WONG YUNG v. CHAN KWOK HUNG AND ANOTHER

DCCJ 1078/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1078 OF 2014

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DECISION

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INTRODUCTION

1.  The 1^st defendant seeks an order to set aside a regular default judgment entered against him on 22 April 2015.

THE PLAINTIFF’S CLAIM

2.  The plaintiff was the registered owner of Flat 2H, 2^nd floor, No 39 Wai Chi Street, Shek Kip Mei, Kowloon, Hong Kong (“Flat 2H”). The 1^st defendant was the tenant occupying Flat 2A in the same building (“Flat 2A”).  The 2^nd defendant was the registered owner of Flat 2A and the landlord of the 1^st defendant.

3.  The plaintiff claimed the 1^st defendant had kept no less than 8 dogs and 3 cats in Flat 2A since March 2013.  By doing this, the dogs caused excessive and unreasonable intermittent barking and/or noise throughout the day.  Strong, unpleasant and obnoxious odour was emitted from Flat 2A.  For nuisance caused to the plaintiff, he claimed damages against the 1^st and 2^nd defendants.

4.  The 1^st defendant was convicted on his own plea on a summons (“the Summons”) on 17 April 2014 in Shatin Magistracy of keeping animals that makes noise which is a source of annoyance to other person under section 5(3) of the Noise Control Ordinance (Cap 400).

5.  The 2^nd defendant defended his claim, trial date has not yet been fixed.

THE CONDUCT OF THE 1^ST DEFENDANT PRIOR TO THIS APPLICATION

6.  The plaintiff reprimanded the conduct of the 1^st defendant.  The writ of summons was duly served on the 1^st defendant on 17 July 2014.  On failure of filing an acknowledgement of service on time, the 1^st defendant only turned up on 14 October 2014 at the direction hearing of the plaintiff’s summary judgment application.  He indicated he has applied for legal aid on 13 October 2014.  At the hearing, the 1^st defendant claimed he had not received the writ of summons.  The learned judge directed the writ of summons to be served at the hearing and had directed the 1^st defendant to file the acknowledgment of service within 7 days thereof.

7.  No acknowledgment of service was filed.  In or about November 2014, the 1^st defendant moved out from Flat 2A.  The 1^st defendant’s application for legal aid was refused on 16 December 2014.

8.  The plaintiff abandoned the application for injunction and had obtained this interlocutory judgment against the 1^st defendant by default on 22 April 2015.

9.  The 1^st defendant obtained approval of legal aid on 28 December 2015.  His instructing solicitors took out this application on 12 May 2016, 13 months from the default judgment.

THE GROUNDS OF THE 1^ST DEFENDANT

10.  Mr Hui, counsel for the 1^st defendant submitted, the 1^st defendant has a real prospect of success in his defence.  He is able to adduce 5 witness statements to demonstrate the alleged nuisance did not exist.  The 1^st defendant further said the conviction he has had was not conclusive on the issue of liability.  He further submitted the criminal conviction of the 1^st defendant was not conclusive on the issue of liability in civil proceedings.

LEGAL PRINCIPLES

11.  Pursuant to Order 13 rule 9 of the Rules of District Court, Cap 336H, the court has a general power to set aside a regular judgment.  The relevant conditions are well laid down in paragraph 13/9/13 of the Hong Kong Civil Procedure,

“On an application to set aside a default judgment, the major consideration is whether the defendant has shown a defence on the merits which the court should pay heed, not as a rule of law, but as a matter of common sense, since there is no point to set aside a judgment if the defendant has no defence, and because, if the defendant can show merits the court will not prima facie desire to let a judgment pass on which there as been no proper adjudication (per Lord Wright in Evans v. Bartlam [1937] A.C. 473, HL at 489).

