KWONG YIU KEUNG STANLEY AND ANOTHER v. CHIU SIN SHUM AND ANOTHER

DCCJ 5745/2017

[2021] HKDC 158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5745 OF 2017

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is the trial of an alleged noise nuisance dispute between neighbours of adjoining units situated immediately above and below each other in Mei Foo Sun Chuen (“Mei Foo”).

BACKGROUND

2.  The plaintiffs (“Ps”) are the registered owners and occupants of the unit below, namely, Flat D on 10^th Floor of No 118 Broadway, Mei Foo (“Ps’ Premises”) whereas the defendants (“Ds”) are the registered owners and occupants of the unit above, namely, Flat D on 11^th Floor (“Ds’ Premises”).

3.  The primary dispute concerns Ps’ complaints of noise nuisance emanating from Ds’ Premises for a continuous and prolonged period of time which Ps seek the Court’s intervention and corresponding reliefs.  Ds deny any noise emanating from activities within Ds’ Premises constitute or amount to actionable nuisance.

4.  On the other hand, Ds complain of “prank calls” made by Mr Kwong Yiu Keung Stanley (“Kwong”), the 1^st named plaintiff, allegedly causing distress and amounting to harassment to them and their family.  They seek reliefs against Ps concerning the same.

5.  The Court is asked to resolve the various issues raised at this trial which originally was set down for 4 days but managed to last for 14 days. That was mainly due to the half day sittings as a result of the pandemic and also due to a new issue arose in the middle of the trial in relation to Ds’ leasing out and subsequent moving out of Ds’ Premises.

Summary of parties’ respective cases

Ps’ case

6.  Ps have lived in Ps’ Premises since 1996 whereas Ds have only moved into Ds’ Premises in 2010 only.

7.  There is no evidence that Ps had made any complaints about his neighbours regarding any noise issues for the 14 years prior to Ds’ moving in.  Nor was there any complaints made by Ps in the first 6 years during Ds’ occupation of Ds’ Premises.

8.  At all material times, Ps’ Premises were occupied by 3 occupants, including Kwong, his wife (who is the 2^nd named plaintiff in this case) and their son who was 19 years old at the time of trial.  Whereas Ds’ Premises were occupied by 6 occupants, including Ds, their 2 young children, the 1^st named defendant’s mother and their domestic helper.

9.  Ps allegedly felt that there was a noticeable increase in noise emanating from Ds’ Premises ever since about 2010 when Ds’ had moved in but things only took a turn for the worse in 2016.

10.  Ps claim to be disturbed by sporadic, abrupt but frequently occurring noise coming from Ds’ Premises which can be heard, felt and notice in Ps’ Premises during day time and night time and on weekdays.  Ps claim that the noise worsened in frequency during public holidays which are reminiscent of mechanical impacts onto the floors of Ds’ Premises, including distinguishable causes such as running and jumping as well as dropping of heavy objects.

11.  Despite repeated complaints made to Ds, the management office of Mei Foo (“the Management Office”) and the Police, Ps aver the noise nuisance has persisted without any improvement.

12.  To verify Kwong’s subjective hearing of the excessive noises, Ps had engaged Ir Wilson Ho (“Ir Ho”) of Wilson Acoustics Limited to carry out inspection and investigation at Ps’ Premises in order to monitor the noise and vibrations detectable from 25 to 31 August 2017 and from 12 to 14 September 2017 without the knowledge of Ds.  The conclusion of the first report prepared by Ir Ho allegedly reinforced Ps’ complaints that the noise generated by activities in Ds’ Premises are of such extent that they caused adverse impact on the use and enjoyment of Ps’ Premises.

13.  Hence, Ps commenced the present proceedings in December 2017, which causes of action are based on actionable nuisance and breach of covenant under the Deed of Mutual Covenant applicable to the respective premises dated 15 June 1978 (“the DMC”).

14.  In particular, Ps rely on clause 9(1)(iii) of the DMC which expressly provides as follows:-

“Each Owner hereby covenants with the other as follows:-

(iii) Not to use the Unit and the Space to the use of which he is entitled hereunder for any illegal or immoral purposes nor do or permit anything therein or thereupon which may create unnecessary noise or may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the Building…”

Ps’ pleaded case

15.  Ps pleaded in the amended statement of claim (“ASOC”) that[1], since early 2016, Ds had “wrongly caused and permitted excessive noise and vibrations to emanate from the Defendants’ Premises interfering the Plaintiffs’ Premises.”

16.  Based on that, Ps allege that there is a case for the tort of nuisance.

17.  In addition, Ps claim that there is a breach of Clause 9(1)(iii) of the DMC.

18.  In short, Ps’ causes of action are based in tort and in contract.  Ps further claim an injunction against Ds “to take all effective measures to stop the nuisance from emanating from (Ds’ Premises)”. They also claim for damages.

Ds’ pleaded case

19.  Ds initially acted in person and have filed a “homemade” defence where they disputed liability.  That defence, which was written in Chinese, has been replaced after Ds engaged their solicitors in May 2018 to act on their behalf.

20.  By their amended defence and counterclaim filed on 11 February 2019 (“AD&CC”), Ds continued to dispute liability but at the same time raised a counterclaim against Ps based on complaints of alleged “prank calls” made by Kwong.

21.  In respect of their dispute on the liability towards Ps’ claims, Ds case can be succinctly summarized as follows:-

(a) noise and vibrations emitting from Ds’ Premises were at a reasonable, ordinary and natural level and originating from their ordinary use[2];

(b) Ds have, since receiving complaints from Ps in or around 2016, took courtesy steps to reduce any emanation of noise and vibrations by installing plastic covering on furniture legs, foam carpeting on the floors, and raise platform with a three-inch thick mattress in the children’s play area[3];

(c) That there was considerable construction and refurbishment works within the housing estate causing excessive noise and vibrations[4]; and

(d) By reasons thereof, Ds have not caused and are not liable for Ps’ complaint.

22.  Hence, Ds agree that while there was noise and vibration originating from Ds’ Premises due to the normal living activities which took place inside the apartment, the level of noise and vibration however is within reason and normal level of that of an average household.  They do not constitute either nuisance or a breach of the DMC.  Further, without prejudice to their defence, Ds have taken courtesy steps to further reduce the production of noise and vibration that can be caused by regular household activities:-

(1) installing plastic covering on furniture legs;

(2) installing foam carpeting on floors; and

(3) installing a raised platform with a three-inch thick mattress in the children’s play area.

23.  Despite Kwong’s persistent complaints to the Police, on most of the occasions of the Police visits, either no noise or only acceptable noise level was observed by the Police.  In any event, Ds had never been prosecuted or charged by the Police on any of those occasions.

24.  At around the time when Kwong started to make complaints about noise, the surrounding areas of the property estate had ongoing construction and refurbishment works which also emanated noise and vibrations.

25.  As to the counterclaim raised under the AD&CC, Ds allegation is that Kwong had since or about June 2018 made a number of calls to Ds’ Premises via the building’s intercom system at its entrances without saying a word[5]. It is further averred that CCTV records captured the incidents when Kwong made 6 such “prank calls” between 12 July 2018 and 16 July 2018[6]. A report was made to the Police on 16 July 2018[7]. Kwong stopped making those calls after the Police visited Ps’ Premises.  Ds claim to have suffered annoyance, disturbance, inconvenience, anxiety, emotional distress and fear for their personal safety in each of those instances[8]. They ask for injunctive relief and damages[9].

26.  Hence, Ds’ counterclaim is based on intentional/reckless infliction of injury, harassment, nuisance and breach of the DMC.

Ps’ reply & defence to counterclaim

27.  Kwong in his reply and defence to counterclaim (“RDCC”) admits that he had made calls to Ds’ Premises via the building’s intercom system but denies they were “prank” in nature. Rather, he avers that they were made to “alert” Ds of their intolerable noise made at the time without wanting to have any direct confrontation with them.  In any event, he had stopped making such calls from at least September 2018 onwards[10].

Interlocutory injunction application and trial

28.  On 20 December 2019, Ps applied for an urgent interlocutory injunction by summons (“the Injunction Summons”)[11], allegedly owing to the worsening noise since September 2019 with noticeable heightening of the loudness and frequency in noise, particularly in the master bedroom of Ps’ Premises coming from Ds’ Premises at nighttime which had caused significant sleep disturbances to Ps.

29.  Chief District Judge Ko (“the CDJ”) initially adjourned the Injunction Summons for arguments to be heard by him in March 2020.

30.  However, the Court later withdrew that order and directed the parties to attend a direction hearing on 23 January 2020 whereby the CDJ took the view that the matter could be more efficiently dealt with by standing the Injunction Summons over to an early trial[12]. Hence, a 4-day trial was fixed by the CDJ before me at that hearing.

31.  As a result, whilst the complaints under the Injunction Summons are specifically directed at the alleged worsening night disturbances since September 2019, they have now submerged under the general noise complaints made by Ps in the main action such that a final determination of the main claims of Ps would also dispose of the Injunction Summons.

The relevant legal principles

32.  As stated above, Ps’ claims are founded in the tort of nuisance and breach of the DMC.  Ds’ claims are in the same nature though the nuisance and annoyance complained of one based on the “prank calls”, rather than any noise emitted from the Ds’ Premises.  In addition, Ds rely on the tort of harassment against Ps for the “prank calls” made.

Tort of nuisance

33.  Mr Tony Chow, Ps’ counsel, in his opening submissions has very helpfully summarised the principles and the authorities governing the tort of nuisance.  They are not disputed by Mr Felix Ng, Ds’ counsel. I shall respectfully reproduce them in full here.

34.  As a starting point, the applicable principles for noise nuisance have been succinctly stated in Tam Wai Cheung Roger & Anor v Goodwell Property Management Limited, unreported, DCCJ 2262/2013 (11 January 2016)[13] (“Roger Tam”) at §§12 to 14 and in So Kwok Yan Bernard v Lau Wing Chung, unreported, DCCJ 2343/2012 (20 March 2015; HH Judge Andrew Li) at §§42 to 46.

35.  In relation to the general principles applicable to common law nuisance, Mr Chow has summarized them as follows:-

(i) Nuisance is “an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of … his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land”: Clerk & Lindsell on Torts, 22^nd Edition, at §20-01;

(ii) There is no absolute standard to apply as to what degree of interference, disturbance, or annoyance amounts to a nuisance; it is always a question of fact and circumstances including the standard of comfort or convenience of living of the average man taking into account the character of the neighbourhood and the time of the commission of the act which may render an act which will usually be lawful to become wrongful: Tam Wai Cheung Roger at §14 and Clerk & Lindsell at §§20-10, 20-13 and 20-16;

(iii) “No precise or universal formula is possible but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society…” and “…the inconvenience must be an “inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people””: Capital Prosperous Ltd v Sheen Cho Kwong [1999] 1 HKLRD 633 at 639H-J;

(iv) In deciding whether the noise nuisance is substantiated, the court shall not take into account the subjective sense of sound of the complainant: Ng Yuen Han v Lam Fei Fui [2013] 3 HKLRD 608 at 615;

(v) It is not necessary, in interference nuisance cases, to show any actual financial or physical damage or injury to health since the “damage” is the annoyance caused: Clerk & Lindsell at §20-27;

(vi) Where the interference is intangible, the plaintiff is not required to prove that the activity producing the interference is unreasonable, only that its effect is unreasonable: So Kwok Yan Bernard, at §112;

(vii) An occupier of land who did not create the nuisance but has allowed it to continue will be liable for that nuisance if with knowledge or presumed knowledge of its existence and being in a position to take effective steps to bring it to an end, he fails to take any reasonable means to do so: Smeaton v Ilford Corp [1954] Ch 450 at 462.

36.  In relation to quantum, the starting point is general damages for inconvenience and discomfort could be awarded for nuisance as in tort, and also in an action in respect of breach of covenant to the deed of mutual covenant: So John & Anor v Lau Hon Man & Ors [1993] 2 HKC 356 at §11 and Clerk & Lindsell, at §§20-28 and 20-29.  Ps refer to the following authorities for reference purposes for the Court’s consideration:-

(i) In Well Force Company Limited v Boomway (Hong Kong) Ltd, unreported, HCA 4480/1994 (7 July 1998), the case was about excessive noise due to renovation of adjacent flat and the court awarded $35,000 as general damages for a period of some 10 days to 2 weeks;

(ii) In Ng Yuen Han, the case was for noise nuisance and the court of appeal awarded $60,000 as damages for 5 years of persistent volume at a level of 60 to 80 dB;

(iii) In Tam Wai Cheung, the case was about absence of good sleep for 86 days due to complaint of noise and the court in obiter was of the view reasonable general damages would be $30,000; and

(iv) In So Kwok Yan Bernard, the case was also concerned with noise complaints between upstairs and downstairs neighbor spans at least over 6 years, and the quantum was agreed by the parties to be $50,000.

37.  In relation to establishing of liability for the tort of nuisance, Mr Ng, counsel for Ds, has added the following points in his opening submissions:-

(i) A plaintiff who wishes to establish a nuisance to personal comfort has a heavier burden of proof to discharge than one who seeks to show a nuisance to property: Gaunt v Fynney (1872-1873) LR 8 Ch App 8, 11-12;

(ii) The Court has restricted nuisance by placing emphasis on reasonableness of interference, not foreseeability: Hunter v Canary Wharf Ltd [1997] AC 655;

(iii) A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.  It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society or more correctly in a particular society: Sedleigh-Denfield v O’Callaghan [1940] AC 880, per Lord Wright at 903;

(iv) The locality of the nuisance complained of must be taken into account: St. Helen’s Smelting Co v Tipping (1865) 11 H L Cas 642, 11 ER 1483, 650; and

(v) The approach is whether “the addition of a fresh noise caused by the defendant’s works may be so substantial as to create a legal nuisance.” Rushmer v Polsue & Alfieri Lt [1906] 1 Ch 234, approved by the House of Lords on appeal.

