SHUM CHUN TUNG v. TO YING LAM AILEEN AND ANOTHER

DCCJ 2785/2022

[2024] HKDC 795

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2785 OF 2022

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DECISION

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Introduction

1.  This is the hearing of an application by the Plaintiff (“P”) for interlocutory injunction against the 2^nd Defendant (“D2”) in the following terms:

“An interlocutory injunction that [D2] by herself, their servant, agents, tenants or otherwise, be restrained from permitting, causing, repeating and/or continuing any noise and vibration or any nuisance of a like kind emanated from [D2]’s premises situate in Unit G on 10^th Floor of Tower 1 of the Seacrest, No 1 Hang Kwai Street, Tuen Mun, New Territories, Hong Kong, interfering with the use, enjoyment and occupation of [P]’s premises situate in Unit G on 9^th Floor of Tower 1 of the Seacrest, No 1 Hang Kwai Street, Tuen Mun, New Territories, Hong Kong, between the hours between 11 p.m. and 7 am, or at any time on a general holiday.”

2.  At the hearing, Mr Chu, counsel for P submitted a draft order of the interlocutory injunction that was being pursued against D2:

“An interlocutory injunction that [D2] by herself, her respective servant, agents, tenants or otherwise, be restrained from permitting, causing, repeating, and/or continuing any excessive noise (ie noise level reaching or exceeding 10dB(A) above the background noise level) and vibration (ie vibration level in the range between 10Hz and 100 Hz which exceeds the criteria of 0.014mm/sec for residential at night) or any nuisance of a like kind emanated from [D2]’s premises situate in Unit G on 10^th Floor of Tower 1 of the Seacrest, No 1, Hang Kwai Street, Tuen Mun, New Territories, Hong Kong, interfering with the use, enjoyment and occupation of [P]’s premises situate in Unit G on 9^th Floor of Tower 1 of Seacrest, No 1. Hang Kwai Street, Tuen Mun, New Territories, Hong Kong, between the hours between 11 pm and 7 am, or at any time on a general holiday.”

The Parties’ Respective Case

3.  P is the registered owner of Unit 9G of Tower 1 of Seacrest, No.1 Hang Kwai Street, Tuen Mun, New Territories (“Unit 9G”).

4.  D2 is the registered owner of Unit 10G, which is directly above Unit 9G.

5.  The occupiers of Unit 10G at the material times were:

(1)  D2’s tenant, Ms Io Hao I (“Ms Io”), from April 2022 to 19 September 2022;

(2)  D2’s tenant, Ms To Ying Lam Aileen (formerly named as the 1^st Defendant, “D1”), from 24 September 2022 to 17 July 2023; and

(3)  D2 from 16 September 2023 onwards.

6.  It is P’s case that:

(1)  Since April 2022, D1 and D2 (collectively, “Ds”) had allegedly caused or permitted disturbing and excessive noise and vibrations to emanate from Unit 10G adversely affecting P’s use, enjoyment and occupation of Unit 9G;

(2)  These noise and vibrations constitute nuisance and a breach of DMC;

(3)  Between April 2022 and January 2023, P filed various complaints with the management office and the police regarding such alleged noises and vibrations. Notwithstanding such complaints, D1 and/or D2 failed to cease and/or take steps to abate the said noises and vibrations;

(4)  P hired an expert, Dr Ng Chung Fai (“Dr Ng”) who prepared an expert report dated 25 August 2022 and a supplemental report dated 23 December 2022 which concluded inter alia that:

(a)  Activities at Unit 10G generated noise and vibration;

(b)  The floor of Unit 10G covered with wooden panel is defective, causing excessive vibration and noise due to normal walking;

(c)  Noise and vibrations were observed to be generated from various activities including running, jumping, sliding chair without rubber cover legs, closing door with heavy force and heavy footsteps on defective floor; and

(d)  There were various noise events during the periods between 13 August 2022 and 14 August 2022 and between 14 August 2022 and 15 August 2022, from 11pm to 7am, which exceeded acceptable levels.

7.  It is D2’s case that:

(1)  Almost all of P’s noise complaints were made between April 2022 and January 2023, when Unit 10G were occupied by Ms Io and D1. As D2 was not in occupation of Unit 10G, he could not have participated in the commission of any nuisance and cannot be held liable for any alleged nuisance;

(2)  After D2 moved into Unit 10G on 16 September 2023, she had not received any complaint from P regarding noise save for one instance on 17 September 2023;

(3)  In any event, any noise events were within reasonable limits; and

(4)  It is denied that D2 had failed to repair the wooden floor of Flat 10G. It is averred that no test or inspections has been conducted by Dr Ng over the wooden floor panels in Unit 10G.