This is not to say that a defendant who is able to demonstrate a defence which has a real prospect of success has an automatic entitlement to have the default judgment set aside.  In exercising the discretion under this rule, the court has regard to all relevant considerations.  What will be relevant as a factor in any particular case will depend on the individual facts of that case.  The usual factor is why the default occurred; the defendant’s conduct after he had notice of the proceedings; an explanation for the time taken where there has been delay in making the application; and in any prejudice that would be caused to the plaintiff or to third parties if judgment were to be set aside.  There other relevant factors will then have to be weighed against dominant factor of the merits in order to see where the justice of the case lies. (Vann v. Awford (1986) 83 L.S. Gaz. 1725; the Times, April 23, 1986, CA; Shocked v. Goldsmidt [1998] 1 All E.R. 372 at 379f; Premier Fashion Wears Ltd & Another v. Chow Cheuk Man & Another [1994] 1 H.K.L.R. 377 at 380(6) – (12); (35) – (42); 382(26) – (32); Young Bing Ching (dec’d) v. Chow Yung Fong & Another [2001] 2 H.K.L.R.D. 394, CA)”

ANALYSIS

The criminal conviction

12.  The effect of a criminal conviction in a civil proceeding is that the burden is shifted to the defendant to demonstrate he did not commit the act he was convicted.  (See Lau Ka Po v Man Cheuk Ming (unrep, HCPI 584/1996, 10 March 1997).  Mr Hui submitted, a criminal conviction is not conclusive on the issue of liability in civil proceedings. In China Everbright –IHD Pacific Ltd v Ch’ng Poh (unrep, CACV 513/2001, 19 February 2002).  The trial judge is fully entitled to decide what weight is to be attached to the conviction.  In Stupple v Royal Insurance Co [1971] 1 QB 50 (applied in Lau Ka Po and China Everbright), Lord Denning had the following observation on how the civil court should approach a criminal conviction on a defendant’s guilty plea,

“In any case, what weight is to be given to the criminal conviction? This must depend on the circumstances. Take a plea of guilty. Sometimes a defendant pleads guilty in error; or a minor offence he may plead guilty to save time and expense, or to avoid some embarrassing fact coming out. Afterwards, in the civil action, he can, I think, explain how he came to plead guilty.

Take next a case in the magistrates’ court when a man is convicted and bound over or fined a trifling sum, but had good ground of appeal, and he did not exercise it because it was not worth while. Can he not explain this in civil court? I think he can ......

In my opinion, therefore, the weight to be given to a previous conviction is essentially for the judge at the civil trial. Just as he has to evaluate the oral evidence of a witness, so he should evaluate the probative force of a conviction.” (emphasis added)

13.  Pursuant to section 62 of the Evidence Ordinance, Cap 8, the 1^st defendant shall be taken to have committed that offence, unless contrary is proved.  The 1^st defendant has to bear the burden of proof that no nuisance was caused to the plaintiff.  The 1^st defendant pleaded not guilty at the mention hearing of the Summons.  He changed plea by informing the trial magistrate prior to the trial hearing of the Summons.  The 1^st defendant claimed he was frightened at the hearing and had wished to dispose of the matter as soon as possible.  He had an impression that by pleading guilty to the said charge was “the cheapest and least troublesome way” to resolve the matter.  At the mention hearing of the summons, he felt the magistrate was angry with him and was left with no other choice to change his plea.  He was under high pressure and had chosen to plead guilty to the said summons.  Having said that, his explanation is contradicted by the record of transcript of the hearing when the 1^st defendant had pleaded guilty.  There was no indication that the magistrate was agitated, but rather, the magistrate took some time to clarify the Summons with the 1^st defendant.

14.  I am not persuaded by the 1^st defendant’s explanation in entering a plea of guilty of the Summons.  The alleged pressure was self – induced.  There was ample time for the 1^st defendant to consider his plea prior to both (i) the mention hearing of the said summons as well as (ii) the trial hearing.  The 1^st defendant took the initiative to inform the trial magistrate by letter prior to the actual trial hearing.  The 1^st defendant must have duly considered the Summons itself and its consequence.  After all, there was no application to change his plea or appeal after he has been convicted.