38.  Mr Ng further submits that in the Hong Kong context where people are living in close proximity, the following rules should apply:-

(i) A useful test which balances the interests between neighbours of their respective use of their properties is what reasonable according to usages of mankind living in a particular society.  In assessing the question of nuisance in the context of Hong Kong, the Court should take into account the particular habits of Hong Kong people, in particular later bedtimes: Tam Seen Mann Estefania v Chan Norman and Anor (Unreported, HCA 627/2010 & HCA 729/2011, 13 August 2014), per DHCJ Linda Chan SC (as she then was);

(ii) In any society, where persons are living in close proximity to each other neighbours must exercise a certain amount of give and take in the use of their properties: Sun Crown Trading Ltd v Holywood Ltd (Unreported, CACV 64/2012, 11 October 2013), at §56;

(iii) To decide whether noise nuisance is substantiated, the Court will not take account of the plaintiff’s subjective sense of sound: Ng Yuen Han v Lam Fei Fui & Anor (Unreported, CACV 285/2011, 25 March 2013); and

(iv) The character of the neighbourhood must be taken into account.  Noises exceeding a recommended maximum noise level did not constitute an action nuisance per se: So Kwok Yan Bernard, supra.

Proper construction of Clause 9(1)(iii) of the DMC

39.  In relation to the general principles applicable to covenant restricting nuisance, annoyance or damage, Mr Chow for Ps has summarised them as follows:-

(i) Where the covenant concerns “nuisance, annoyance or damage”, this will extend to interferences not within the scope of common law nuisance: Tod-Heatly v Benham (1888) 40 Ch D 80 at p 95;

(ii) “Annoyance is a wider term than nuisance, and if you find a thing which reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of an ordinary sensible English inhabitant of a house, that seems to me to be an annoyance, although it may not appear to amount to a physical detriment to comfort.”: Tod-Heatly v Benham, at p 98;

(iii) Such covenant is to be applied “according to robust and common sense standards”, Hampstead & Suburban Properties Ltd v Diomedous [1969] Ch 248 at p258;

(iv) The Lands Tribunal has also said the threshold for breach of the similarly framed covenant is a low one: Felan Investment Limited v Sarwin Industries Limited & Anor, unreported, LDBM 7/2015 (16 March 2018) at §43 which appear to resonate with the observations of this Court in So Kwok Yan Bernard at §120 at least to the extent that as compared to common law nuisance, ‘annoyance’ here protects ‘higher qualities of enjoyment’ thus it must follow a correspondingly lower relative threshold.

40.  Where there is no evidence that the acts complained of would be repeated and in the absence of evidence to show the risk of a breach remained or the party in breach has somehow shown by his conduct that unless restrained, he would continue with the breach, a permanent injunction should be refused: Chiu Hung Shun, Paul & Another v So Ka Tai & Another, CACV 136/2005 (5 December 2005) at §16.

41.  Mr Ng for Ds submits that “unnecessary noise” is singled out as a sui generis in Clause 9 alongside with “annoyance”.

42.  On a proper construction of Clause 9 of this particular DMC, Mr Ng submits that the governing test for determining whether the noise emitted from Ds’ Premises falls foul of the noise covenant is whether the noise made is an “unnecessary” creation.  The phrase “unnecessary noise” is included in Clause 9, such that noise complaints are singled out from the residual general category of other annoyances.  To construe otherwise would make the phrase “unnecessary noise” redundant altogether.  The present case is distinguishable from Tod-Heatly, supra, on the facts, where the contractual instrument in Tod-Heatly does not spell out “unnecessary noise” as a covenant of its own kind, and does not distinguishes noise from other general annoyances.

43.  The applicable threshold for breaching the noise covenant under Clause 9(1)(iii) of the DMC is that the noise has to be an “unnecessary” creation.  What is unnecessary should still be subjected to the principle of reasonable user.

44.  In contrast, the applicable test for establishing liability for vibration is whether the vibration satisfies the lower threshold of annoyance: vibration is not singled out as a sui generis and can fall within the ambit a general “annoyance”.  Still, that slightly-relaxed threshold has to be viewed according to what is objective reasonable.

Whether an injunction should be granted if liability under the main issue is established?

45.  By their opening submissions at §23, Ps have effectively abandoned their claim for an interim injunction sought under the Injunction Summons.  Ds say that the Injunction Summons was used only as an excuse to adduce additional post-writ/expert evidence to improve Ps’ case.  Ds say they will seek costs against Ps for the costs wasted in defending the Injunction Summons.

46.  Insofar as the remedy of a permanent injunction is being sought, it is trite that where damages is an adequate remedy, an injunction should not be granted where damages would be an adequate remedy should be applied in a way which reflects the substantial justice of the case: AB v CD [2014] EWCA Civ 229.

Kwong’s “prank calls”: trespass, tort of harassment, nuisance, and breach of the DMC

Trespass / intentional or reckless infliction of injury

47.  Ds case is that, by making the “prank calls” which resulted in mental distress to Ds, Kwong’s conduct amount to a tort in intentional or reckless infliction of injury against Ps.  In Wilkson v Downtown [1897] 2 QB 57 the plaintiff was frightened by false news about her husband, told deliberately as a practical joke. She suffered mental distress, and Wright J held that she was entitled to recover damages, at 59:-

“The defendant had wilfully done an act calculated to cause harm to the plaintiff - that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act.”

The tort of harassment

48.  Ds further submit that Kwong’s “prank calls” simultaneously give rise to a cause of action by Ds founded in the tort of harassment. Anthony Chan J at paragraphs 62 – 68 of his judgment in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 stated that:

“ 62. What are the parameters of this tort? First, I respectfully adopt the observation made by Lee JC in Malcomson in connection with the definition of harassment at 464F:

For the purposes of this application, I shall take the term ‘harassment’ to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person. This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.

63. …

64. Third, like most of the established tortious causes of action, there should be a mental requirement of the wrongdoer as well as damage to the victim in order to constitute the tort of harassment.

65. In respect of the former, I do not believe that it is necessary to show intention on the part of the wrongdoer to cause injury to the victim. The lower threshold of recklessness as to whether the victim would suffer injury from his act would suffice. The lower threshold is justified when physical or mental harm can be involved.

66. As regards the kind of injury or damage which may ground an action in tort of harassment, one can envisage that the harassment can result, at one end of the scale, physical injury and, at the other end, mere humiliation.  The correct balance has to be struck.  Further, different persons can react differently to the same type of harassment.  A mature and confident person may feel humiliated about a course of conduct, whereas a younger and more sensitive person may be affected with serious anxiety. However, a wrongdoer must take his victim as he finds him. It is not easy to differentiate between, eg, distress and mere humiliation. I believe.”

Nuisance

49.  Ds further adopt the definition in Clerk & Lindsell as set out in the previous section.  Ds’ case is that Kwong’s pranks calls are also acts of nuisance by interfering with Ds quiet enjoyment of Ds’ Premises.

50.  In Ng Hoi Sze v Yuen Sha Sha [1999] 3 HKLRD 890, Rogers JA said at 895:-

“…whether the tort of nuisance relates to direct injury to land or the action relates to a nuisance which is ‘productive of sensible personal discomfort’, the action is not one for causing discomfort to the person but is one which arises because of the utility of the land has been diminished by reason of the existence of the nuisance.”

Breach of the DMC

51.  By making the repeated prank calls, Kwong also is in breach of Clause 9(1)(iii) of the DMC.  The operative part of Clause 9(1)(iii) provides:-

“nor do or permit anything therein or thereupon which may create unnecessary noise or may be a nuisance or annoyance to or may cause damage or inconvenience to other occupiers of the Building…”

52.  Ds submit that Kwong’s prank calls are “annoyance” or “inconvenience” caused to Ds within the purview of Clause 9(1)(iii) of the DMC.

Whether an injunction should be granted to stop the prank calls?

53.  Ds’ case is that prank calls did not stop until a report was made to the Police about these calls.  There is no admission of liability, or even an undertaking not to make those prank calls again or to carry out other acts of harassment.  The Court is therefore invited to grant an injunction to stop these wrongful conduct by mandating Kwong not to harass Ds by using the intercom system or other means.

Ds claim for aggravated damages/exemplary damages

54.  Ds claim for both aggravated damages and exemplary damages for the wrongful conduct committed by Kwong.

55.  In Allan v Ng & Co [2012] 2 HKLRD 160, Fok JA explained the different legal basis for granting aggravated damages and exemplary damages, distinguishing them from the grant of general damages:-

“81. It is important to keep in mind some basic distinctions between compensatory (or basic) damages, aggravated damages and exemplary damages as these differences are significant both in terms of substance and procedure.

82. As a result of an actionable wrong, loss suffered by a plaintiff may be pecuniary or non-pecuniary and damages may be awarded to compensate for either type of loss. In a typical personal injuries action, for example, there will be a claim for both special damages and general damages. Special damages reflect pecuniary loss and are those quantifiable by reference to specific items of expenditure, such as the cost of medical treatment. General damages are non-pecuniary in nature and are those which the court quantifies by reference to the facts and circumstances of the case, such as damages for pain, suffering and loss of amenities. In the context of an action for defamation, a plaintiff may recover general damages for injury to his reputation.

83. Non-pecuniary loss may also include hurt feelings and mental distress arising from the circumstances in which the wrong was committed, such as justified feelings of outrage at the defendant’s conduct. Additional damages over and above the normal general damages may be awarded to reflect this, in order to mark the aggravation of damage suffered by the plaintiff by reason of the defendant’s conduct. Such aggravated damages are awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequence of his being humiliated. Typically, in an action for defamation, the defendant’s conduct after the publication of the libel including the manner in which the defence has been conducted will be relevant. Where appropriate, a court (or jury) may award aggravated damages in addition to the general damages to reflect the additional loss suffered by the plaintiff.

84. All the above-mentioned types of loss are compensatory in nature. Even where aggravated damages are also awarded on top of these general (or, as they are sometimes referred to, basic) damages, the total figure of such award is intended to reflect what is considered to be fair compensation for the plaintiff’s injury or loss: see Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at p.516G.

85. Such compensatory damages are to be contrasted from exemplary damages, also sometimes referred to as punitive damages. Exemplary damages are anomalous: Rookes v Barnard (No 1), p.1221 (Lord Devlin) and see §§96 - 105 of Lord Scott’s speech in Kuddus v Chief Constable of Leicestershire Constabulary. As is explained in McGregor on Damages (18^th ed., 2009) at §11-001, exemplary damages are anomalous in the civil sphere since they confuse the civil and criminal functions of the law. In particular, it is anomalous that money extracted from a defendant by way of punishment should be paid to a claimant, in whose hands they are a windfall, rather than the State. However, they remain a part of the common law of England and also that of Hong Kong.

86. An important consequence of exemplary damages not being compensatory is that their assessment does not in principle relate to the loss suffered by the plaintiff.  Instead, the general objectives of exemplary damages may be stated as being punishment, deterrence and denunciation: see per Pratt LCJ in Wilkes v Wood (1763) Lofft.1, 98 ER 489.  As Kwan JA has pointed out, they are a remedy of last resort (see §54 above).”

56.  Hence, Ds’ claim for aggravated damages is based on the “mental distress arising from the circumstance in which the wrong was committed, such as justified feelings of outrage at the defendant’s conduct”.  On that basis, award for aggravated damages can be made for the compensation of mere “pride and dignity and the consequences of being humiliated” - even if there is no award of general damages for psychiatric illness caused by the wrongful conduct. 

57.  Ds’ basis for claiming exemplary damages is that Kwong’s conduct is that award of nominal general damages for Kwong’s harassment conduct, etc is “inadequate to punish and deter the defendant for his conduct that exemplary damages should be considered.”: Allan v Ng & Co, supra, per Kwan JA at §55.

58.  Ds also rely on the Appendix to the judgment in Allan v Ng & Co, which sets out a reference table for the quantum of an award of exemplary damages in Hong Kong.

DISCUSSION

Issues to be determined

59.  Based on the above, the issues that the Court have to resolve in this case will include:-

(1) Whether the noise and vibration emanating from Ds’ Premises are unreasonable that it amounts to a tort of private nuisance?

(2) On a proper construction of Clause 9(1)(iii) of the DMC, what are the threshold(s) for liability imposed in relation to: (a) noise; and (b) vibration emanation from Ds’ Premises? Applying the correct threshold(s), whether the covenants in relation to (a) noise; and (b) vibration has been breached?

(3) If liability is established under (1) or (2), whether an injunction should be granted?

(4) Whether the making of “prank calls” by Kwong of Ps amounts to a trespass to person, nuisance, harassment and/or breach of Clause 9(1)(iii) of the DMC?

(5) If liability is established under (4), whether there should be a grant of an injunction to restrain Kwong from making further prank calls?

(6) If liability is established under (5), whether there should be the Court should make an award of aggravated and/or exemplary damages against Kwong?

The remaining live issues at the end of trial

60.  At the end of the trial, Ds no longer pursue the cause of action for breach of the DMC in their counterclaim.

61.  Further, in light of the relocation of Ds and the family from Ds’ Premises during the trial (of which I will go into detail in the later part of this judgment), Ds have confirmed that they would no longer purse the injunction application sought under the AD&CC.  Likewise, Ps’ counsel has confirmed that they would not pursue their injunction application in relation to their case for tort of nuisance.