Applicable principles

8.  The applicable principles concerning interlocutory injunctions are trite and are not in dispute. The court would first consider whether there is a serious issue to be tried. If yes, then the court will proceed to consider whether the balance of convenience lies in favour of granting the interlocutory injunction. See Hong Kong Civil Procedure 2024, Vol.1, §29/1/8.

9.  A serious issue to be tried is not a very steep hurdle. 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%. 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 his prospects are so small they lack substance and reality, then he fails; for he can point to no question to be tried which can be called “serious” and no prospects of such success which can be called “real”. See Hong Kong Civil Procedure 2024, Vol.1, §29/1/10.

10.  On the other hand, where 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: see ibid and Pacific Rainbow International Inc v Shenzhen Wolverine Tech Ltd and ors (Unrep), HCA 3023/2016, 2 May 2017, §39(2).

11.  Furthermore, the terms of the injunction order must not be vague, uncertain or too oppressive to the defendant. It was held that if noises referred to in the injunction order can inevitably encapsulate all decibel levels of sounds at any time or the defendant and his family’s lives and their right of enjoyment of the property would be unduly infringed, the court cannot and will not make such an order. See eg Lee Kwai Ying v Pang Wing Fai & Ors [2022] HKDC 1043, §12 and Kwai Chi Wai v Kwan Wing Tat [2022] HKCFI 75, §§3-6.

Analysis and disposition

12.  Having heard the submissions of counsel, applying the above principles to the facts of the present case, I am not satisfied that: (1) there is any need for interlocutory injunction; and in any event, (2) the balance of convenience lies does not lie in favour of the injunction sought. Mr Kwan, counsel for D2, confirmed that it was not his submissions that there is no serious issue to be tried (which as mentioned above is not a very high hurdle), thus the main battleground lied only on the balance of convenience.

Need for interlocutory injunction

13.  In respect of the need for interlocutory injunction, there is only a bare assertion by P (and Mr Chu’s submissions), unsupported by any evidence that if the interlocutory injunction is not granted, the noise and vibrations would continue such that P and his family will continue to suffer from the harm caused by the noise and vibrations which cannot be compensated by an award of damages.

14.  Despite the plea by P that since April 2022 D2 had caused or permitted excessive noise and vibrations to emanate from Unit 10G, I am not satisfied that there is any objective evidence before me that that such excessive noise and vibrations has continued since 4 October 2023.

15.  By way of objective evidence, there is a letter from the management office dated 18 March 2024 (“the Letter”) confirming that it has not received any email from P since 4 October 2023.

16.  Mr Kwan therefore submitted since there has never been any complaints that noise and vibrations emanated from Unit 10G since D2 occupied it, any injunction against D2 is not necessary relying on the decision of The Incorporated Owners of Pearl Gardens Hong Kong & ors v Giles Wong and Shirley Mae Leimomi Wong (Unrep), LDBM 136/2014, 13 November 2015, §16

17.  On the other hand, Mr Chu submitted from the Bar table that whilst P did not complain by email to the management office since October 2023 (because he had given up sending email after earlier spent 1 and a half years complaining), P has made a contemporaneous record, since 16 September 2023, of the noise and vibrations from Unit 10G. Therefore he submitted that it is not correct that the noise and vibrations have not continued since October 2023. He further submitted that if the noise and vibrations did not continue, P would not be pursuing the interlocutory injunction and this action.

18.  According to Mr Chu, due to excessive rounds of evidence, P was not allowed to file a further affirmation (P’s 4^th Affirmation) rebutting D2’s affirmation which contained an assertion that P had not made further complaints about noise nuisance against her since 4 October 2023 by relying on the Letter.

19.  As the matter now stands, there is only the evidence given from the Bar table to which I could hardly attach great weight, not being contained in any affirmation of P.

20.  Moreover, what is now asserted from the Bar table lacks credence when viewed against the following circumstances:

(1)  Previously, P made numerous complaints to the management office in respect of alleged noise and vibrations from Unit 10G and the complaints were recorded more or less contemporaneously by way of emails from P to the management office;

(2)  A reasonable inference to be made is that the complaints to the management office stopped when there were no noise and vibrations from Unit 10G;

(3)  On the other hand, save for reference to correspondence with the management office up to September 2023 regarding complaints about the alleged noise and vibration, in none of the 3 Affirmations filed by P in support of this application, is there any mention by P of having further complained to the management office and/or having made contemporaneous records of the alleged noise and vibrations after that period, which one would expect if that was the case;

(4)  The belated explanation why no further complaints by email or otherwise were made to the management office after October 2023 defies common sense. These proceedings were commenced by P on 21 July 2022. It would be in P’s interest to have an independent and contemporaneous record of his complaints by written correspondence with the management office;

(5)  Any alleged contemporaneous record created by P of noise and vibrations from Unit 10G should be afforded little weight given that it is a self-serving document which cannot be independently verified, and P has never mentioned the existence of such record in his previous affirmations. It is noted by the time P’s 3^rd Affirmation was filed (in March 2024), such record would have been in existence and could have been produced; and

(6)  There is no explanation why Dr Ng was not instructed to take measurements from Unit 10G after October 2023 as objective and independent support for P’s assertion that noise and vibrations continued after D2’s occupation.