15.  Nevertheless, the 1^st defendant has had was the evidence of the nuisance was never tested at the trial of the Summons.  In Lau Ka Po, the burden of proof is shifted to the 1^st defendant to demonstrate he did not commit the act that he has been convicted; and in Stupple, the judge has to evaluate the evidence of a witness, and the probative force of the conviction.  Should the 1^st defendant had pleaded not guilty and was convicted after trial, the probative value of that conviction would be higher.  In this case, be it his explanation was unconvincing, the 1^st defendant deserved an opportunity to elicit oral evidence from witnesses of the nuisance for the trial judge in the plaintiff’s action for evaluation.

16.  I also accept Mr Hui’s submission that the conviction itself may only be relied on in proving nuisance, the plaintiff still bears the burden of proving the claims of breach of negligence.  The plaintiff claims nuisance of excessive noise and unpleasant odour, the plaintiff has the burden of prove of the latter as well.  In this regard, the conviction itself cannot be conclusive because it only relates to part of the plaintiff’s claim.

MERITS OF THE 1^ST DEFENDANT’S DEFENCE

17.  The dominant factor of this application is whether the 1^st defendant is able to demonstrate a meritorious defence with real prospect of success.  In defending the plaintiff’s claim on nuisance, one would revisit the classic definition in Clerk & Lindsell on Torts, 21^st ed, §20-10,

“Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstance of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that those effects are nuisance or no nuisance is one of fact.”

18.  The principle was further elaborated in Hu Wei Hsin v Ma Hung Wing & others (unrep, DCCJ 273/2011, 3 June 2011).  This case concerns the burning of incense in common area of a multi-storey building, His Honour Judge Lok (as he then was) deduced the following principles,

(i)     There is no precise or universal formula for determining whether there is an actionable nuisance, and it is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance.

(ii)    Everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours.

(iii)   The court has to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property.

(iv)   A nuisance, to be actionable, must be such as to be real interference with the comfort or convenience of living according to the standards of the average man, and an interference with alone causes harm to something of abnormal sensitivities does not itself constitute a nuisance.

(v)   Once the nuisance is established, the court can take into account the delicate and sensitive characteristics of the plaintiff in determining the issue of remedy.

19.  The parameters of defining an actionable nuisance is laid down in more recent decision in Kai Shing Management Services Limited v Yuk Yun Kit & others (unrep, LDBM 240/2014, 22 July 2016).  Factors to be taken into account are (i) locality; (ii) manner of interference; (iii) fairness between the parties; (iv) standard of comfort; and (v) abatement.

20.  The abovementioned principles are guidelines only, it all depends on the facts of each particular case.  The locality of the nuisance is indisputable because the two flats are opposite to each other with a corridor between them.  Noise and odour can be a possible cause of nuisance.  The only defence with the 1^st defendant, in summary of the principles highlighted above, is whether the extent of noise and odour had  exceeded the standard of comfort which the residents are expected to tolerate when the deed of mutual covenant itself did not state prohibition of keeping dogs.  The issue boils down to whether the manner which the 1^st defendant has kept the dogs caused interference and had infringed the standard of comfort of the plaintiff.  This is plainly dispute on fact.

21.  The only merit of the 1^st defendant’s defence would be the availability of defence witnesses of whom are capable to testify the degree of dog barking and/or odour emitted from Flat 2A was not excessive which has cause nuisance on the part of the plaintiff.  The available witnesses are (i) investigating officer from the FEHD; (ii) an officer from SPCA; (iii) an officer from AFCD; (iv) a security guard of the building and (v) a resident of the building.  Mr Chung, counsel for the plaintiff argued, the evidence of the witnesses are all unreliable.  I agree, to some extent, the defence witnesses may not be able to testify the extent of dog barking (and or odour) to the extent of the plaintiff, who had been residing in Flat 2H at all material times. Nevertheless, the 1^st defendant is justified, at least, to test the evidence of the plaintiff vis-à-vis his witnesses.  The determination of fairness between the parties and standard of comfort should also be premised on the evidence of factual witnesses.