Structure of the Judgment

62.  In this judgment, I shall first under Part (I) analyse the evidence of the respective factual witnesses called by Ps and Ds in the trial.  They included Kwong for Ps; Madam Kwok Sze Ling (“Kwok”), the 2^nd named defendant; and her husband Mr Chiu Sin Shum (“Chiu”), the 1^st named defendant, for Ds.

63.  Then under Part (II), I shall examine the evidence of the 2 expert witnesses called by the parties respectively.  They are Ir Ho, Ps’ acoustic expert and Dr James W H Wong (“Dr Wong”), Ds’ acoustic expert.

64.  Lastly, under Part (III), I shall apply my findings to the outstanding issues with the Court has to resolve in this case.

65.  However, before going into the factual evidence given by the respective witnesses on both sides in this case, I would like to set the scene by making some comments regarding the general environment of the subject premises and the estate first.

General environment of Mei Foo and in particular No 118

66.  Mei Foo is one of the oldest and largest private housing estates in Hong Kong.  It was developed over 8 different stages/phases from 1968.  It has a total of 99 blocks, around 13,500 apartments and an estimated population of 70,000 to 80,000 people[14]. It was designed and still runs as a middle class / middle income development.  Block No 118 where Ps and Ds’ Premises are located is at Stage 8 of the development. It situated on the main road by the name of ‘Broadway’.  The block was right in the middle of the estate, quite a distance away from the main highways / flyover of Kwai Chung Road (situated on its north) and West Kowloon Highway (situated on its south).  Besides a petrol station which is located a couple blocks away on Broadway, there was no big shopping malls, bus terminals, or MTR station/exits at or near to Block No 118.

67.  Both Flat 10D and Flat 11D face Broadway.  While the road is a busy one, I do not think it is noisier than any other main road which runs through the middle of a large housing estate like Mei Foo. There would be constant traffic, including private cars, lorries, school buses and motor cycles using Broadway throughout the day but it would naturally become quieter in the evening.  The fact that there was a petrol station situated just a couple of blocks away means that there would always be continuous traffic.

68.  Therefore, I do not accept Mr Ng’s submission that where No 118 is situated, it was affected by the traffic noise coming from the main roads and highways.  Judging from its geographical location and the considerable distance it is away from the main roads and highways, I do not think both Ps and Ds’ Premises would be affected by the traffic noise coming from this source at all.

69.  On the other hand, I do not accept Kwong’s evidence that it is a particular quiet and tranquil community, comparable to that of Kowloon Tong and Sai Kung.  After all, it is a densely populated estate consisted of almost 13,500 apartments with a lot of residents living in rather moderate size of flats and in close proximity with each other. Further, Flat 10D and Flat 11D are situated right in the middle floors of the building and No 118 is also sandwiched between different blocks of flats of Stage 8 and Stage 4, separated by Broadway only.  So it is reasonable to assume that there would be constant noise coming from different household activities from different units throughout the day and sometimes at night.  Like any large housing estates in Hong Kong, the residents will have to put up with a reasonable level of noise generated by their neighbours.  

70.  Further, just like any other large housing estates, I accept that there was always renovation and maintenance work going on.  For example, from the years of 2016-2019, there was a large scale external wall overhaul programme undertaken by the Management Office at Stage 8 of Mei Foo, including No 118 and its surrounding buildings.[15] Kwong admits in his evidence that the work from the renovation programme had made the environment become more noisy and sometimes the noise could be annoying, depending on the distance.[16] I am not surprised that was the case.  

71.  Further, as admits by Kwong in his evidence, there was a lot of ongoing renovation and maintenance work during the period of 2016-2018 in other units situated within the same building.  Again, this is not surprising given the large number of flats situated within the same building and the regular change of ownership in the properties one expect would take place within a popular estate like Mei Foo.

72.  However, it is clear to me that, despite the environment as depicted above, Kwong has chosen to ignore all the other noises coming from the background and/or other sources from the neighbourhood.  Instead, he has solely focused on, if not completely obsessed with, the alleged noises coming from Ds’ Premises over the last 3 to 4 years.

Part (I): Analysis of factual witnesses’ evidence

(A) Kwong’s evidence

73.  Kwong is the only factual witness who gave evidence on behalf of Ps at the trial.  He did not call his wife who was the other named plaintiff in this case.  Nor did he call his son who lives with them at Ps’ Premises.  Thus, there is no evidence to support or corroborate Kwong’s accounts even though he was in the position to call at least one of them.

74.  Kwong has adopted the contents of his witness statement dated 6 June 2019 (“Kwong’s WS”) and his affirmation filed on 20 December 2019 in support of the Injunction Summons (“Kwong’s Aff”) as his evidence-in-chief.

75.  In essence, Kwong states that since he and his wife moved into Ps’ Premises in 1996, they had been able to live there peacefully and without any incident until Ds moved into the flat above them in 2010.  In Kwong’s WS, he mentions that he and his wife had enjoyed and appreciated the “quiet environment of the neighborhood to (Ps’ Premises) and the housing estate of Mei Foo Sun Chuen generally.’’  He mentions that he and his family led a normal and structured life, with him usually waking up at 6:00 am in the morning and goes to work about 7:00 am before returning home for dinner at 7:00 pm during weekdays.  His wife is a housewife who spends most of her time at home while he is at work.  His son, who was born in 2001, was a Form 6 student at the time when he made his witness statement in June 2019.  He was 18 years old at that time and was 19 by the time of trial.  Kwong states that his son would be at school between 7:00 am to about 4:00 pm during the week.  He and his family usually like to spend weekends at home.  According to Kwong, their main activities at home include “reading books, enjoying light music, watching television and surfing the net”.  His son would spend most of his time studying at home.

76.  Allegedly, immediately after Ds had moved into Ds’ Premises in 2010, his family noticed a “considerable increase of vibrations and noise events emanating from (Ds’ Premises).”  Kwong alleges that even though they were noticeable, the “vibrations and noise were still bearable” and he and his family were able to “tolerate the initial occurrences without making any complaints.”

77.  Kwong states in his witness statement that since or about early 2016, he has noticed excessive vibrations and noise emanating from Ds’ Premises. He also noticed “sporadic and abruptly but frequently occurring vibrations and noise emanating from (Ds’ Premises) can be felt, heard and noticed in (Ps’ Premises) during day time and night time (particularly from around 16:00 to 01:00) and on weekdays and worsens in frequencies during weekends and public holidays”. According to Kwong, they noticed that during day time, “the vibrations and noise were mainly noticeable from the living room and the small bedroom” whereas from 10:30 pm to about 1:00 am, the vibrations and noise were noticeable from the master bedroom.  Kwong alleges that the latter has caused him grave difficulty to fall asleep during those hours.

78.  From a lay person’s point of view, Kwong could make out that some of the vibrations and noise appear to be due to “mechanical impacts” onto the floor of Ds’ Premises.  He also noticed that the noise usually follows after the vibrations.

79.  According to Kwong, the most distinguishable causes of these vibrations and noise include “apparently moving, dropping and falling objects, heavy footsteps such as running and jumping on the floor of (Ds’ Premises)”.

80.  Kwong alleges that, as a result of the disturbance coming from Ds’ Premises, his family’s quiet enjoyment of Ps’ Premises has been greatly affected.  He claims that they were no longer able to “enjoy light music or quiet reading time” and his son could no longer concentrate in his studies during the occurrence of the vibrations and noise.  He claims that the affected vibrations were quite unbearable and made them felt very uncomfortable both physically and mentally. 

81.  Since then, Kwong claims that he had complained the matter to both the Management Office and the Police.  However, he felt that both the Police and the staff from the Management Office could not assist him to resolve the issues.  In particular, he complains that the Police initially only arrived Ps’ Premises about 15 to 30 minutes each time after he made the report.  By then, he claims that the vibrations and noise had “subdued or ceased”.  He claims that the Police could not understand or experience “the continuing disturbance” caused to his family who were full time occupants of Ps’ Premises.

82.  Dispite the measures taken by Ds to reduce the vibrations and noise from the flat, Kwong did not accept that they had improved the situation at all. 

83.  Further, Kwong does not accept the fact that the noises were due to the construction or renovation works taking place within the estate itself as he considers that the vibrations and noise he complained of come directly from the “banging of (Ds’ Premises’) floor”.  He also claims that since the noise and vibrations he had complained of had lasted for more than 3 years up to a time of he was making his witness statement, he considers that no renovation works could have lasted for that long.

84.  Kwong in his witness statement admits that he had, in August 2017, invited Ir Ho to conduct monitoring test at Ps’ Premises without the knowledge of Ds.  Those tests were conducted from 25 to 31 August 2017 and 12 to 14 September 2017.  He claims the result of Ir Ho’s tests accorded with all his experiences. 

85.  Kwong also tries to come up with a lot of excuses regarding the “prank calls” he made via the intercom system of the building in or around June/July 2018.  He says it was caused by the “intolerable annoyance” from the vibrations and noise coming from Ds’ Premises.  He claims such were attempts to “notify (Ds) to immediately halt the vibrations and/or noise coming from (Ds’ Premises)”.  Kwong claims that by using the intercom system of the building, this would avoid any “direct confrontation”.  He admits that on each occasion when he made a call to Ds’ Premises by using the intercom system, he did not speak “in the hope that Ds would realize what they were doing at the time had been causing disturbance to (Ps’ Premises)”.  However, he concedes that his several attempts by using the intercom system to “alert” Ds were “unfruitful”.  He says he therefore stopped using the intercom system to call Ds’ Premises after a few tries.  He admits that on or about 16 July 2018, the Police attended his apartment and informed him that a complaint had been received from Ds about calls made by him via the intercom system.  Since then, those calls have stopped.  Ps denied that those calls were “prank calls”.

86.  Less than 6 months after Kwong has filed his witness statement in this case, he made an “urgent” application for interlocutory injunction under the Injunction Summons.  That was back in December 2019.  The application was made on an inter partes basis.  To support his application, Kwong has filed Kwong’ Aff on 20 December 2019. 

87.  Ps claim in Kwong’s Aff that the application was made due to “recent change of circumstances”, including allegedly a drastic worsening of the noise nuisance coming from Ds Premises since about September 2019, in particular during the night time when they stayed in the master bedroom of Ps’ Premises.  Kwong says he could hear extremely loud noises which are “reminiscent of objects falling onto the ground and heavy walking sounds from (Ds’ Premises) much more frequently than before”.  He claims that such noises would continue at least until about 1:00 am each night.  While the complaint contained in Kwong’s Aff was similar to those contained in his witness statement, one major difference is that he has heavily relied on the report of Ir Ho which was written after the appointment of the expert without leave or direction from the Court.  By relying on the contents of Ir Ho’s report, Ps made the injunction application on the ground that they considered damages would not be adequate as remedy to secure his “peaceful and quiet sleeping time”.  Besides adding the contents of Ir Ho’s 1^st Report, Kwong’s Aff really has added nothing new to the contents of his witness statement which was made 6 months before that.  Unsurprisingly perhaps, the CDJ did not grant the injunction Ps sought under the Injunction Summons.  Instead, he gave directions for a speedy trial.

Kwong’s evidence under cross-examination

88.  Kwong was cross-examined extensively by Mr Ng, counsel for Ds, during the first 2 days of the trial. 

89.  To say that Ps’s case has collapsed during the cross-examination perhaps is an understatement.  At the end of Kwong’s evidence, it has become quite apparent that his complaints were highly subjective and opinionated.  They lack a proper objective and scientific basis.  Ps’ case is full of Kwong’s own subjective feelings, conjectures and emotions.  It devoid particularities and details.  It also shows up Kwong as a very intolerant, self-righteous and dogmatic person.  He came across as a man full of anger and grudges.  It is significant to note that, besides the purported support from his own expert’s opinion, Kwong’s complaints were not supported by anybody else.  Kwong who was in the position to call his wife and his son to give evidence in support of his case, chose not to do so, based on the excuse that his lawyers had advised him that it was not necessary. More importantly, his prolonged complaints over a period of 3-4 years are not supported by the objective findings and observations of any independent third party, including the staff/caretakers from the Management Office or officers from the Police who had been sent to specifically investigate into his complaints in almost 80 separate occasions. 

Kwong not a completely truthful witness

90.  While I would not go as far as to say Kwong is a dishonest witness, I certainly find him not a completely truthful one.

91.  To start with, Kwong, who is a loss adjuster by profession, has failed to mention a word about his job a profession in both his witness statement and affirmation.  This is most unusual as normally one would expect to find such basic information in a witness statement or affirmation filed by a party.  In my view, his background as a loss adjuster for over 40 years and his qualification as a chartered loss adjuster for over 20 years is certainly a relevant matter in a claim such as our present case.  The fact that he is the director of a large loss adjuster firm means that he must be extremely familiar with claims procedures and in matters of civil litigation.

92.  Although Kwong claims that he does not specialize in noise nuisance cases in his professional capacity, he admits that he has had to deal with experts from different fields over the years.  This included experts for fire and water damage claims, etc.  Although he had never engaged any noise expert himself in his professional capacity before, Kwong admits that he had instructed many experts from different fields in the past.  In this case, rather unconventionally, it was him who had identified, found and engaged Ir Ho instead of his solicitors for the preparation of Ir Ho’s 1^st Report. He claims that he had selected Ir Ho on the recommendation of other experts he knows of.  It is also clear from his evidence and that given by Ir Ho that he was the person who had given specific directions and/or instructions to Ir Ho. He had regular direct communication and discussions with Ir Ho on what he wanted the expert say and put in his first report.  Of course this was the very report that Ps had tried to rely on in their interlocutory injunction application under the Injunction Summons.  When asked by the Court why he wanted to take the such matters in his own hands, Kwong could not really give a satisfactory answer.  However, he frankly admits that by appointing and instructing Ir Ho himself, it was hoped that this would “elevate the chance of success” in his case. In other words, Kwong was directly involved in the drafting and preparation of Ir Ho’s 1^st Report.  He had commented on the contents of the draft report throughout the process.  This in my view has greatly compromised the independence of Ir Ho as an expert witness and the reliability of the contents of his reports.

