CHEUNG LO FAT AND OTHERS v. TANG KUNG LEUNG AND OTHERS

DCCJ 654/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 654 OF 2013

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D E C I S I O N

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1. I have to deal with two summonses taken out by the plaintiff. The first one deals with an application to amend the statement of claim, in particular, to include the intended defendant, Mr Steven Liu, to be one of the defendants in this case. I will deal with this matter first, because this is objected to by Mr Liu, represented by counsel.

2. The first ground of objection is that the plaintiffs do not plead that the intended 10th defendant, namely Mr Liu, has any interest whatsoever in the lands concerning the passageway.  Neither is there any evidence put forward by the plaintiffs to the effect that the intended 10th defendant has any interest in the lands one way or the other.  Plainly, joining the intended 10th defendant herein does not assist the court in determining the first issue of the dispute or at all.

3. In my judgment, whether the 10th intended defendant has any interest in land is not relevant.  In this case, the plaintiffs claim that they are and were at all material times the respective owners or occupiers of the premises set out in the schedule 1 in the statement of claim, and they claim that leading from the respective premises there is a way to the public highway between Lam Hau Tin and the lot numbers referred to in the statement of claim in DD120 (referred to as “The Way”).

4. Under paragraph 3 of the statement of claim, the plaintiffs say that they have been for the full period of 20 years and more using The Way without interruption for the purposes of passing and repassing by themselves and their servants, etc, and then they say that they claim the right to do the matters referred to in paragraph 3, the right of way as having been used by them respectively and their respective predecessors, etc.  They allege that the defendants obstructed their right of way and they claim under (1) of the relief that the plaintiffs are entitled to the right of way, and under (2) they ask the court for an injunction restraining the defendants from placing or allowing to be placed in The Way without anything substantially restricting, preventing, obstructing or otherwise interfering with the reasonable enjoyment of The Way by the plaintiffs.  To solve the issue under (1) and (2) there is nothing relating to an interest of land on the part of the intended 10th defendant.  It is a groundless objection.

5. The second objection is that it is not necessary for determining the second issue of the dispute in this case.  The second issue is that the defendants do the alleged acts, interfering with the plaintiffs’ right to use the passageway, on assumption that the plaintiffs have the right to use the passageway.  That is the first issue.  Defence counsel for the intended 10th defendant set out the reasons for being not necessary for determining the second issue of the dispute under paragraph 17 of its skeleton submission:

(a) whether the defendants did wrongfully obstruct the passageway at the material time does not depend on whether the intended 10th defendant advised and/or assisted them to do so;

(b) conversely, if the intended 10th defendant did advise and/or assist the defendants to obstruct the passageway but the defendants did not do so, there is no encroachment on the plaintiffs’ right to use the passageway, if any.

6. There is evidence from the plaintiffs’ affirmations to show that the intended 10th defendant did participate in causing obstruction to the right of way, if what is said in the affirmation is truthful.  Of course, at this stage it is not for me to decide whether the affirmation of Cheung Kam Fook, Mok Chi Cheung Benny, Cheung Choi Lun and Man Cheung Lam is truthful or not.  I assume that the affirmation is true, and then on that basis I consider whether there is evidence to show that Mr Liu took part in causing obstruction to the right of way.

7. On page 70 of the trial bundle for this hearing, H, I and J are relevant.  On 10 June 2013, CCTV records show and “we witnessed that Steven Liu directed and told Cheung For Yau and other workers how and where to place such metal posts or frames or fencelike structures to extend such obstruction of such right of way in Lot No 2457 and 2459 in DD120”.  This is an example showing that he directed and told other people to place metal posts or frames or fencelike structures to extend the obstruction of right of way.

8. This piece of evidence is sufficient to support the part of the statement of claim intended to be amended. 

“6B. From 28 May 2013 onwards, the 2nd to 5th, 9th and 10th defendants started placing metal posts or frames or fencelike structures in the middle of such right of way which the plaintiffs should enjoy by virtue of the said injunction which caused obstruction, hindrance and interference of the plaintiffs’ enjoyment of such right of way.”

9. This allegation under 6B is that the 10th defendant, up to this stage still the intended 10th defendant here, took part in the obstruction activities.  His defence counsel said that he is only a person who advised and assisted the defendants in placing metal or frames and fencelike structures.  The allegation is that he only advised and assisted, so he was not related to the obstruction. That cannot be correct, because under 6B he actually took part in the obstruction activities, and that is supported by the hearing bundle on page 70 which I read out. 

10. So the joinder of the 10th defendant is necessary because under order 15, rule 6(2)(b) of the Rules of the District Court:

“(i) Any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the causal matter may be effectively and completely determined and adjudicated upon.”

11. If the allegation as revealed by the affirmation is true and if the intended 10th defendant is not joined, the matter cannot be completely determined because he is alleged to be one of the persons who caused the obstruction, and without him, the matter cannot be completely determined.  So he is necessary to be joined.

12. So I allow the plaintiffs’ application to join him as the 10th defendant.