BHATTI BHUPINDER SINGH v. LEE CHIU TAK AND OTHERS

DCCJ 5119/2018

[2020] HKDC 100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5119 OF 2018

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DECISION

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1.  On 15 November 2019, I granted an interlocutory injunction enjoining until trial or further order the 2^nd and 3^rd named defendants (“the Defendants”) from causing or permitting unreasonable noises to emanate between the hours of 11:00 pm and 7:00 am from Flat B, 31/F, Block 2, Sherwood Court, Kingswood Villa, Tin Shui Wai, a flat owned and occupied by them (“the Decision”). The written reasons for the Decision were given on 20 November 2019 (“the Reasons”).

2.  The plaintiff is the owner of the flat directly below the Defendants’.

3.  By summons dated 4 December 2019, the Defendants now seek leave to appeal against the Decision.

4.  I consider this an appropriate case to follow the guidance given by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] HKCA 759 and deal with this application on paper without oral hearing.

5.  For ease of reference, I will adopt here the same abbreviations used in the Reasons.

Legal principles

6.  Section 63A(2) of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  To amount to a reasonable prospect of success, the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable; while it is insufficient to show that the appeal was “mere arguable” and “not fanciful”: SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (unrep HCMP 288/2011) and Hong Kong Civil Procedure 2020 §59/2A/4.

7.  In the case of the decision of a judge on an application for an interlocutory injunction, the Court of Appeal will generally be slow to interfere and will defer to the judge’s exercise of discretion, but may set aside the judge’s exercise of discretion where it was based on misunderstanding of the law and facts, or where it was so aberrant that no reasonable judge could so decide: Hong Kong Civil Procedure 2020 §29/1/57.

Proposed grounds of appeal

8.  In the draft Notice of Appeal annexed to their summons, the Defendants raise 4 grounds of appeal, succinctly, that this court erred:-

(a) Ground 1: in finding that there is a serious question to be tried;

(b) Ground 2: in granting the injunction where there was serious delay in making the application;

(c) Ground 3: in failing to find that the balance of convenience should tilt in favour of maintaining the status quo; and

(d) Ground 4: in any event in granting the injunction against the 1^st named and 3^rd named defendants.

9.  I will consider the prospect of success of the proposed grounds.

Ground 1

10.  The following passage in Hong Kong Civil Procedure 2020 §29/1/10 is pertinent :

“The prospects of the plaintiff’s success are to be investigated to a limited extent. It is “not a very steep hurdle” (Re Full Billion Shipping Ltd [2003] 2 H.K.L.R.D. 674 at [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 L.J.), cited in Hong Da Development & Investment Holding Co Ltd v China Aoyuan Property Group Ltd (unrep., HCA 1377/2011, [2012] HKEC 110; [2012] HKEC 149 (leave to appeal refused). All that has to be seen is whether he has prospects of success which, in substance and reality, exist. Odds against success do not defeat him, unless those are so long that the plaintiff can have no expectation of success, but only a hope. … If the opposing party seeks to show there is no serious issue to be tried, the threshold is high, as it would be necessary to demonstrate that the claim should be struck out. (Yifung Properties Ltd v Manchester Securities Corp (unrep., CACV 258/2015, [2016] HKEC 1968) at [20].”

11.  There are 3 sub-points made under this ground.

12.  The first sub-point is that the plaintiff in his short affirmation in support did not depose, nor was there any “contemporaneous evidence” like audio recordings showing, that unreasonable noises emanated from Ds’ Flat “at present” (the Defendants’ emphasis).

13.  The plaintiff has all along been acting in person.  In his affirmation affirmed on 8 November 2019 in support of this application, he merely exhibited certain documents and gave brief introductions thereto without deposing to factual matters.  This was dealt with in the beginning of the hearing.  In the circumstances set out in paragraph 4 in the Reasons and to save an adjournment for the plaintiff to file an affirmation deposing to what he has already elaborately set out in his Statement of Claim and Reply, this court asked Mr Lai, then counsel for the Defendants, if the Defendants would be prepared to accept the plaintiff’s pleadings, which were confirmed by signed statements of truth, as the plaintiff’s evidence in support of this application.  Mr Lai, in my view very sensible, indicated that the Defendants would so accept and moreover indicated that indeed the Defendants would like to have the matter heard substantively that day.