93.  I have no doubt that this was one of the main reasons of why Kwong had deliberately omitted to put in his job or profession in both Kwong’s WS and Kwong’s Aff as he was directly and heavily involved in the preparation and drafting of the expert’s reports.

94.  Also, Kwong has tried to project himself as someone who is cultured and likes to listen to light or classical music at home. The alleged noise coming from Ds’ Premises had allegedly deprived him the opportunity and enjoyment to do so.  When asked by Mr Ng of who is his favourite classical composer and piece of music, Kwong came out immediately with the answer that his favourite composer is the “French composer Rossini” and his favourite piece of music is Rossini’s “Trumpet Concerto”.  Of course, for anyone who knows a little bit about classical music, Rossini was Italian (eventhough he had spent much of his later life and career in France) and he was a famous opera composer, not known to have published any trumpet concerto. This shows that Kwong has tried to project an image of himself as a civilized and cultured individual when he most probably is not.

The lack of details and particulars of the complaints

95.  In his evidence, Kwong could not provide details and particulars of the alleged noise and vibration incidents he had encountered.  He did not make his own written record as to the time, date, duration and description of those alleged events.  When asked under cross-examination why this was lacking, his only explanation is that he had left it to his expert to deal with the matter. I find the lack of any contemporaneous records of the alleged incidents of noise nuisance and vibrations surprising in this case.  Given Kwong’s expertise and experience as a loss adjuster, one would expect that he would at least make some sort of written records or contemporaneous notes to verify his claims. However, he was unable to provide any.

96.  Instead, each time when Kwong allegedly had heard any excessive noise or vibration coming from Ds’ Premises, he would either make a complaint to the Management Office or report the matter to the Police.

Complaints to the Management Office

97.  Starting from around middle of 2016, Ps made a number of complaints to the Management Office regarding excessive noise allegedly coming from Ds’ Premises.  Each time the Management Office would send a caretaker or a staff member to investigate.  According to records kept by the Management Office, from 4 September 2016 to 7 August 2017 (a period of 11 months), Ps had made a total of 24 separate complaints against Ds.  Save on 2 occasions, all the complaints related to against noise allegedly made before 10:00 pm.  Most of them were between 6:00 pm to 10:00 pm, with a couple of occasions where the complaints were made during day time: see “KSL-6” of Kwok’s witness statement.  It is believed that this was not the complete list of the complaints made by Ps to the Management Office as Ps’ complaints against Ds’ Premises had started sometime around June 2016 and lasted well beyond 2017.

98.  In any event, despite having made 24 separate complaints to the Management Office during the aforementioned period, apparently the Management Office did not find anything unusual coming from Ds’ Premises at all.   This is apparent from the fact that the Management Office had never issued Ds with any specific warning. Only 2 general notices under the heading of “噪音事宜” (Noise Matters) dated 21 January 2017 and 21 June 2017[17] were posted at the lift lobby and inside the lifts of the building.  There is no evidence to show that such notices were issued as specific warning against Ds.  Instead, the notices gave “3 tips” to the residents of the building to reduce the noises within their own unit.  The tips included:-

(1) to install padding or carpet on the floor;

(2) be attentive when moving furniture and perhaps install plastic boots on furniture legs; and

(3) do not wear wooden clogs or high heel shoes indoors.

99.  While Ds did not think any of the measures suggested by the Management Office was necessary because they did not consider that there was any noise beyond what is reasonable, ordinary and natural for a Hong Kong household had originated from their apartment, being considerate and responsible neighbour, they took steps to eliminate any sudden noise caused by moving furniture or dropping of objects on the floor while the children play.  Thus, in January 2017, Ds took the steps of (1) putting “rubber boots” on the furniture legs; (2) installing a raised floor in the son’s bedroom for him to play.[18] Ds have produced photographs to show these.  Besides, Ds had also placed carpets / rugs in the living room.  From 2017 onwards, Ds also placed playmats at the son’s bedroom.  From 2018 onwards, Ds replaced thicker mats with 1 cm cushion materials in these areas[19].

100.  Obviously, Kwong was not satisfied with that because he considered his complaints to the Management Office were not effective and fallen on deaf ears. According to him, it was the Management Office who had advised him to report the matter to the Police instead. However, I have my doubt on this. 

101.  In my judgment, the fact that the Management Office could not find any excessive noise coming out of Ds’ Premises from 2016 to 2017 at least indicates the following:-

(1) at least the staff and/or caretakers from the Management Office who were sent to investigate into the alleged noise and vibrations caused by the Ds at their apartment did not think they have any grounds to take any specific action against Ds;

(2) that objectively nobody except Kwong himself had heard of those alleged excessive noise or vibration during that time; and

(3) Kwong must have been subjectively more sensitive to noise and vibration than any of the staff and/or caretakers from the Management Office.

Kwong’s complaints to the Police

102.  From January 2017 onwards, which was about 8 months since he first made a complaint to the Management Office, Kwong stepped up his campaign of complaints by making reports to the Police. 

103.  Under cross-examination, Kwong claims that it was in April 2017 that he had first called the Police to complain about the alleged nose coming from Ds’ Premises.[20]  By June 2017, he says that he had only reported to the Police twice about the matter.  He clearly felt offended that during the 9 months between September 2016 and June 2017 when he started to make complaints to the Management Office that Ds had never contacted him.  However, it is worth pointing out here that up to the date of trial, Kwong had never approached Ds directly and personally to complain about the alleged noise and vibrations nor had he at any stage went up to Ds’ Premises to make any requests to ask them to reduce their noise.  He obviously expected Ds to make the initial step to approach him first when he was the party who had made all those complaints against them over the months.     

104.  According to the records provided by the Police, over a period of 38 months (from January 2017 to July 2020), Kwong had made a total of 53 separate complaints/reports of noise nuisance allegedly coming from Ds’ Premises to the Police.  Kwong admits in his evidence that each time after he made a report to either the Police’s 999 console or at the Cheung Sha Wan Police Station by telephone, it would take the Police between 15 minutes to half an hour to arrive Ps’ Premises where they would stay for at least 10 to 15 minutes to observe if there were any noise or vibration coming from Ds’ Premises as complained by him. 

105.  Out of the 53 complaints made to the Police, on 32 of those occasions, the Police found there was “no noise” emitting from Ds’ Premises at all.  On 13 other occasions, while they found there was some noise, such noise was found to be “acceptable” by the police officers who attended Ps’ Premises.  Only on 8 occasions that the Police had given “advice” to Ds.  I note that 7 out of those 8 occasions were related to noise events happened before 10:00 pm.  I further note that only “advice” was given by the Police on those occasions. They were not warnings.  No prosecution was ever taken against Ds.  

106.  Therefore, to put the matter in perspective, on 88% of those occasions during the Police’s visits to Ps Premises, where the police officers had made observations without the knowledge of Ds, they were not able to detect any noise (or sufficient noise) or vibration which had caused their concerns.  In other words, in almost 9 out of 10 occasions, the Police did not think they needed to interfere or to give “advice” to Ds. 

107.  While Kwong denied that he was subjectively more sensitive to noise, he was not really able to give a plausible explanation as to why all the police officers who had been sent to Ps’ Premises to investigate into his complaints on those 53 occasions could not detect any noise or sufficient noise to warrant any action against Ds.

108.  In my judgment, the fact that Kwong’s subjective complaints were not supported by any objective observations or findings made by the police officers who visited Ps’ Premises strongly suggests that, either those noises he complained of did not exist at all or, if they existed, they were well within an acceptable level, compatible to any noise produced by an ordinary household of a young family living in a multi-storey building.  In my judgment, the lack of any positive findings of noise from the Police on those 53 occasions is the strongest evidence that the Ds had not produced any excessive noise complained of by Kwong.  I so find that was the case.

109.  Further, I note that in their pleaded case, Ps alleged that they have suffered from vibration on the ceiling at Ps’ Premises.  However, that is a very little evidence or explanation from Kwong as to how and when such vibration took place.  Again, his case of vibration simply was not supported by the result of the investigations or findings made by the Management Office or the Police.

Whether Kwong is subjectively more sensitive to noise or vibration than others

110.  Although this has been denied by Kwong, the overall evidence seems to suggest otherwise.  It is because out of all the persons who had been asked to investigate into the noise complaints, he was the only person who could hear those noises he complained of.  The fact that Kwong’s wife, who is the other named plaintiff in these proceedings, chose not to testify to corroborate his evidence, shows that either his wife is not supportive of his course of action or she is unable or unwilling to give evidence to corroborate his claims.  I do not accept his answer given under cross-examination that he had consulted his lawyers on this matter and was advised that there was no need for 2 persons to give evidence in this case.  I further reject his claim that the reasons why both he and his wife’s name appeared as plaintiffs in this case was only due to the fact that they have purchased the property in joint names together.  It is trite that where a witness is available to give evidence but chose not to, a court is entitled to make adverse inferences against the party.

111.  Besides his wife, Kwong could have also called his son (who was 19 years old at the time of trial) to give evidence to support his case.  However, he had chosen not to do so also.

112.  In the circumstances, given the fact that his case was not supported by the staff from the Management Office, the Police and even his own family members, which at the same time was strongly denied and rebuked by Ds, I consider it is reasonable for me to draw the inference that Kwong was subjectively more sensitive to noise and vibration than any normal person.  I so draw such inference against Ps.  

113.  My above findings are partly supported by the observations made by a leading acoustic expert in the field of whose work both experts have cited in this case.  In HG Laventhall’s article on “Low Frequency Noise and Annoyance” (2004, Noise and Health)[21], the learned author has made the following observation at p 67:-

“Changes in behaviour also follow from long-term exposure to low frequency noise.  Those exposed may adopt protective strategies, such as sleeping in their garage if the noise is less disturbing there.  Or they may sleep elsewhere, returning to their own homes only during the day.  Others tense into the noise and, over time, may undergo character changes, particularly in relation to social orientation, consistent with their failure to recruit support and agreement from the regulatory authority that they do have a genuine noise problem.  Their families, and the investigating officer, may also become part of their problem.  The claim that their “lives have been ruined” by the noise is not an exaggeration, although their reaction to the noise might have been modifiable at an earlier stage.”

114.  In my view, Kwong falls squarely into the category of persons who are “hyper-sensitive” to noise:-

(1) Kwong, who is aged 59 at the time of issue of the writ (and in his late 50s when he started to make the complaints from mid-2016 onwards), is well within the age-group (50-59) of those who have hyper-auditory sensitivity.  People within this age group “might have very sensitive low frequency hearing and be prone to annoyance from sounds which are not heard by most people and which are difficult to measure”[22];

(2) In the absence of a known source of noise, people in the sensitive group suffer “extreme frustration” and “find it necessary to assume a source, thus enabling themselves to cope through provision of a focus for anger and resentment”. Such assumed source include neighbours[23]; and

(3) The noise complained of by people in the sensitive group was close to inaudibility and heard by only a minority of people[24].

115.  In my judgment, Kwong falls squarely within the definition of that category of persons described by the learned author in that article.

116.  For example, Ps are not able to explain why Ds, who had been living at Ds’ Premises and raising a young family there since 2010, did not make any excessive noise and vibration for the first 6 years of their occupation but yet from about the summer of 2016, they started to do so. Further, Kwong, who apparently was the only person able to hear those excessive noise and vibration, did not think there was anything wrong with his own hearing.  He did not see the need to have his hearing examined by a doctor or an ENT expert.  Instead, he chose to put all the blame on Ds who live above his flat. 

117.  When confronted with the question of whether he considered the Police’s findings were acceptable under cross-examination, Kwong only accepted that they were the Police’s own findings and judgements.  He considers that those judgements might have been acceptable to the Police but was not acceptable to him. Similarly, in relation to the 24 separate occasions when he complained to the Management Office of noises and vibrations coming from Ds’s Premises, Kwong also did not accept that he was the only person who could hear the noise but not the caretakers or the staff sent by the Management Office to investigate into his complaints. 

118.  I regret to say that when a person could only see the little speck of sawdust in another person’s eye but not able to see the plank in his own eye, as I find it is in Kwong’s case here, he will have the tendency of blowing all things out of proportion and perceive any noises he heard as much louder and much worse than they actually are.  I believe that is the case here. 

119.  I have little doubt that had any of these complaints that Kwong made to the Management Office or the Police been true at all, or at the level of severity as he complained of, they would at least be picked up or confirmed at least by some of the staff from the Management Office or police officers sent to investigate into his complaints.  The fact that in none of these recorded 77 occasions (24 to the Management Office and 53 to the Police), which apparently did not cover all the complaints he made to these 2 authorities, that anybody heard such loud noise or vibration complained of by him strongly suggests to me that Kwong is a person who is subjectively much more sensitive to noise.

Kwong’s refusal to mediate or to compromise

120.  It is quite obvious that Kwong never had the intention to resolve this matter by mediation or negotiations.

121.  This can be amply demonstrated by an incident during one of the occasions when Kwong made a report to the Police.  The event happened in or around July 2018, although nobody can now remember the exact date.  On that occasion, after the Police arrived one night late in the evening (well after the family had gone to bed) and went up to Ds’ Premises to make enquiries, Chiu, the 2^nd named defendant, wanted to speak to Kwong directly.  Kwong refused to speak to Chiu as he told the Police there was “no such need”.  The Police came down from the staircase from Ds’ Premises with Chiu following them.  Instead of speaking to Chiu directly and to tell him what his complaints were, Kwong accused him of creating “counter-nuisance” (「反滋擾」) against him.  Kwong says he “felt upstairs had no sincerity to resolve or improve the matter”, therefore he decided to take legal action instead.

