In general, it is strongly advisable for this matter to be expressly dealt with in the evidence in support of the ex parte application.

(3) When a plaintiff simply gives a cross-undertaking and says nothing more, the court will take the plaintiff to have impliedly represented that his financial position allows him to make good his undertaking when called upon to do so : Manor Electronics Ltd v Dickson [1988] PRC 618, per Scott J at p.623, followed by the Court of Appeal in New Asia Energy v Concord Oil (Hong Kong) Ltd [2000] 1 HKC 681.

(4) If, however, the plaintiff's financial position is such that, viewed fairly, it may be said to raise realistic doubts as to his ability to honour the cross-undertaking, it becomes incumbent upon the plaintiff to make full and frank disclosure of his financial position to the ex parte judge so as to permit the judge to determine for himself the correct order to make in the light of such disclosures. The judge in such cases has various options. He may consider it proper to refuse the injunction altogether. Or, he may decide to require some degree of fortification of the cross-undertaking as a condition for the grant of the injunction. Alternatively, he may simply decide to grant the injunction against the cross-undertaking notwithstanding the risk that it may not be honoured or fully honoured if called upon. It is however crucial that all the relevant material be placed before the judge so that he can make the decision for himself : Lock International plc v Beswick [1989] 1 WLR 1268 at p.1279C, applied in Wah Nam Holdings Co Ltd v Excel Noble Development Ltd [2000] 3 HKC 118 at p.129C-F.

(5) If the facts were such that the plaintiff came under such a duty to make disclosure and he had failed to do so, the injunction is normally discharged without going into the merits : Manor Electronics Ltd v Dickson [1988] RPC 618 at p.624.

(6) It is not open to the plaintiff to argue that the inter partes judge should have undertaken an assessment of the merits of the plaintiff's case with a view to absolving him from providing an undertaking or from the consequences of any non-disclosure, or with a view to assessing the likelihood of the undertaking being called up. Such a contention turns the principle on its head. It is plainly inappropriate to try to determine the merits at the interlocutory stage when the evidence has not been fully developed, discovery has not yet occurred and the legal advisers are not fully instructed on the merits of the case, making it inevitable that there will be gaps in the affidavits. The court is only concerned at that stage in trying to determine how the status quo can most fairly be preserved pending trial: Wah Nam Holdings Co Ltd v Excel Noble Development Ltd [2000] 3 HKC 118 at p.126D-G.

(7) Nor does it avail the plaintiff who has failed in such a duty of disclosure to contend that his non-disclosure was inadvertent; or that if the ex parte judge had been told of the financial difficulties, he would nonetheless have granted the ex parte injunction; or that from a close analysis and calculation of his actual worth that he probably could meet any potential liability; or that he should be excused the non-disclosure because the ex parte order has brone out, showing the defendant in bad light : Wah Nam Holdings Co. Ltd v. Excel Noble Development Ltd [2000] 3 HKC 118 at pp.129F-130D.”

45.  These principles have not been mentioned to the court during the ex parte hearing.

46.  The 1^st plaintiff and the 2^nd plaintiff have together provided an undertaking as to damages in the ex parte hearing. However, it is pertinent to note that:-

(a) The 1^st plaintiff says that he is a fortune-teller.  However, he does not disclose his income as a fortune-teller.  Further, he has wound up his business in the Shop in August 2017 and his business was adversely affected as a result.  Nothing concerning the 1^st plaintiff’s financial ability is revealed in his affirmation.  In my view, there is reason to query whether the 1^st plaintiff would be financially able to honour the undertaking if being called upon to do so.

(b) The 2^nd plaintiff says that she is a freelance fortune-teller but does not disclose her income.  There is nothing concerning her financial ability in her affirmation.  I am of the view that there is reason to doubt whether the 2^nd plaintiff would be financially able to honour the undertaking if being called upon to do so.

47.  In my judgment, in the circumstances described above, the 1^st plaintiff and the 2^nd plaintiff have the duty to disclose their respective financial situations in the ex parte hearing so that the court may consider what order should be made in the light of their financial situation.  They have failed to discharge that duty.  This is another material non-disclosure.

IMPROPER EX PARTE APPLICATION

48.  An ex parte application for an injunction can only be made if there is sufficient urgency or secrecy justifying the application.  The principles have recently been reiterated by Recorder Linda Chan SC in Shanghai Liyou Investment Management Ltd:-

“35. It is well established that ex parte application without notice should only be made where either the delay would cause injustice to the applicant or the defendant would take action which may nullify the effect of the injunction (Ho Tak Eng t/a Hung Man Interior Design Co v Fame Brilliant Ltd [2006] 1 HKLRD 34, §8 per Rogers VP).