14.  In the Statement of Claim, it is expressly stated that “since March 2015 till today, nuisances are at random and at odd hours”[1] (my emphasis).  It is clear from the Statement of Claim that his complaint is that the noises emanated from Ds’ Flat have been at random but continuing.  In the hearing, the plaintiff also confirmed orally that such was his complaint and such nuisances was still continuing.  There was thus supporting evidence from the plaintiff.

15.  As to the Defendants’ complaint that there is no evidence showing that such noise emanated from Ds’ Flat at present.  It is clear that the nature of the interlocutory injunction sought is a quia timet one and it is implicit in the Reasons that I am satisfied that there is a serious question to be tried that such noise had been emanating from Ds’ Flat before and such is likely to be repeated.

16.  Mr Lui, counsel for the Defendants, cited Jack Gordon Leslie Smith & Another v Tam Wing Wah & Another HCA 2638/2004, in which forensic evidence of an acoustics officer was adduced, as an example of the kind of evidence proffered in other cases.  Unsurprisingly, parties in different cases and scenarios may see fit, or are able, to proffer different evidence; and with respect, I do not see its relevance here as it is not contended that there is a general rule of law requiring mandatorily certain type or kind of evidence.

17.  Sub-point 2 is that this court erred in placing reliance and/or undue reliance upon the meeting mentioned in paragraphs 16 and 17 of the Reasons.  In paragraph 12 of Mr Lui’s written submissions and its sub-paragraphs, he embarks upon a critical forensic evaluation of the meeting and how it was inherently improbable that noise has emanated from Ds’ Flat would be heard and identified by occupants of Flats 29B and 32B, and therefore how it is more credible that no such complaint was made by occupiers of those 2 flats.  He then complained that this court erred in drawing an adverse inference against the Defendants.

18.  The easy way to consider the substance of this sub-point is by quoting here all I have said in the Reasons about that meeting:-

“16. The plaintiff said that a meeting was held between representatives of the management office, himself and owners/occupiers of Flat 29B and Flat 32B of the same block, and a District Councilor one Mr Cham to resolve this noise problem.  The plaintiff said that in the meeting owners/occupiers of Flat 29B and Flat 32B orally complained and confirmed that noise has emanated from Ds’ Flat.  In support and to explain why there is a lack of record of the meeting, the plaintiff attached to his Reply a string of emails exchanged in January 2016 wherein he had repeatedly asked the estate management office 8 times for the records of that meeting but was turned down for the reason that “discussion was recorded for internal record only”.

17. In the Amended Defence[2], the defendants averred to this meeting as one “to discuss the plaintiff’s complaints” and attended by “some other neighbours”, but denied owners/occupiers of Flat 29B and 32B made allegations that the defendants “had caused any nuisance”.

18. I would tend to think that the owners/occupiers of Flat 29B and 32B would attend the meeting as their own enjoyment of their flats was affected.”

19.  I have made no such adverse inference against the Defendants as they now assume and then complain against.

20.  Sub-point 3 is that this court erred in placing reliance and/or undue reliance on the 2 Notes set out in paragraph 19 of the Reasons.  The gravamen of this sub-point is that the remarks in these 2 Notes only concern incidents of noise having been emitted from “upstairs” in 2015 and 2016 and during daytime.

21.  Similar point indeed has been made by Mr Lai in the hearing; and I am very mindful and have clearly noted in the Reasons the time and date of the 2 respective visits for which the 2 Notes were made.

22.  This court’s analysis and reliance on the 2 Notes, as set out in the Reasons, was that examining and considering the parties’ respective cases against each other, and the overall circumstances – the plaintiff’s case that the noises were in the form of tapping sound, sound of moving furniture etc (which were the same types of sound mentioned in the remarks of the 2 Notes), the Defendants’ pleaded case denying such noises have ever been emanated from Ds’ Flat at all, whether daytime or night time, and that neither party in their respective elaborated pleadings has ever mentioned any other flat from which noises may have emanated in all the years of the plaintiff’s persistent complaints to various bodies - that this court found the 2 Notes lend credibility to the plaintiff’s version and militate against the Defendants’ version.