122.  Based on that incident alone, he “concluded” that “11D had not expressed any sincerity”.  Subsequently, he instructed his solicitors to write to Ds on 25 September 2019 to register the fact that Ps refused to undergo any mediation as they considered that Ds have not shown “any sincere attitude to negotiate for settlement of this matter”.  Ps’ solicitors stated in the letter that “(Ps) take the view that resolving the disputes by mediation for the time being is not constructive and is only a waste of costs exercise.”  They were instructed to withhold any mediation “until there is improvement of the present nuisance situation.”[25] They asked Ds’ solicitors to cancel the mediation which was originally scheduled to take place on 25 October 2019.

123.  When asked by Ds’ counsel about this matter during cross-examination, Kwong agreed that it was him who had refused to mediate. While agreed that Ds had wanted to speak to him, he says that he would “see the attitude of the other side” before he would talk to them.  When asked what attitude he was looking for, he said “whether (they were) sincere and friendly”.  He however disagreed that Ds’ invitation to him to undergo mediation was a “friendly attitude” (「友善態度」).      

124.  Based on the above incident, I find that Kwong is an easily offended and over-sensitive person who has steadfastly refused to talk directly to Ds; let Ds knew what specifically his complaints were; refused to make any compromise; and refused to negotiate or communicate including refusing to undergo any mediation or without prejudice discussions to resolve whatever issues he had with Ds.   

“Prank calls” made to Ds’ Premises

125.  Kwong in his evidence admits that between 12 July 2018 and 16 July 2018, within a few days, he had made at least 6 calls to Ds’ Premises via the building’s intercom system. He admits that they were not the only calls of such nature made by him. He had done so on previous occasions. However, Kwong strongly denies that they were prank calls.  He only admits that they were phone calls to “remind and alert” Ds of the noises they were making at the time only. He denies that they were calls made with malicious intent or that they were nuisance phone calls.  He also denies that they were made to frighten Ds’ family.  He denies that the phone calls had caused any emotional stress or psychiatric damage to Ds or their family.

126.  Of course, Kwong cannot deny the fact that he had made those “prank calls” to Ds’ Premises at all as his actions were clearly captured by the intercom system’s cameras.  I do not believe for one moment that Kwong had realized that he was being recorded on those occasions as he claims in court.

127.  I have no hesitation in rejecting Kwong’s explanations as to the purpose of making those calls.  They are just not believable.  I find that they were calls made with a malicious intent. While I do not think it is necessary or helpful to label them as “prank calls”, I think they are certainly “nuisance calls” made with the sole intention to scare and/or to harass Ds and their family.

128.  First, for those 6 nuisance calls which had been recorded (as Kwong admitted in Court there were more which had not been recorded), they were made at different hours of the day, including one as early as at 7:14 am (on 12 July 2018) and one as late as at 10:41 pm (on 16 July 2018).  Others were made at difference time of the day.  The modus operandi of the nuisance calls are the same.  Each time Kwong would approach the intercom and press the number of Ds’ Premises and then had quickly walked away before anybody picked up the phone and answered the call at the other end.  He would not look at the camera of the intercom which could be seen from the monitor screen on the other side.  On each of those occasions, he would not identify himself or speak into the intercom system at all.

129.  Second, if his real intention was to “alert” or “remind” Ds of the noise they were then making (as claimed by him when he gave evidence), I do not see how by walking away and not speaking into the intercom system would able to help to achieve his aim.  Kwong’s explanation that “he did not want to have any direct conversation with them” simply is contradictory to his purported intention of making those calls.

130.  Third, from the way he was dressed and the time of the calls, it is clear that some of those calls were made randomly rather than in response to any alleged noises made by Ds.  For example, he was caught making the nuisance calls on his way back from work (at 18:51 on Friday, 13 July 2018) or just passing by (at 12:40 pm on Saturday, 14 July 2018).  On a couple of occasions, he was captured in using the intercom system at the 1 floor / podium level where, as admitted by him, he did not want to be seen by the caretaker of the building who was stationed at the ground floor lobby.            

131.  Fourth, I do not accept Kwong’s claim that he realized he was being captured by the recording function of the cameras of the intercom system when making those nuisance calls.  Judging from the fact that he was not looking into the camera on each occasion but immediately walked away after pressing the bell, I do not think he realized that the cameras had recording function at all.  It was only after Ds had discovered those footages from the Management Office and reported the matter to the Police that Kwong had stopped making those calls.  I am sure that had the police officers not visited Ps’ Premises and warned him of the matter, he would have continued with his campaign of harassment and persecution as he had done before those 6 recordings were discovered.

132.  Fifth, what Kwong also did not expect to find in this case was the fact that Ds had installed a CCTV camera capturing events inside the living area of D’s Premises (which presumably was for babysitting purpose).  2 of those video clips had been played in court during the trial.  In both clips, one is able to hear that the ringing sound of the intercom system inside Ds’ Premises was quite loud, abrupt and sharp.  They were not, as alleged by Kwong, “not very loud” or “similar to (the tune of) a telephone” at all.  For the nuisance call made by Kwong at 10:41 pm on 16 July 2018, it was clear that there was nobody and no activity taking place within the living area of Ds’ Premises.  Chiu (the 2^nd named defendant), his mother and the son had all came out from their respective rooms and were all in a state of startle / shock as to who would be making a call at that time of the night.  Further, for the nuisance call made at 7:14 am on 12 July 2018, it is clear the family had not been up and about yet.  Only Chiu and his mother were in the living area at the time and they both thought that there was some technical problem with the intercom system rather than having any visitors calling at their home at that time of the day. 

133.  On both occasions, I find there was either no noise or excessive noise coming from Ds’ Premises at the time as alleged by Kwong.  On both occasions, I find that the nuisance calls had startled the occupants at Ds’ Premises.  I further find that all the nuisance calls had been made with one aim in mind, namely, to frighten and to harass the occupants at Ds’ Premises.  They were not made to try to achieve the alleged aim to stop any alleged noise coming from D’s Premises at all.  Otherwise, I expect Kwong would simply speak into the intercom system and make the request for his upstairs neighbour to reduce the noise they were producing, just as any educated, civilized and mature adult would do. 

134.  I shall discuss the effects of my findings above at the end of this judgment.

(B) Ds’ factual witnesses

2^nd named defendant Kwok’s evidence

135.  Kwok was the main factual witness (DW1) giving evidence on behalf of Ds in this case. I was impressed by Kwok’s evidence.  She gave evidence over 2 days and was subjected to some very detailed and vigorous cross-examination by Mr Chow for Ps.  Yet, in my opinion, she has given her evidence in an honest, cogent and compelling manner.  Despite being asked of some very personal and at time painful matters, she managed to keep her composure and dignity without losing her cool.  Most importantly, I consider her evidence is entirely consistent with the activities and the level of noise produced by a young family living in a high rise building in a neighbourhoood like Mei Foo.  Further, her evidence is supported by the findings made by the independent and objective parties like the Management Office and the Police who had attended both Ps and Ds’ Premises in response to the complaints made by Kwong.  As stated, none of the staff or officers went to investigate the noise complaints had found any noise or excessive noise at all. Last but not the least, her evidence is supported by Ds’ expert Dr Wong’s opinion, whose evidence I prefer and shall analyze under separate headings below.

136.  I would flatly reject Mr Chow’s very bold and unfounded submissions that Kwok tries to portray herself as a “fragile victim” when giving evidence and a “calculative and sophisticated litigant who is perhaps more aggressive than she appears by her appearance”.  There was simply no evidence of this and I consider that such comments were both unkind and unnecessary.  I find that she and her husband and their family, are genuine victims of an aggressive, relentless and baseless campaign of complaints launched and maintained by Kwong since middle of 2016 which lasted right up to the trial.       

137.  The crux of Kwok’s evidence is contained in her witness statement dated 26 July 2019 (“Kwok’s WS”); her supplemental witness statement dated 3 March 2020 (“Kwok’s 1^st Supp WS”; and her 2^nd supplemental witness statement dated 8 September 2020 (“Kwok’s 2^nd Supp WS”).  She has adopted the contents of all the above witness statements when she gave evidence.  Unless otherwise stated, I shall accept the matters stated in her 3 witness statements above.

138.  Unlike Kwong, whose wife did not provide any statement or give evidence at the trial, her evidence is fully supported and corroborated by her husband Chiu’s evidence, who was also subjected to the equally thorough and detailed cross-examination by Mr Chow.  

139.  Thus, whereas there are any conflicts in the evidence between Kwok and Kwong, I would prefer Kwok’s evidence and reject those given by Kwong.

Essence of Kwok’s evidence

140.  Kwok is the wife of Chiu, the 1^st named defendant.  They were married in January 2009.  She is in her mid-thirties, a mother of 2 young children, a daughter aged 10 (born in February 2010) and a son who was 5 (born in October 2014) at the time of the trial.

141.  She is a university graduate, having obtained her bachelor degree in commerce from University of Auckland in New Zealand and a MBA degree from Preston University in USA.  She works mainly from home as a financial planner except when she has to go out to meet her clients.

142.  Kwok and her husband Chiu bought Ds’ Premises in August 2010, a few months after their daughter was born, with the intention of moving in there as their family home.  This they did firstly by moving in themselves in November 2010, with their daughter and her mother-in-law (ie Chiu’s mother who is in her early 60s) joining them in March 2011.  Their first full-time helper from the Philippines only arrived and joined their family in December 2014, 2 months after the son was born.  When they renovated the flat, they had replaced the flooring with ceramic tiles in the entire flat.  Like most of middle income households in Hong Kong, the flat is quite compact and consisted of around 600 sq ft. in size only.  Originally, it had 2 bedrooms but Ds converted the area behind the dining space into a third bedroom, for the use of the maid and the son.  There were 2 bathrooms, including one built by their predecessors which was located inside the master bedroom where a small balcony once was.

143.  Hence, it was from December 2014 that Ds’ have become a household of 6 persons only.  Their son did not start to learn to walk until around the end of 2015.  He started to attend nursery class at kindergarten in the summer of 2016 which means he spent the morning in school, from about 8:30 am to 12:00 noon.  He would return home sometime after noon only.

144.  Of course, their daughter, who learned how to walk when she was about one-year old, did that only after she moved into the flat with her grandmother in March 2011.  Like any normal child of her age, she would spend time playing inside the flat with her younger brother, once he was old enough to join her.  According to Kwok, the son learned how to walk before he reached his first birthday.  Thus, one can expect the “noise emission” level at D’s Premises would be more or less the same between 2011 and 2016.  Yet, for some reasons best known to Kwong, Ps’ complaints did not start until sometime in the middle of 2016.  In my view, the logical deduction must be that either Kwong’s hearing has become more sensitive (or his tolerance level to noise has become much lower) or the noise created by Ds’ family has suddenly increased significantly since this time. 

145.  The fact that Kwong was the only person who could hear this “unbearable” level of noise coming from Ds’ Premises seems to suggest to me that the answer is quite obvious.  Kwong must have been subjectively more sensitive to any noises around him since or around middle of 2016.  Since he did not think it was his problem, he did not see the need to consult a doctor and have his ears/hearing checked.

146.  One of the matters which impresses me about Kwok’s evidence is that she was able to give a very detailed account of her family’s daily routine.  They lead a normal and well-structured life, compatible with a young family of their age.  Her husband would go to work every morning at around 8:30 am and return home for dinner at around 6:30 pm. They have dinner together as a family at around 7:00 pm.  The children would go to school at around 7:00 am and 8:30 am respectively.  Her mother-in-law would go out for her morning exercises at around 8:00 am every morning and would return home for a short while before going out at around 2:00 pm to the wet market and then “yam cha” before returning home at around 4:30 pm. Kwok would spend most of her time working at home except when she needs to go out to meet her clients.  She also mentions the fact that as a young family, their children would normally go to bed at around 9:30 pm and with the rest of the family at around 10:00 to 10:30 pm.

147.  As the daughter has extra-curricular classes to attend after school 4 days out of 5 each week, she would usually return home at round 5:30 to 6:45 pm only, depending on the length of those activities.

148.  I accept Kwok’s evidence when she stated that while there would be noise produced by her family, they are no more than ordinary Hong Kong family with young children.  I accept that they were never excessive or persistent.  I also accept that if the children made any excessive noises, as responsible parents, which Ds appear to me to be such parents, they would stop them. 

149.  One of the matters submitted by Mr Chow is that the time of Kwong’s start of complaint of the noise in mid-2016 coincided with the son’s learning how to walk and become more active.  This may be true.  However, as with any family who has young children would know, children are active and it is perfectly normal for them to run around and play inside their own home.  In my view, any noise they make when carrying out these normal daily activities cannot be described as nuisance, let alone actionable nuisance.

Medical condition of the son

150.  Another reason I accept Ds’ case that they might not have generated as much noise as Ps would like the court to believe is in relation to their son’s health condition.  According to Kwok, as a result of his pre-mature birth, the son has always been less active and weaker than his older sister.  In March 2017, the son had an episode of pneumonia which complications have led to his kidney’s failure.  He stayed in hospital during March/April 2017.  Since then, the son has to attend regular specialist follow up treatments in the public hospital for his renal and respiratory condition.  Ds have produced evidence in the form of hospital outpatient departments’ appointment slips to support this. 