21.  Whilst I accept the absence of complaint or contemporaneous record of the noise and vibrations does not necessarily mean no noise and vibrations continued beyond October 2023, but it is a matter that I could take into account in assessing the credibility of the bare assertion of P not made in any filed affirmation but only from the Bar table.

22.  I have also considered whether given Dr Ng’s opinion that from the presence of vibrations (last measured in August 2022) the wooden floor of Flat 10G was defective, and given that there is no suggestion that the wooden floor has been replaced, similar noise and vibrations would be produced by the current occupants of Unit 10G when walking.

23.  Without actual inspection of Unit 10G, it remains a hypothesis of Dr Ng that the wooden floor is defective, which no doubt will be tested in cross-examination at trial. Even taking into account the alleged difficulties in seeking entry into Unit 10G to carry out tests, there is no explanation why P could not have engaged Dr Ng to make measurements for noise and vibrations from inside Flat 9G since D2 occupied Unit 10G to objectively support any assertion the noise and vibrations previously observed continued.

24.  It seems to me there is currently very flimsy evidential basis to find that the alleged noise and vibrations have continued since October 2023.

25.  On balance, I am not satisfied that P has demonstrated any need for the interlocutory injunction sought.

Balance of convenience

26.  In any event, even if it can be established that the noise and vibrations previously complained of will continue unless restrained by the injunction sought, I am not satisfied that the balance of convenience lies in favour of the injunction sought.

27.  Mr Chu has submitted that unless restrained, P and his family would be subject to noise and vibrations, which according to Dr Ng is “excessive”, and the irreparable harm suffered cannot be compensated for damages. On the other hand, he submitted that the injunction sought was not oppressive to D2 who will only need to cease causing the noise and vibrations, which have now been specifically defined, and only for specified periods of time.

28.  When I asked Mr Chu what were the reasonable measures that could be taken by D2 to abate the alleged noise and vibrations, short of replacing the alleged defective floor (which would effectively dispose of the action), whilst allowing D2 to enjoy the use of Flat 10G, he submitted that there were many ways this could be done. He gave, by way of examples, placing a thick mat over the wooden floor and reducing the strength of footstep when walking.

29.  However, I noted that none of these measures was suggested by Dr Ng as being effective to reduce noise and/or vibration. Thus there is a real risk that D2 will be in breach of court order even if the suggested measures submitted by Mr Chu were taken by D2.

30.  I take the view, as submitted by Mr Kwan, if the interlocutory injunction was granted, effectively, D2 would be forced to move out of Unit 10G until trial which, given the current stage of these proceedings, may be another 2 or 3 years from now. Plainly, this would unduly infringe on D2’ life and/or her right of enjoyment of Unit 10G.

31.  Overall, I take the view that the balance of convenience lies in favour of the refusal of the grant.

32.  Even if I were wrong, I am of the view that the factors in favour and against the grant are evenly balanced, and the status quo should be preserved.

33.  Mr Kwan also submitted that even where there is a serious issue to be tried, the relative strength of the party’s case is a highly relevant consideration in assessing the balance of convenience by relying on the case of Liao Chen Toh v Loyal International Enterprises Co Ltd (Unrep) HCA 2302/2014, 20 April 2016 at §36. He made submissions on various difficulties with P’s case. As I am already satisfied that the balance of convenience does not lie in favour of granting the injunction sought even without taking into account the merits, taking heed of the established principle that this court is warned against conducting a mini-trial on affidavits to resolve conflicts of evidence (see ibid at §35), and since this matter will proceed to trial, I will restrain from expressing any views on the relative strength of each party’s case.

34.  For all the above reasons, I would refuse P’s application for interlocutory injunction.

Costs

35.  Parties are agreed that if I refuse P’s application, then P should be ordered to pay for the costs of this application.

36.  I will therefore make a costs order nisi that P should pay to D2 the costs of and occasioned by this application to be summarily assessed by me on paper.

37.  I would further direct:

(1)  Any application for variation of the costs order nisi shall be made within 14 days from the date hereof; and

(2)  If no application for variation is made within 14 days from the date of the handing down of this Decision, P shall submit any objections to D2’s Statement of Costs within 7 days thereof and D2 shall submit any response in reply within 3 days thereof for summary assessment by me on paper.

38.  Lastly, I thank both counsel for their helpful assistance in this matter.