23.  In all, I do not think that Ground 1 has any reasonable prospect of success.

Grounds 2 and 3

24.  These 2 proposed grounds can be conveniently dealt with together.  Their gist is that the delay shows there is no or not sufficient irreparable damage or urgency, and when matters are evenly balanced, this court should have preserved the status quo.

25.  As Mr Lui has placed much emphasis on, in my view a somewhat mechanic application of, the “irreparable damage”, “delay” and “status quo” factors, it is timely to be reminded, which is albeit trite, that :-

“It is only after the court has come to the conclusion that damages awarded after the expected trial would be an inadequate remedy that the court is enjoined to look at what is described as the “balance of convenience”. The balance is more fundamental, more weighty, than mere “convenience” and is better described as the “balance of the risk of doing an injustice” (N.W.L. Ltd. V Woods [1979] 3 All E.R. 614 at 625, HL).  The guiding principle is, as Ma J. (as he then was) succinctly put in Music Advance Ltd. v The Incorporated Owners of Argyle Centre Phase I [2010] 2 H.K.L.R.D. 1041, that the court will take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong.” (Hong Kong Civil Procedure 2020 §29/1/14) (my emphasis)

26.  Though the factors advanced by the Defendants need to be considered according to the circumstances of each case, the more fundamental and weighty balancing exercise is the balancing of the risk of doing an injustice.

27.  It is evident that harm and suffering would be caused to the plaintiff by the persistent deprivation of sleep caused by the alleged nuisance during night time.  Equally clear is that damages awarded after the expected trial, say taking place a year from now, would be inadequate to compensate for such deprivation of sleep.  Therefore, there would be a serious risk of injustice to the plaintiff if this court should turn out to be wrong in refusing the injunction in its present terms.

28.  On the contrary, the injunction as granted follows very closely the wording of section 4 of Noise Control Ordinance Cap 400 thereby only enjoining the Defendants from committing acts which are in any event made criminal by that section.  The imposition of any additional burden on the Defendants by means of an injunction in civil jurisdiction carried comparatively much less risk of injustice to the Defendants should this court be wrong in granting it.

29.  In my view, the balance clearly tilted in favour of granting the present injunction.

30.  There is no reasonable prospect of success for these 2 grounds.

Ground 4

31.  In his written submissions, Mr Lui now confines this ground to the 3^rd named defendant and no longer extend it to the 1^st named defendant.  I should however clarify this matter in passing.  In fact, the injunction has never been made against the 1^st named defendant.  I have noted in paragraph 2 of the Reasons that this action was withdrawn as against the 1^st named defendant who had deceased.  The preamble in the sealed order granting the injunction has also defined “the Defendants” as the 2^nd and 3^rd named defendants.  However, upon the Defendants’ complaint through the proposed Notice of Appeal and for the avoidance of doubt, this court pursuant to its inherent power (Hong Kong Civil Procedure §20/11/1) on 9 December 2019 amended paragraph 1 thereof from “The Defendants” to “The 2^nd and 3^rd named defendants”.

32.  By this ground, the Defendants argue that there is no specific allegation that the 3^rd named defendant was the person who caused the nuisance and therefore this court erred in enjoining him also.

33.  It is undisputed that the 3^rd named defendant at all material times has been and presently is an owner and occupier of Ds’ Flat from which (at least there is a serious question to be tried that) unreasonable noises have been emanating.  It is also not disputed that, as owner and occupier, he has a duty not to cause and/or permit such nuisance.

34.  There is no prospect of success for this ground as well.

35.  As there is no reasonable prospect of success nor is it advocated that there is any other reason in the interest of justice that this appeal should be heard, this application for leave is hereby dismissed, and with costs to the plaintiff on nisi basis.