36. Mr Coleman relies on the principles summarised in Hong Kong Civil Procedure 2016, Vol 1, at §29/1/50 as follows:

“The starting‑point is that applications for interlocutory injunctions should be made inter partes after the commencement of proceedings. It is contrary to the principles of natural justice that any judicial order adversely affecting a party’s interest should be made without the party being given a reasonable opportunity of being heard. Derogations are only permitted in certain limited and exceptional circumstances, the most obvious of which is a situation which concerns matters of such extreme urgency that there is no time to warn the defendant of what is proposed, or where the purpose of the injunction will or may well be frustrated if the defendant is informed of what is proposed, or where the defendant simply cannot be found. The exceptional nature of the circumstances for an ex parte application must be stressed. (TRP Ltd v Thorley, (unrep., July 13, 1993, CA); SNE Engineering Co Ltd v Chim Kee Machinery Co Ltd [2013] 1 H.K.L.R.D. 410.) Order 29, rr.1(2) and 1(3) make it clear that, however, in cases of urgency, the plaintiff may make the application ex parte on affidavit, even before the issue of proceedings. Such an ex parte injunction was set aside for failing to demonstrate the need for urgency in Luck Continent Ltd v Leonora Yung (unrep., CACV 42/2010, [2010] H.K.E.C. 1660). See also Yifung Developments Ltd v Liu Chi Keung Ricky [2014] 3 H.K.L.R.D. 483. …”

37. The above principles have repeatedly been emphasised by the court as a reminder to the parties and the practitioners that ex parte application should only be made when it can be justified in the limited and exceptional circumstances.  See TRP Ltd v Thorley, 13 July 1993, Lexis transcripts, pp 2-3, per Hoffmann LJ (as he then was), pp 6-7, per Sir Thomas Bingham MR; Seapower Resources International Limited & ors v Lau Pak Shing, HCA 10715/1993, §§15-18, per Rogers J (as he then was); O’Farrell v O’Farrell [2012] EWHC 123, §§64, 66-67).

38. In Luck Continent Ltd v Leonora Yung & ors, CACV 42/2010, a case concerning whether proper notice should have been given by the plaintiff of the ex parte application, Rogers VP held that the plaintiff had been aware of a special general meeting for some time but deliberately waited until the last possible minute to send a notice to the defendants informing them of the application, knowing that it would have been impossible for the defendants to attend the hearing.  The ex parte injunction was set aside on this ground alone.”

49.  According to the plaintiffs, notice of the ex parte application was given to the defendant on 14 September 2017, so the application was not made on the ground of secrecy but on the ground of urgency.

50.  I have also considered the wife’s complaint made to the 1^st plaintiff on 10 September 2017 and the friend’s complaint made to the 1^st plaintiff on 13 September 2017.  In my view, these complaints do not constitute sufficient reason justifying the ex parte application.  There is no reason explaining why the matter is so urgent in the sense that the 1^st plaintiff cannot apply for the injunction by an inter partes summons but must proceed by an ex parte application.

51.  By reason of the aforesaid and by reason of the matters set out in paragraphs 41 and 42 above, I am not satisfied that there is sufficient urgency justifying the ex parte application.

52.  The lack of urgency is also proved by the fact that the plaintiffs only attempted to serve the injunction on the defendant on 30 September 2017, ie more than 2 weeks after obtaining the same.  If there is any real urgency in the matter, the plaintiffs would have tried to serve the injunction on the defendant, or at least to give notice of the injunction to the defendant, very soon after the injunction hearing and would not wait for more than 2 weeks.

53.  I am aware of the plaintiffs’ saying that notice of the ex parte application was given to the defendant on 14 September 2017, ie one day before the ex parte hearing.  Notwithstanding this, the application made by the plaintiffs on 15 September 2017 is still an ex parte application, and the application can only be justified if there is sufficient urgency.

54.  In my judgment, there is no sufficient urgency justifying the ex parte application, and the ex parte application was improperly made.

NO VALID SERVICE OF THE INTER PARTES DOCUMENTS

55.  I have to also mention that based upon the evidence produced by the plaintiffs, the plaintiffs have not yet validly served the inter partes documents on the defendant, including the writ of summons.  The plaintiffs say that the defendant is evading service.  Even if that is the case, that does not mean that the plaintiffs have no need to serve the documents on the defendant. If and when necessary, the plaintiffs may and should apply for an order for substituted service promptly.

56.  Before validly serving the inter partes documents on the defendant, it would not be possible for the plaintiffs to get an order in terms of the summons.

NO RE-GRANT OF THE INJUNCTION

57.  By reason of the aforesaid, the injunction cannot be continued and must be discharged.  I have considered whether I should re-grant the injunction after the discharge.  In my view, the injunction should not be re-granted.

58.  Insofar as the 2^nd plaintiff is concerned, since there is no serious question to be tried, there should be no re-grant of the injunction.

59.  In respect of the 1^st plaintiff, by reason of the matters set out in paragraphs 33 to 56 above, in particular the material non-disclosure and the improper ex parte application, there should be no re-grant of the injunction.  Material non-disclosure is a serious matter and there are several material non-disclosures by the plaintiffs.  The cumulative effect of these material non-disclosures is very serious.  Making an ex parte application without sufficient urgency is wrong in principle and must be deterred by the court. 

DISPOSITION

60.  For the reasons above, I conclude that both the 1^st plaintiff and the 2^nd plaintiff are not entitled to have an order to continue the injunction, and the injunction must be discharged.  There is no reason justifying the re-grant of the injunction.  I dismiss the summons and discharge the injunction.

61.  In respect of the costs of this application, although the plaintiffs have failed in obtaining an order to continue the injunction, the defendant has not participated in this application.  As a result, the fair costs order would be no order as to costs.  I so order.

62.  I regret to say that both the ex parte application and this inter partes application have not been properly prepared.  The plaintiffs and their legal advisors have to sit down and think thoroughly what should be the way forward and make a wise decision.  Otherwise, they may end up achieving nothing after incurring much time and costs in the matter.