22.  Mr Chung submitted, abatement is no defence to the nuisance caused to the plaintiff.  Even though the 1^st defendant averred he had tried his best endeavor, to put air purifiers in the corridor, to withhold odour caused by the dogs (or cats).  In the Clerk & Linsell, 21^st edition, §20-39-40, it states:-

“...... It is no defence that the defendant believed that he was entitled to do as he did or that he took all possible steps to prevent his activity from amounting to nuisance. In this sense, and in this context, it is correct to say that “at common law, if I am sued for nuisance, and the nuisance is proved, it is no defence on my part to say, and I prove, that I have taken all reasonable care to prevent it.” [emphasis added]

23.  I accept this is a fair argument.  Yet whether the 1^st defendant is capable of running this defence of abatement should be tested at trial.  The matter should be resolved when nuisance is proved after hearing all evidence.

24.  Mr Hui further argued, the plaintiff’s cause of action of the 1^st defendant’s breach of the deed of mutual covenant is bound to fail.  The reason being the 1^st defendant is only a tenant of the 2^nd defendant, he has no duty under the provisions of the deed of mutual covenant.  The plaintiff failed to specify in the statement of claim how he is entitle to sue the 1^st defendant on the strength of the deed of mutual covenant.  The relevant part of is Clause 11 therein, which is reproduced as follows:-

“Each owner ...... together with the benefit of and subject to these presents and to let or demise his part of the said building to any tenant or lessee. Provided that such owner shall be responsible to the other owners for the due performance and observance on the part of such tenant and lessee of the terms and conditions thereof.”

25.  Mr Chung replied in his submissions, notwithstanding there are three causes of actions (nuisance, negligence and breach of DMC) were pleaded in the statement of claim, the plaintiff is seeking the same damages.  The crux of the plaintiff’s claim is nuisance, and both negligence and breach of DMC are built on that ground.  Mr Chung’s argument did not answer to the pleading point.  I agree with Mr Hui that the cause of action of nuisance against the 1^st defendant could not have be premised on the breach of the DMC where the 1^st defendant is not a party to it.  On this point, I accept the 1^st defendant has a meritorious defence against the plaintiff.

Costs

26.  The usual costs for an order to set aside a regular default judgment, when a defendant is at some fault, costs should be awarded to the plaintiff in any event.  (See §13/9/16 of the Hong Kong Civil Procedure).  Mr Hui submited, on the strength of the pleading point, the 1^st defendant concedes 50% of the plaintiff’s costs.  I disagree.  Costs is a matter of discretion, the fault of the 1^st defendant is blatantly seen in his conduct from the service of the writ of summons.  He took litigation lightly without considering its consequence.  He had a wishful thinking that the plaintiff’s claim will vanish after vacating Flat 2A.  The 1^st defendant is seen with serious fault and costs of the 1^st defendant’s application should be to the plaintiff in any event.

CONCLUSION

27.  I make the following orders:-

(i) The default judgment entered against the 1^st defendant on 22 April 2015 be set aside.

(ii) The 1^st defendant do file and serve an acknowledgement of service within 7 days from the date of this decision.

(iii) The 1^st defendant do file and serve his defence within 28 days from the filing of the acknowledgment of service.

(iv) Leave for the plaintiff to file and serve a Reply, if so advised, within 28 days thereafter.

(v) The costs of the 1^st defendant’s summons filed on 12 May 2016 be paid by the 1^st defendant to the plaintiff with certificate for counsel in any event, to be taxed if not agreed.

(vi) Both the plaintiff and the 1^st defendants’ costs be taxed in accordance with the Legal Aid Regulations.