151.  I accept Kwok’s evidence that her son’s medical condition has made him less active and required him to take more rest than a normal child of his age. 

152.  As such, I accept the noises produced by Ds’ son would be less than a normal child of his age.  

Kwok’s psychiatric condition resulting from Kwong’s oppressive behaviour

153.  As a result of the unrelenting campaign of Kwong in pursuing after Ds, Kwok has suffered from depression as a result.

154.  In January 2018, Kwok consulted Dr Irene Chau, a psychiatrist she had consulted almost 10 years ago for depressive symptoms during her first pregnancy.  On this occasion, it has been recorded by Dr Chau that she presented with “insidious mood symptoms for over a year, precipitated by alleged frequent unsubstantiated complaints by a neighbour to the management company and the police for making noise”.[26] Kwok has been diagnosed with “anxiety depression, predisposed by genetic factor, and precipitated and perpetuated by social factors (complaint and litigation).”  It has been reported by Dr Chau that the symptoms are in partial remission only with drug treatment …. because of the persistent stress.  There are also “exacerbations of symptoms every time when she receives complaint again, or when she is in anticipation of court procedures.”[27]

155.  Dr Chau opines that Kwok likely needs to receive psychiatric treatment during the litigation and such treatment is recommended to last for at least 6 more months for full discovery after the litigation is over.

156.  According to the payment records, by November 2018, Kwok had consulted Dr Chau for no less than 9 occasions.

157.  There is no doubt in my mind that Kwok’s psychiatric condition was directly caused by the persistent, unfounded and unproven complaints made by Kwong over the past few years.  I shall return to this matter under the discussion of the tort of harassment below. 

A household paved with playmats

158.  According to Kwok, Ds first received complaints from the Management Office in or around mid-2016. The first complaints alleged that Ds had produced sounds such as “footsteps, dragging chairs across the floor, and noises from objects dropping on the floor” from their apartment.[28]

159.  According to Kwok, as responsible parents and neighbour, after Ds received the general notice from the Management Office in June 2017 which contained the 3 “tips” to reduce noises inside a unit, Ds had taken several “courtesy steps”.  As Kwok has emphasized in her evidence, this was done in their role as considerate and responsible neighbour and not because they thought any such measures were necessary.  Ds insisted that there was no noise originating from Ds’ Premises which was beyond that of a “reasonable, ordinary and natural for a Hong Kong household”.

160.  Hence, in January 2017, Ds put “rubber boots” on furniture legs in the living room; and installed a raised floor (with carpet on top) in the son’s bedroom.  This can be seen in the photographs produced by Ds[29].

161.  Further, back in April 2016, well before Ps started to complain about the alleged noises from Ds’ Premises, a family photo taken on 17 April 2016 (showing the son crawling on the floor), reveals that a large rug/carpet had already been placed in the living room which covered most of the living area in front of the TV/display cabinet.

162.  I accept Kwok’s evidence that they had bought this rug/carpet from IKEA because it looked nice and it provided a protected surface for their son to crawl on.  It was not to prevent any falling or dropping of objects by the son on the floor as suggested by Mr Chow during cross-examination. 

163.  In January 2017, Ds built a platform (with a mattress on top) in the 3^rd bedroom which acted as a bed for the helper.  The platform was about 1 metre in height with a lower platform (with a carpet on top) about 40 cm in height at its end which acted as the son’s bed.  Photos produced by Ds show that this area was well protected by carpet / mattress in January 2017[30]. This included a large blue colour rug/carpet shown covering the lower platform. 

164.  By January 2018, that was after Ps have commenced the present proceedings, new lighter dining chairs with transparent “rubber boots” had replaced the previous heavier dining chairs. Thicker playmats and cushioning materials have been placed inside almost every corner inside Ds’ Premises, save and except in the daughter/mother-in-law’s bedroom and a small area in the hallway. 

165.  Thus, as shown in the photos produced by Ds and also in the experts’ reports, the flat has been almost entirely covered by playmats and rugs/carpets. This continued to be the case until the date of the trial as the photos produced by Ds have shown.

166.  According to Kwok, over the years, more and more mats / rugs have been placed inside their flat in response to the persistent and more frequent complaints made by Ps.  By the end of 2019, almost the entire flat has been covered by more and thicker layers of playmats or carpets.  As Kwok has rightly asked Mr Chow during cross-examination, “would a normal home be covered like this?”. 

167.  The way that almost the entire flat is covered by playmats or carpets certainly does not look like a normal household to me.  By covering their flat almost entirely with playmats and carpets, I find Ds have done everything they reasonably could to minimize any sound or impact which their normal activities may cause to the floor, including incidental dropping of objects on the floor and walking or even sometime running, which are something normal in every household.  Yet, apparently, that did not satisfy Ps, at least not with Kwong.  

168.  By contrast, the photographs showing inside Ps’ Premises which were belatedly produced by Ps at the request of the Court reveal that there was hardly any sound absorbing materials to speak of inside Ps’ flat.  Save for 3 small pieces of rugs/carpets, ie one at the son’s room; one in the sitting room and one outside the bedroom/bathroom, there was nothing to cover the flooring of the flat at all.  Otherwise, the entire flat was covered by wood flooring.  There was also no sound absorbing materials like curtains or fabric panels which could be used to reduce any noises.  Instead, blinds were used.  Further, it can be seen that the flat is quite sparsely furnished with lots of wooden cupboards and bookshelves but without any or very little sound absorbing materials[31]. It does not need an expert to tell us that due to the lack of sound absorbing materials and a flat full of wooden furniture and covered by wooden flooring, any sound will travel like inside a shoebox or amplifier.  This matter has been confirmed by both experts in their evidence.  Obviously, Kwong was not concerned with that as he was too consumed with the perceived noises coming from Ds’ Premises.  In my judgment, Ps could have taken steps like installing more sound absorbing materials / items like furniture, curtains, cushioned wall panels inside their flat in order to reduce any sound effects inside their unit.  However, they have failed to do anything of the kind.

Kwok and the children’s absence from Hong Kong

169.  One of the allegations made by Kwong in his evidence is that the noise coming from the Ds’ Premises had continued and the situation did not change since 2016 and was ongoing in December 2019.  In fact, it continued right up to the date of the trial.

170.  Kwok in her evidence states that in fact the family went on holiday for a week from 23 to 30 December 2019 while her mother-in-law went to Taiwan and their helper returned to the Philippines during the same time.  Then the family of 5, including her mother-in-law, went to Japan for holiday in February 2020 in order to escape from the coronavirus. Their helper was on leave while they were in Japan.  Thus, Ds’ Premises were not occupied by anyone during the above periods.

171.  Further, due to the closing of schools in Hong Kong, Kwok decided to take her children to New Zealand.  She did that from 5 March to 5 July 2020.  Their helper’s last day of work was on 30 April.  Hence, during this 4-month period, only her husband and mother-in-law were staying in Ds’ Premises. 

172.  Thus, I find Ps’ continuous complaints of noise insofar as they are concerned with the aforementioned periods would most likely not have come from Ds’ Premises as their flat was vacant most of the time.

29 July 2020 banging of ceiling incident      

173.  In her evidence, Kwok has mentioned an incident which happened on 29 July 2020 at around 7:30 pm.  They felt that someone was banging against the ceiling below their flat (which is the floor slab of Ds’ Premises).  It only lasted for about a minute and the banging went on for about 10 times only.  Ds did not pay any attention to it. This was then repeated at around 9:00 pm for the second time and again for the third time at about 10:30 pm. 

174.  It was only after Ds have reported the matter to the Police and the Management Office that the banging stopped.

175.  I find the banging sound had come from Ps’ Premises and it was most likely either Kwong or one of his family members had used a stick or bloom to hit the ceiling at Ps’ Premises as “signals” to ask Ds to stop making any noises in their flat.  I find such acts were totally unnecessary had Kwong been prepared to talk to his upstairs neighbour in a friendly and civilized manner.

Ds leasing out Ds’ Premises in August 2020

176.  At the end of the hearing on Day 8 of the trial on Monday, 31 August 2020, Mr Ng for Ds informed the Court that he had just found out that Ds had leased out Ds’ Premises to an unrelated party on 26 August 2020.  Mr Ng said that this would affect the injunction application on his claim based on the tort of harassment.  Mr Chow for Ps told the Court that Ps had only found out over the weekend that Ds had moved out of Ds’ Premises.  Mr Chow said that this would throw his clients’ case in total disarray as they could no longer claim for any injunctive reliefs.

177.  I gave the parties time to take instructions from their respective clients and invited counsel to make submissions on the next day.

178.  After hearing submissions from counsel, I gave directions to Ds to file supplemental statement(s) on the particulars of this matter and to explain why this was not mentioned in their evidence.  I also gave leave for Ps to have the chance to reply to this matter by filing a supplemental witness statement in reply, if so advised.  I also directed Ds to make discovery of all relevant documents pertaining to this issue.  Lastly, I gave leave for Ds to recall their witness(es) to give evidence on this issue and to make Kwok and Chiu available for Ps’ cross-examination on the matter.

179.  In Kwok’s 2^nd Supp WS, filed pursuant to my directions above, Kwok set out the background and events leading up to the leasing out of Ds’ Premises.  She was recalled to give evidence on this matter on 30 September 2020 and was subjected to further extensive cross-examination by Mr Chow on behalf of Ps.  In contrast, Kwong decided not to provide any witness statement (as he was entitled to) even though he was given the opportunity to do so.  Nor did he return to Court to give evidence on the matters raised by Kwok in her latest supplemental witness statement. I note that some serious allegations were made against him in regarding to his behaviour in that statement.  However, Kwong chose not to answer them. 

180.  Chiu also provided a short supplemental witness statement in support his of his wife’s evidence on this issue.  He was also recalled to give the evidence on the matter and was subject to detailed cross-examination by Ps’ counsel.

181.  On balance, I accept Kwok’s evidence on this.  While the timing was unfortunate, I accept Ds’ explanation that their decision to put Ds Premises up for sale and for leasing since 2018 was due to the continuous unreasonable behaviour of Kwong. 

182.  In my judgment, it was reasonable for Kwok and her husband to consider getting out of the “whole situation of being constantly complained and under threats of harassment by (Ps)”.  This they had done since 2018 by sending photographs of Ds’ Premises to various estate agencies in the area.  They also instructed the agents that they only wanted serious potential buyers to visit Ds’ Premises.  Kwok also mentioned that her treating psychiatrist Dr Irene Chau had suggested to her that moving out of Ds Premises would eliminate some of the stress factors in her case.  I consider this as perfectly reasonable advice given by her psychiatrist having considered her medical history and mental health. 

183.  However, as Kwok has mentioned in her evidence, they have to face the dilemma of finding another suitable residence for her family and their financial constraints such as cost of renovation and so on.  It was not an easy decision for them to make. 

184.  From time to time, they had been contacted by different estate agents asking if they would consider letting out Ds’ Premises instead of selling it.  While their preference was to sell their apartment, they would not exclude the idea of renting it out at all.  This was especially done so since after Kwok has returned to Hong Kong with her children in July 2020. While her health condition had improved when she was in New Zealand, it got worst again since her return to Hong Kong as she was put back in the environment of constant conflicts which were mainly created by Ps.

185.  On 27 July 2020, an agent contacted Kwok and informed her that there was a potential tenant who was interested to rent their apartment.  The agent informed Kwok that the potential tenant really like their flat and had already signed the provisional tenancy agreement in order to show his sincerity.  The potential tenant also counter-offered a rental figure which was close to what they were asking for.  The agent asked her to seriously consider the offer and give her a reply within the next few days.

186.  Then, of course, the poking incident on 29 July 2020 happened as I have mentioned above.  Unsurprisingly, both Kwok and her husband began to feel concern about their own safety and that of their young family.  It was at that point that she felt they must move out of Ds’ Premises as soon as possible in order to protect their family and themselves.

187.  It was on the next day, ie 30 July 2020 that they informed the agent they would accept the offer from the potential tenant to lease out the Ds Premises for period of two years.  It was also on 30 July 2020 that they have signed the provisional tenancy agreement with the tenant.  The tenancy was to commence on 1 September 2020 for a period of 2 years.

188.  On 23 August 2020, at around 11:30 am, Kwok has bumped into Kwong at the lobby of their building.  Kwok felt that Kwong was looking at her in an aggressive manner behind his mask.  She felt scared as a result.  Hence, Kwok then contacted the agent to ask her to speed up the renting process.

189.  Not having heard from the estate agent, Kwok then booked a hotel room and stayed for the night on 24 August 2020 with her family while her mother-in-law went to stay with her sister-in-law and her husband.

190.  On 25 August 2020, Kwok and her family decided to go and stay with her younger sister who also lives in Mei Foo but in a different block.  That is arranged on a temporary basis so as to allow them to find a more permanent residence.  Kwok has confirmed that they have not leased or purchased any other property up to then.

191.  However, in the afternoon of the same day, she bumped into Kwong outside of her younger sister’s block on the ground level which was situated at a different direction as No 118.  After he saw Kwok, Kwong apparently walked to another direction which was not the direction leading to No 118.  Kwok was shocked to see Kwong at the downstairs of her young sister’s home.  The above incident was supported by a WhatsApp message sent by Kwok to her husband immediately after the event happened on the day.

192.  Eventually, the formal tenancy agreement was signed by Ds and the tenant on 26 August 2020.  On the next day, ie 27 August 2020, Ds delivered the keys to the tenant.

193.  As of the date of making Kwok’s 2^nd Supp WS in early September 2020, Kwok and her family were still staying at her younger sister’s place in Mei Foo.

