TO YIK SAU, TO YU ON and TO TAK FAI as the managers of TO SHEUNG UN TSO v. LEE SHING FAT

DCCJ 2135/2018

[2018] HKDC 1450

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2135 OF 2018

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DECISION

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A basic principle

1.  It is a well-known basic principle that an injunction must be in clear and unambiguous terms.  This applies to all injunctions, including interlocutory injunctions.

2.  In Gee, Commercial Injunctions (6^th edition), it is stated in para 4-001:-

“There is a general principle that an order must be expressed in unambiguous language so that the defendant knows exactly what is forbidden or required by the order. Contempt proceedings will not succeed when the order is unclear or ambiguous.

The principle applies to all injunctions. This is a matter of fairness to the person enjoined. It goes not only to the drafting of an injunction when in principle the decision has been made to grant it, but also to the decision itself on whether to grant an injunction or specific performance.” (Emphasis added)

3.  Recently, the UK Supreme Court in O (A Child) v Rhodes [2016] AC 219 said:-

“79. The problem with the form of the injunction is that schedule 2 defines the information which it is forbidden to publish not only by reference to its substantive content, but also by the descriptive quality of being “graphic”. What is sufficiently “graphic” to fall within the ban is a matter of impression. The amplification of “graphic” in the court's supplementary judgment as meaning “seriously liable to being understood by a child as vividly descriptive so as to be disturbing” similarly lacks the clarity and certainty which an injunction properly requires. Any injunction must be framed in terms sufficiently specific to leave no uncertainty about what the affected person is or is not allowed to do. The principle has been stated in many cases and nowhere more clearly than by Lord Nicholls of Birkenhead in Attorney General v Punch Ltd [2003] 1 AC 1046, para 35:-

“An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute.”” (Emphasis added)

4.  The plaintiffs’ application for an interlocutory injunction here must be refused for the non-observant of this principle.

The non-observant

5.  On 17 May 2018, the plaintiffs commenced these proceedings against the defendant.  The essence of the plaintiffs’ case as pleaded in the statement of claim is as follows:-

(1)   The plaintiffs are the managers of To Sheung (or Seung) Yuan (or Un) Tso (“the Tso”), who is the owner of Lot No 334 in Demarcation District No 87 together with the buildings, structures and messuages thereon (“the Land”).

(2)   The defendant is the tenant renting the Land from the Tso.  Under the tenancy agreement (“the TA”), the defendant may only use the Land for lawful purpose and may not use the Land for any illegal or unlawful purpose in contravention of any law or any legislation.

(3)   In breach of the TA, the defendant has used the Land or a substantial portion thereof for storage use, which is an unauthorized development in contravention of the Town Planning Ordinance.  That led to the Tso being prosecuted by the Town Planning Department and as a result, the Tso has been fined.

(4)   By a Chinese notice dated 13 February 2018 to the defendant, the Tso has required the defendant to cease the unauthorized development and use of the Land.  However, the request was ignored by the defendant.

(5)   By the writ herein, the plaintiffs have terminated the TA and required the defendant to deliver vacant possession of the Land to the Tso.  The plaintiffs also claim damages against the defendant.

6.  On 15 August 2018, the plaintiffs issued a summons (“the summons”) seeking an interlocutory injunction in the following terms:-

(1)   an order restraining the defendant from continuing the unauthorized development and use of the Land;

(2)   an order requiring the defendant to forthwith remove and demolish “such illegal structures (for storage use which constitutes unauthorized development of the Land)” on the Land, and to terminate “such unauthorized development and use” of the Land; and

(3)   if the defendant does not comply with (2) above, the plaintiffs be at liberty to forthwith remove or demolish such illegal structures at the costs of the defendant.

7.  The summons is supported by the affirmation of To Yik Sau (“the affirmation”).

8.  With respect, having read the evidence produced by the plaintiffs, I do not know what are “such illegal structures” which are being targeted by the injunction sought.   The most relevant documents produced in the affirmation are 3 letters from the Planning Department.  These letters show that there is unlawful storage on the Land.  However, as to whether there is any structure on the Land being used for facilitating the unlawful storage, no answer can be found from these letters.  Other documents produced in the affirmation, as well as the contents of the affirmation, shed no light on this question.

9.  The plaintiffs have not spelt out clearly what are “such illegal structures (for storage use which constitutes unauthorized development of the Land)”.  The terms of the injunction sought by the plaintiffs are vague and unclear.  No one can know the precise scope of the order.

10.  In my judgment, the plaintiffs have failed to comply with the requirement in the basic principle set out above.  For this reason, the summons must be dismissed.

Disposition

11.  I dismiss the summons.

12.  Since the defendant has no participation in this application, there be no order as to costs.