LAI SIU WAI LOUIS v. HO KING YIN EDWIN AND OTHERS

DCCJ4041/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4041 OF 2011

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D E C I S I O N

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1. This is the 1st, 2nd and 3rd defendants’ application to dismiss the plaintiff’s claim. The situation of the 4th defendant has been dealt with.

2. This morning, the defendants’ counsel informed me that the only basis to strike out the statement of claim is Order 18, rule 19 of the Rules of the District Court, on the ground that the statement of claim discloses no reasonable cause of action against the defendants.  According to the statement of claim, the plaintiff is the lawful attorney of Madam 譚翠好, and sues for and on behalf of her against the defendants for the reliefs as prayed for in the prayer of claim for her interest and benefit.

3. At all material times, Madam Tam is the registered owner of all that piece of land registered in the Land Registry as section B of Lot Number 2787 in DD 120 (“the said piece of land”).  There are erected upon the said piece of land various erections/facilities, including but limited to one security room (“the said security room”) and one iron gate (“the said iron gate”), being all fixtures of the said piece of land.  The significance of being fixtures of the said piece of land is that they have become part and parcel of the said piece of land.

4. Golden Years Investment Limited leased from Madam Tam all the erections/facilities, including the said security room and the said iron gate.  On 13 August 2011, the 1st, 2nd and the 3rd defendants, as members of 君逸軒業主委員會 of Queen’s Park, procured to gain possession of the said security room after an incident of intrusion by a third-party trespasser on that day and installed a lock upon the door of the said security room thereafter.  Despite demands and requests on the part of the plaintiff for and on behalf of Madam Tam, the defendants did not return to the plaintiff the key for the lock installed upon the door of the said security room.

5. On 19 August 2011, the plaintiff was informed by the 1st defendant that security guard for Queen’s Park had been engaged for occupation of the said security room and the plaintiff was expelled out of the said piece of land by the security guard engaged for Queen’s Park and the 1st defendant in the name of the said Owners’ Committee.  By virtue of the conduct of the defendants set out under paragraphs 6, 7 and 8 of the statement of claim, the acts amounting to trespass against the properties of Madam Tam, and because of the event set out in paragraph 9 of the statement of claim, Madam Tam and Golden Years have been deprived of the use and possession of the said security room.  Thereafter, Golden Years stopped leasing of the said security room from Madam Tam, who suffered from loss and damages as a result thereof.

6. Despite various demands and requests on the part of the plaintiff for and on behalf of Madam Tam, the defendants have not rectified the trespass act and conduct up to the date of the taking out of the writ.

7. In the prayer of claim, the plaintiff asks for:

(1)  declaration that the defendants have been in wrongful possession of the security room and/or such other erections/facilities erected upon the said piece of land from 13 August 2011 onwards.

8. Now, it is not confining to the incident on 13 August 2011.  It is from 13 August 2011 onwards, so it must include the date of 19 August 2011.  The defendants argue that only the security room in question was involved and the plaintiff may have an action in relation to the said security room.  As for other facilities/erections, there is no cause of action.  I simply do not agree.

9. The said security room and/or such other erections/facilities erected upon the piece of land stated clearly in the prayer indicate that all these security room, other erections/facilities were erected upon the said piece of land and become part and parcel of the land because they are all fixtures.  When on 19 August 2011 the plaintiff was expelled from the piece of land, she was deprived of possession and control of that piece of land, and so she is entitled to relief, and the defendants were in wrongful possession of the said piece of land on which are present the security room and/or such other facilities.

10. So the key of this case is whether the plaintiff was deprived of the possession of the piece of land on which the security room and/or such erections/facilities were erected.  The answer, according to the statement of claim, must be “yes”, and so, the defendants were in wrongful possession of the said security room and/or such other erections/facilities erected upon the piece of land from 13 August onwards.  It is wrong to make a difference or split the security room from other erections/facilities.  The said security room and/or such other erections/facilities must be regarded as (a) whole because they are part and parcel of the said piece of land.

11. The same reasoning applies to paragraph 2 of the prayers of claim.  The defendant cannot succeed in its original striking-out application.  So the plaintiff is entitled to costs.

12. Costs of the striking-out application be to the plaintiff, to be taxed, if not agreed, with certificate for counsel.