194.  Mr Chow on behalf of Ps has made a big song and dance of this whole episode.  He accused the failure on the part of Ds to disclose this matter to the Court when they had the opportunity to do so was deliberate and intentional. He complained that this has led to the waste of the Court’s time and defeated Ps’ purpose in seeking an injunction against Ds.  Mr Chow submits that the latest twists to the case had practically turned the trial into a “costs only” event.  He claims that the non-disclosure of the signing of the lease was inexcusable and was a deliberate attempt to mislead Ps and the Court.

195.  I am afraid I do not accept Ps’ submissions on this at all.  Having heard Kwok and Chiu’s explanations in Court (which Mr Chow had the opportunity to cross-examine them both extensively), I accept their explanations that their vacating of Ds’ Premises was out of concern of protecting their family and to move away from the constant stresses and harassment caused by Ps.  I do not consider that both Kwok and Chiu had deliberately tried to withhold the information from the Court. 

196.  First, this trial was originally scheduled to last for only 4 days from 17 to 20 August 2020.  The signing of the formal tenancy agreement only took place on 26 August 2020 after Chiu had given evidence in Court on that day. Second, given the continuous harassment and unreasonable conduct on the part of Ps since Kwok and the children’s return from New Zealand in July 2020, it is in my view reasonable for Ds to consider moving out of Ds’ Premises in order to avoid any further confrontation or harassment from Kwong.  Third, I do not see a connection between Ps claim on injunctive relief and the requirement that Ds have to continue to stay in Ds’ Premises in order for Ps to succeed.  I would have thought the other way round is true. Now that Ps have successfully forced Ds to move out of their own apartment, they have achieved their aim of eliminating any alleged noise or vibration caused by them without obtaining an injunction from the Court.

197.  I think there may be a possibility that Kwok might have been too sensitive into thinking that Kwong was trying to “stalk” her after she had moved to her younger sister’s block.  Further, she might be oversensitive into thinking that Kwong was “starring” at her in an aggressive manner at the lift lobby on 25 August 2020.  However, given her mental condition and the constant stresses they had been placed under since 2016 by Ps, her responses are understandable.

198.  I note the fact that despite of all these serious allegations made against him under Kwok’s 2^nd Supp WS, they went completely unanswered by Kwong.  This is despite of the fact that he had been given the opportunity to file further evidence and to be recalled to give evidence in Court to do so.  After all, it was him who had started the complaints and the present proceedings against Ds.  After having raised the issue of Ds in suddenly moving out of their premises and made some very serious allegations against Ds in Court through their counsel in cross-examination when Kwok and Chiu were recalled to give evidence on the issue, Kwong then chose to keep silence on this matter and refused to deal with the very serious and specific allegations made against him.  To me, this is clearly unsatisfactory and undesirable.

199.  In the absence of any explanation given by Ps, I tend to accept Ds’ explanations on this issue. 

Chiu’s evidence

200.  Chiu has filed 2 short witness statements in this case which he has adopted as his evidence-in-chief.  They are his main witness statement dated 26 July 2019 (“Chiu’s WS”) and his supplemental witness statement dated 8 September 2020 in dealing with the issue of renting out of Ds’ Premises (“Chiu’s Supp WS”).

201.  Those 2 short witness statements were filed for the purpose of confirming and supporting the evidence of Kwok.  They did not add anything more than what have already been stated in Kwok’s various witness statements.  However, Chiu has made himself available to give evidence and corroborated his wife’s evidence in the following material aspects of their case:-

(1) he was the person who answered the nuisance’s calls made by Kwong through the intercom system on some of the occasions.  He confirmed the fear created amongst his household as could be seen from the video clips taken by the camera located inside Ds’ Premises and the reaction of his young children;

(2) that the poking incident which happened late July 2020 had created same kind of fear and concern for the safety of himself and his wife;

(3) On the occasion during one of the complaints made by Kwong to the Police after midnight in August 2018 after his whole family had already gone to bed, Chiu tried to follow the police officers to Ps’ Premises and speak to Kwong with view to resolve the matter. However, his attempt was flatly rejected by Kwong as a “counter nuisance”;

(4) The only reason why the main bulk of Ds’ evidence have come from his wife and not him in this case is due to fact that his wife spent more time at home while Chiu has a full time job outside working for an IT consulting firm;

(5) Being the head of the household, Chiu made the decision to move the family away from the constant complaints, threats and harassment caused by Kwong and/or Ps.  There was nothing sinister in his decision to rent out Ds’ Premises in order to protect his wife and children.

202.  All in all, I find Chiu is an honest and reliable witness.  I accept his evidence, including the evidence he gave when he was recalled on why they have decided to move out of Ds’ Premises in the middle of the trial.

(II) The Expert’s Evidence

Ir Ho’s Evidence

203.  In this case, Ir Ho, Ps’ expert, has filed the following reports:-

(1) Ir Ho’s 1^st Report, which was dated 1 December 2017, but revised on 23 January 2019 and 6 August 2019 (“Ho’s 1^st Report”)[32];

(2) Ir Ho’s 2^nd Report dated 19 December 2019 (“Ho’s 2^nd Report”)[33];

(3) Ir Ho’s 3^rd Report dated 17 July 2020 (“Ho’s 3^rd Report”)[34]; and

(4) Ir Ho’s and Dr Wong’s joint report (“the Joint Report”)

204.  First and foremost, Ir Ho accepts that he did not proffer any evidence in support of the claim for vibration nuisance.  Hence, Ps’ complaints on the vibration were unsupported by any independent or expert evidence.

205.  The main thrust of Ir Ho’s expert evidence concerns the following aspects in relation to noise nuisance:-

(1) The monitoring tests carried out by Ir Ho;

(2) The simulation test carried out by Ir Ho;

(3) The noise allegedly emanating from Ds’ Premises carries significant low frequency components, which can cause additional annoyance to Ds;

(4) Ir Ho’s other observations in relation to the mats and floor tiles inside Ds’ Premises.

206.  The dates of the tests conducted by Ir Ho are summarized as follows:-

Date / Time	Conducted by:	Conducted at:	Reference
Monitoring Tests
25 August 2017 – 31 August 2017 12 September 2017 – 14 September 2017	Ir Ho	Flat 10D	Ho’s 1st Report[35]
25 August 2017 – 1 September 2017 13 September 2017 – 15 September 2017 (from 4 pm to 1 pm the next day) (collectively referred to as “the 2017 Monitoring Test”)	Ir Ho	Flat 10D	Ho’s 1st Report [36]
29 November 2019 – 1 December 2019 (from 10 pm to 2 am) (“the 2019 Monitoring Test”)	Ir Ho	Flat 10D	Ho’s 2nd Report [37]
29 June 2020 – 3 July 2020	Ir Ho (and Dr Wong)	Flat 10D and 11D	The Joint Report[38]
Noise Simulation Tests
29 June 2020	Ir Ho	Flat 10D and Flat 11D	Ho’s 3rd Report [39]

Ir Ho’s independence as an expert

207.  The main problem I have with Ir Ho’s evidence is that I do not think he is a totally independent expert witness, in the true sense of the word. 

208.  Not only he was directly approached and appointed by Kwong to prepare his first report, he had done so on the specific instructions from Kwong “to get evidence of the intrusive noise was significant”[40].

209.  Ir Ho admitted that the report was made pursuant to Kwong’s request and no lawyer was involved and it was not pursuant to any court directions.  Hence, Ir Ho himself had defined the scope and criteria of what should be included in this report himself.  He did not think it was a problem because at that time he did not know that this report would be “put forward to (sic) a court case”. 

210.  He admitted that in this report he tried to tell Kwong that “the number of noise events are not many”. However, he had been asked by Kwong to make changes to his report after face to face as well as telephone discussions with him.  Ir Ho said that Kwong had repeatedly told him every time they met that the low frequency noise was very annoying and his report did not reflect this.

211.  Ir Ho frankly admitted this was how Kwong had influenced him and caused him to go through the WHO Guidelines and tried to find a way to “quantify the effects of the low frequency events”.  When asked by the Court how often did Kwong make such requests for him to change his report, he answered “almost every time he detected the noise annoyance”.  He said that this was before any lawyer was involved on Ps’ side.  He only found out that this report would be used as a basis of starting legal proceedings against Ds before he made the 1^st revision to the report.  He admitted that while the revision requests might have come from Kwong and the solicitors, he still had had direct contact and communication with Kwong.

212.  In my judgment, it is clear that the contents, directions and the findings in Ir Ho’s 1^st Report was directly and heavily influenced by Kwong.  Not only it was prepared for and paid directly by Kwong, the contents were revised and changed pursuant to the directions of Kwong.  It was written with a clear objective in mind, ie to find evidence to support Ps’ claim that the “intrusive noise was significant” as Ir Ho has admitted in his oral evidence. 

213.  Unfortunately, when an expert has been unduly influenced by his lay client, as in Ir Ho’s case here, it will taint the quality of his own opinion as the Court do not know how much of the expert’s opinion is truly his independent views, based on his own expertise and experience, and how much of it was dictated or directed by his lay client.  Under such circumstances, the Court should be slow in accepting the opinion from such an expert.          

214.  Nevertheless, I shall examine Ir Ho’s evidence here and try to explain why I would reject his expert opinion and prefer that of Dr Wong’s.

The Monitoring Tests show that there is no violation of the applicable standard set by the WHO Guidelines

The WHO Guidelines and the Roger Tam Case

215.  In essence, according to Ir Ho, the purpose of the Monitoring Tests was to measure the level of background noise at Ps’ Premises and the level of abrupt noise events allegedly coming from Ds’ Premises. 

216.  In order to identify those noise events, Ir Ho said he had simultaneously recorded data of both noise and vibration.  Ir Ho claimed that he only selected those time points where the “noise peak” coincides with the corresponding “vibration peak”, and then identified them as noise events coming from Ds’ Premises.

217.  The WHO Guidelines for Community Noise (1999, World Health Organization, Geneva) (“the WHO Guidelines”) stated the following at page 28[41]:-

“For a good sleep, it is believed that indoor sound pressure levels should not exceed approximately 45dB LAmax more than 10-15 times per night (Vallet & Vernet 1991), and most studies show an increase in the percentage of awakenings at SEL values of 55-60dBA…”

218.  In Ho’s 1^st Report, Ir Ho claims that there were 403 noise events recorded during the 2017 Monitoring Test.  Also, there were 403 noise peaks which exceeded 45 dBA.  On that basis, he concludes there was noise nuisance from Ds’ Premises.

219.  In cross-examination, Ir Ho accepted that he had previously acted as a defence expert witness in Tam Wai Cheung Roger & Anor v Goodwell Property Management Limited (Unreported, DCCJ 2262/2013, 11 January 2016)[42]. He accepted that the aforementioned WHO standard is subject to the qualification set out at §36 of the judgment of Roger Tam:-

“Further, the WHO Guideline recommended that the level of the background noise should be 30dB(A). Dr Chan also accepted that in theory, if the background noise is higher than 30dB(A), the acceptable noise level of any sudden increase should be higher than 45dB(A). It follows that the acceptable noise level for any sudden increase in noise could be up to 15dB(A) above the background noise.” (“the Roger Tam Qualification”)

220.  Ir Ho further accepted that, in Roger Tam, the Deputy Judge there had relied on Ir Ho's evidence in accepting the Roger Tam Qualification as a qualification to the WHO standard.

221.  Hence, by applying the WHO standard and the Roger Tam Qualification, there are only 7 noise events which has a net amplitude^[43] of 15dB(A) or above.

222.  Likewise, in the 2019 Monitoring Test, whilst Ir Ho claimed that he had identified 38 noise events (with maximum noise level exceeding 45dBA), in truth there were only 3 noise events if one applies the WHO standard with the Roger Tam Qualification: only 3 noise events carries with them a net amplitude of more than 15dB(A).

223.  Mr Chow’s submits that it was wrong for Ds to hold Ir Ho to agree the Roger Tam Qualification as it was not what Roger Tam had articulated nor what Ir Ho had accepted in his evidence[44]. Ps submit that if one reads the cited paragraph of Roger Tam in its proper context, it actually never stated that 15dB(A) was the constant which was required for identifying unacceptable noise in a noisy background environment.  Mr Chow submits that “could be up to” 15dB(A) is quite different from the proposition now made by Ds.

224.  I am afraid I do not agree with Mr Chow.  In my judgment, it cannot be right for Ir Ho to simply adopt 45dB(A) without taking into account of the noise level generated by the background noise.  In my view, by simply adopting a threshold of 45dB LAmax without taking into account of the background level of noise is plainly against the WHO Guidelines.  At the very least, I would expect Ir Ho to identify what would be his definition of the acceptable background noise in this case if it was not at 30dB(A) mentioned in Roger Tam.  If he thinks that the Roger Tam Qualification does not apply in this case, then he should stay what dB(A) should be adopted.

225.  In the Joint Report, Ir Ho tried to maintain his stance that the WHO Guidelines has been violated by changing the measurement basis of the background noise from “Leq” (ie average sound energy over a definite period of time, which measurement parameter if used, will give a higher figure for the background noise) to “L90” (ie sound energy for 90% of the time over a definite period of time, which measurement parameter if used, will give a lower figure for the background noise).  Ir Ho says that by measuring the background noise with “L90” as the measurement parameter, the background noise for the 2017 Monitoring and 2019 Monitoring would be lower than 30dB(A), thereby asserted that the Roger Tam Qualification does not apply.  

226.  I agree with Mr Ng that this is plainly misleading.  With respect to Ir Ho, the WHO standard of 30dB(A) is measured by the parameter of Leq, not L90.

