WIDE FORTUNE (HK) LTD v. YIP CHIU KAI

HCA330/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.330 OF 2004

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D E C I S I O N

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1. This action was commenced on 19 February 2004. The plaintiff is the registered owner of the cinema on the Ground Floor, Fortuna House, No.151 Shek Yam Road, Nos.2 and 4 Tung Chi Street, Kwai Chung, New Territories ("the Premises"). The defendant operates a hawker stall at the side lane between the Premises and the adjacent building. The location of the defendant's hawker store is shown on the plan annexed to the Statement of Claim.

2. It is the plaintiff's case that it has caused massive decoration and construction works to be done to the Premises for the purpose of converting the Premises into retail shops and entrance to the restaurant at upper floor. Such works, according to the Statement of Claim, were near completion.

3. The plaintiff's claim against the defendant is for nuisance. The nuisance being the blockage of the plaintiff's right of pedestrian ingress and egress from the Premises to the side lane. The side lane is Government land.

4. The defendant, in his original Acknowledgement of Service, which apparently was served on 3 March 2004, indicated that he did not intend to defend.

5. However, on 3 March 2004, he applied for legal aid.

6. On 5 March 2004, the plaintiff applied for judgment against the defendant in defraud of notice of intention to defend.

7. On 25 March 2004, legal aid was refused.

8. The plaintiff's application for judgment was heard by Deputy Judge Muttrie on 6 April 2004.

9. On that occasion, the learned deputy judge gave leave to the defendant to amend his Acknowledgement of Service. That was duly done on 6 April 2004 whereby the defendant indicated his intention to defend.

10. The defendant then applied for legal aid on 15 April, but once again it was refused on 11 May 2004.

11. The defendant not having filed any defence in the meantime, the plaintiff applied for judgment in defraud of defence on 28 May 2004.

12. This came before me for hearing on 9 June 2004. At the hearing, the defendant appeared in person, accompanied by his daughter. The defendant asked for time to put in a defence and provided me with a document in which reasons were given why judgment should not be entered against him. I also permitted his daughter to address me on the defendant's behalf.

13. I would be prepared to give leave to serve a defence out of time if it appeared from this document and from the submissions made by the defendant and his daughter that the defendant may have an arguable defence.

14. The defendant relies on the fact that he has been running his stall at the lane for over 26 years. That he has a valid business registration, although he is not a licensed hawker.

15. The plaintiff first demanded the defendant to stop blocking the lane on 7 February 2003.

16. On 3 March 2003, the Lands Department confirmed that the defendant's stall was on Government land and :

".... This office had tried to persuade the stall owner Mr. YIP Chiu-kai to remove his stall structure but was in vain.

Now this office is preparing to arrange a joint clearance operation by various Government Departments. It is expected that a clearance day may be fixed soon after all the necessary formalities have been completed."

17. On 7 April 2003, the defendant commenced action against the Lands Department, HCA1262/2003. It is not very clear from the Writ of Summons exactly what the defendant's claim against the Lands Department was, it reads as follow :

"申請有關葵涌石蔭路147號橫巷的土地使用權。"

18. That claim was struck out by the court on 24 November 2003. The plaintiff was informed of that fact by letter dated 8 April 2004 by the District Lands Office and the letter went on to say :

" Please be advised that the owner (of the above stall) Mr. Yip Chiu-kai's claim was struck out by the Court on 24 November 2003.

This office has instigated land control actions on the stall, including prosecution against Mr. Yip, at the time being. (sic)"

19. On the material available to me, it seems obvious that the defendant's stall would obstruct the ingress and egress of the plaintiff's premises after its conversion. Also that the defendant has no legal right to be blocking such ingress and egress. Such action, on the part of the defendant, amounts in law to nuisance.

20. The plaintiff has entered into a provisional tenancy agreement to lease part of the Premises. It is a condition precedent of this provisional agreement that the defendant's stall must be removed by 31 August 2004.

21. I see no defence indicated in the document handed up to me by the defendant. The mere fact that the stall is on Government land is no defence to a claim for nuisance.

22. The defendant has also alleged that at one time he had the consent or licence of the predecessor in title of the plaintiff to use the land and to keep some of his belonging within the cinema premises. This is vaguely put, but even assuming that to be true, the licence or consent cannot survive the sale to the plaintiff. Further, prior to the conversion of the Premises, the presence of the stall did not block any egress or ingress and therefore inaction on the part of the owner of the cinema was not a waiver of any right.

23. The defendant also relies on the fact that the stall is his only means of livelihood, that he has two children who are receiving full-time education and that his eldest daughter is unemployed. But that is also not a defence to the plaintiff's claim.

24. In short, the defendant has no defence to the plaintiff's claim.

25. I would grant a mandatory injunction requiring the defendant to remove the hawker stall as shown in the annexure to the Statement of Claim from the side lane. The defendant is to remove the hawker stall within 14 days of this decision. There is to be liberty to apply regarding the implementation of this order.

26. The plaintiff also claims an interlocutory judgment for damages for nuisance to be assessed as well as interest on such damages, if any. However, on the material available to me, the plaintiff would suffer no damage if the defendant removes his stall before 31 August 2004. So I make no such order but give liberty to apply, should it become necessary.

27. Lastly, I make an order nisi for costs of the action against the defendant. Unless the defendant applies within 14 days to show cause why he should not have to bear the costs of the action, he would have to pay the costs of the action to the plaintiff.