227.  Mr Chow tries to downplay this in his closing submissions by saying that the actual context when Ir Ho raised this issue in the Joint Report was when he was criticizing Dr Wong’s opinion rather than upholding any such parameter to his own methodology/analysis[45]. With respect, I do not share that view at all.  In fact, L90 was used by Ir Ho in answer to a question to the court when he was asked where about in his report it showed that he had mentioned this measurement.  He confirmed that he had not mentioned it in the tables of Ir Ho’s 1^st Report.  He agreed with Mr Ng’s suggestion under cross-examination that at §8.1 of Ir Ho’s 1^st Report where he quoted the WHO Guidelines, only “30 dB LAeq” was mentioned and nowhere in his report said L90 should be used to measure or monitor the bedroom background noise.

228.  Thus, I consider it would be appropriate to apply the WHO Guidelines with the Roger Tam Qualification when determining whether the noise events found by Ir Ho actually exceeded the acceptable limits.  

Ir Ho's biased selection of “noise events”

229.  Ir Ho claimed that he had identified the noise events by selecting those “noise peaks” which coincide with a “vibration peak” at the same point of time.  According to Ir Ho, theoretically, if a noise event has emanated from Ds’ Premises, the timing of the vibration sensed from the ceiling at Ps’ Premises and the noise recorded will coincide.

230.  Upon closer examination of the data presented in Ir Ho’ 1^st Report, it is revealed that the so-called noise events selected do not have “noise peaks” coinciding with the corresponding “vibration peaks”.

231.  Whilst the noise data and the vibration data are logged at 0.1-second intervals, such raw data is not disclosed to Ds or to the Court, despite the repeated demands and requests by Ds’ solicitors[46].

232.  In his closing submissions, Mr Ng gave the following example of how an alleged noise event does not have the characteristics of the noise peak coinciding with the vibration peak.  This can be seen at the graph entitled “Noise Event at 0000-0030 on 27 August 2020 at Bedroom”[47]. It is observed that:-

(1) The time intervals presented in the graph was at 32-seconds intervals, as opposed to 0.1-second intervals;

(2) The vibration peak at 00:00:32 does not coincide with the noise peak 00:00:40. Yet, Ir Ho still counted as a “noise event”.

233.  When cross-examined on this, Ir Ho said he had made a mistake but he could not account for the cause of this mistake.  He was unable to provide any explanation for this.

234.  Further, I agree with Mr Ng that there are apparently unexplained interferences in the data collection process[48]:-

(1) At point of time 00:11:44, there was a large vibration peak, but there is no noise recorded;

(2) Conversely, at point of time 00:16:32, there was huge noise peak, but there is no vibration.

235.  None of these anomalies is explained by Ir Ho in all of his reports.  I accept Mr Ng’s submission that there are apparently human interferences in the data collection process inside Ps’ Premises during the 2017 Monitoring Test and the 2019 Monitoring Test.  I agree that one plausible explanation is that the automatic switching of the thermostat of the air-conditioners, or even human tempering with the data collection devices, had caused the unexplained anomalies in the data collected.  However, I do not have to speculate on the cause(s) of those unexplained interferences save to say that it would not be safe to rely on them to find a case of noise nuisance, let alone to find that those noise events must have come from Ds’ Premises.  

236.  Based on the aforesaid, I find that the Monitoring Tests are not reliable evidence at all.  It does not serve the purpose of proving any noise events, let alone noise nuisance.

The data in Ho’s 1^st Report was amended without explanation

237.  Ir Ho amended Ho’s 1^st Report twice without giving any valid explanation for the amendments.  Whilst he stated under cross-examination that some of these mistakes were “copy-and-paste” errors, he did not explain where exactly those “data” was copied from.

238.  What concerns me is that Ir Ho saw fit of making changes to Ho’s 1^st Report twice without informing or alerting the Court.  These changes were only discovered at a late stage by Ds’ solicitors.  I accept Mr Ng’s submission that the 2 track-changes versions of Ho’s 1^st Report (prepared by Ds’ solicitors, and accepted by Ir Ho in cross-examination as being an accurate track of Ir Ho’s two-rounds of amendments to Ho’s 1^st Report”), demonstrates that Ir Ho would:-

(1) Add data into the later versions of Ho’ 1^st Report when those data was absent from the original version;

(2) Delete data from the later versions of Ho’s 1^st Report, when those data was there in its original version;

(3) Change the description of the data arbitrary.

239.  I agree that this is plainly unacceptable conduct on the part of Ir Ho as an expert witness.  Perhaps this was due to pressure coming from Kwong or they were made after discussions with Kwong.  It really does not matter as it is clear that the data relied on by him to establish the noise events has been contaminated and manipulated.   On this alone, I will reject Ir Ho’s evidence.

The Simulation Test not a meaningful exercise conducive to prove noise nuisance

240.  Ir Ho confirmed in cross-examination that the purpose of the Simulation Test is to reconstruct the activities that have given rise the “noise event data” collected in the 2017 Monitoring Test and the 2019 Monitoring Test.  Ir Ho’s theory is that, if the “simulated activities” in the Simulation Tests are able to re-create noise level and vibration level similar to those which were recorded in the 2017 and 2019 Monitoring Tests – then Ds must have been carrying out activities which are similar to those “simulated activities” at the time of the 2017 and 2019 Monitoring Tests.

241.  I agree with Mr Ng that Ir Ho’s theory which underlies the Simulation Test is flawed since:-

(1) The Simulation Test pre-supposes that the noise and vibration data collected from the 2017 Monitoring Test and 2019 Monitoring Test are in fact due to noise events from Ds’ Premises;

(2) The fact that the test-taker in the Simulation Test can “re-create” data with the “simulated activities” does not prove that the “simulated activities” are the only possible cause of the noise and vibration recorded in 2017 Monitoring Test and the 2019 Monitoring Test;

(3) Ho’s 3^rd Report does not disclose the raw data of the “simulated activities” – it does not even mention how many test-runs are conducted before a specific reading of noise level is recorded into the table presented in the Ho’s 3^rd Report[49];

(4) The test-taker performs those simulated activities without detailing how those simulated activities were carried out and the experimental conditions for each of the simulated activities test-run[50]; and

(5) The fact that the simulated activities were carried out both on a mat, and without a mat, has no bearing whatsoever with whether the mat exists inside Ds’ Premises in any point of time.

242.  In my judgment, the Simulation Test is not a meaningful exercise at all. 

Ir Ho’s accusation that the noise created by Ds have significant low frequency components is unfounded

243.  Ir Ho accused Ds of having made noise which contains low frequency components.  Ir Ho says that the low frequency components bring about an escalated annoyance effect on Ps. 

244.  As admitted by him at the end of his evidence and in answer to questions put to him by the Court, he was specifically asked by Kwong to find evidence for the alleged “low frequency noise” heard by him.  Ir Ho had to make several revisions to his draft in order to “find” such evidence as directed by Kwong.  Hence, whatever Ir Ho says in his reports regarding low frequency noises must, in my view, be seen in such light.   

245.  I find Ir Ho’s opinion on this matter unsafe and unreliable for the reasons identified by Mr Ng in his closing submissions:-

(1) As pointed out in the Leventhall Article, the source of low-frequency noise are often ventilation systems, fans, and similar infrastructure in the surrounding environment, etc[51].  Low frequency noises do not come from neighbour activities at all.  Ir Ho is clearly aware of this scientific fact – since he had also cited the Leventhall Article in support of his propositions;

(2) Ir Ho accepts refrigerators, air-conditioners and ventilation fans inside a flat can be the sources of low frequency noise;

(3) The significance of the difference between dB(C) and dB(A) value of noise breaks down in a low noise level environment.  In a quiet environment, both low and high frequency components of the noise become inaudible[52].

(4) Contrary to the recommendation by the WHO[53], Ir Ho accepts that he never performed any further frequency anaylsis even though he takes the view that the differences between the dB(C) and the dB(A) recorded in the 2017 Monitoring Test and the 2019 Monitoring Test is large.

246.  I would reject Ir Ho’s evidence in relation to this false accusation that Ds’ Premises has the capability of making low frequency noise and for such low frequency noise to be transmitted to Ps’ Premises.

Ir Ho’s miscellaneous comments about the mats in Ds’ Premises and its floor tiles

247.  Ir Ho is not qualified to make these comments as an expert witness.

248.  Ir Ho has no basis to assume that the mats have “no wear and tear” just by the observations with his naked eyes.  His dogmatic assertions that the mats are newly added to the floor of Ds’ Premises are groundless.

249.  In absence of any testing on the noise absorption ability of the floor tiles, Ir Ho has no basis to say the floor tiles in Ps’ Premises has better sound absorption ability than those which are laid on the floor of Ds’ Premises.

Dr Wong’s evidence

250.  Given the fact that I have rejected Ir Ho’s opinion, I shall briefly discuss with Dr Wong’s opinion here in order to explain why I prefer his evidence than that of Ir Ho’s.  

251.  Dr Wong has filed the following expert reports in the present proceedings:-

(1) Dr James Wong’s Expert Report dated 13 September 2019 (“Dr Wong’s 1^st Report”)[54];

(2) Dr James Wong’s Expert Report dated 16 January 2020 (“Dr Wong’s 2^nd Report”)[55];

(3) Dr James Wong’s Expert Report dated 17 January 2020 (“Dr Wong’s 3^rd Report”)[56];

(4) Dr James Wong’s Expert Report dated 17 July 2020 (“Dr Wong’s 4^th Report”); and

(5) The Joint Report.

252.  Wong’s 1^st Report made the following points:-

(1) The Monitoring Test carried out by Ir Ho has errors in its setup when data was being collected[57];

(2) The Monitoring Test carried out by Ir Ho does not serve as proof that sound emanating from Ds’ Premises  would propagating into Ps’ Premises[58];

(3) There are unexplained interferences in the data collected and biasedness in the choice of noise peaks[59];

(4) Low frequency noise only affects the human ear when the noise level is high[60].

253.  Dr Wong’s 2^nd Report made the following point about the meaning of the difference in value between dB(C) and dB(A)[61]:-

“The conclusions on the correlations of (dBC — dBA) difference and annoyance are that the difference is of limited value, but when the difference exceeds 15dB, an addition of 6 dB to the A-weighted levels is a simple rating procedure. However, this approximation breaks down when the levels are low, since the low frequencies may then be below threshold. The (dBC — dBA) difference cannot be used as an annoyance pedictor but a simple indicator of whether further investigations may be necessary.” (emphasis added)

254.  Dr Wong’s 3^rd Report made the following points[62]:-

(1) The sudden increase in ambient noise and vibration occurred regularly at late nights in units adjacent and below Ds’ Premises.  There are multiple ambient noise and vibration sources around Ds’ Premises.

(2) The noise heard in Ps’ Premises cannot be conclusively linked to Ds’ Premises.

255.  The first three reports of Dr Wong focus rebutting the points made by Ir Ho is the latter’s reports.  It was not until Dr Wong’s 4^th Report that Dr Wong had a chance to conduct his own tests.  The tests conducted by Dr Wong are as follows:-

Date and Time	Conducted by:	Conducted at:	Page Reference
Monitoring Tests
10 January 2020 – 14 January 2020 (from 10 pm – 2 am)	Dr James Wong	Flat 11D	[II/C/459]
30 June 2020 – 3 July 2020	Dr James Wong	Flat 10D and 11D	[II/C/514 (38) §2.2.1, 514(39)]
Heel Drop Test
3 July 2020	Dr James Wong	Flat 11D	[II/C/514 (38) (44) §2.2.1]

256.  The monitoring test conducted by Dr Wong measures the noise inside Ps’ Premises in different scenarios and compare these scenarios[63]:-

(1) Both Ds’ Premises and Ps’ Premises are empty (1 July 2020)

(2) Ds’ Premises is empty but Ps’ Premises is occupied (2 July 2020)

(3) Both Ds’ Premises and Ps’ Premises are occupied (3 July 2020)

257.  The results of Dr Wong’s monitoring test show that the background noise of both the living room and the bedroom inside Ps’ Premises are not affected by whether their flat is occupied.  More interestingly, there are more noise events recorded in Ps Premises’ master bedroom on 2 July 2020 (when Ds’ Premises was empty), than when both flats are occupied (3 July 2020).  In any event, Dr Wong opines that the noise events inside Ps’ Premises is most likely caused by the intermittent switching of the air-conditioner inside Ps’ Premises[64].

258.  The heel drop test was carried out way of asking the test-taker (a man who weighs 75kg) to use his body weight to stomp on the floor of Ds’ Premises with his foot.  The conclusion drawn from the heel drop test was summarized as follows[65]:-

“Heel drop test result indicated that it [is] possible for an adult in Flat 11D to excite the floor slab by stomping at the centre (sic) area of living room, causing the floor to resonance and generate a noticeable level of noise to living room of Flat 10D. But the noise impact would not be noticeable in the bedroom and master bedroom in Flat 10D. Considering one would seldom stomp at a particular location and no countable increment in noise level can be observed in the monitoring results, there should be very few, if not 0, disturbances generated by Flat 11D.”

259.  Dr Wong’s part of the Joint Report generally rebuts the points made by Ir Ho and provides a helpful summary of the above significant points.

260.  I prefer Dr Wong’s comments and conclusions contained in his various report as I find his methodology and approach much more objective and scientific.  More importantly, I find that his opinion are not bias and tainted by the wishes of his lay clients as in the case of Ir Ho.

Ps’ criticisms on Dr Wong’s opinion

261.  Mr Chow in his final submissions has made the criticism that Dr Wong’s evidence is ultimately of not much assistance to the Court in resolving the underlying disputes in this case.  He submits that Dr Wong is more interested in attacking Ir Ho’s findings rather than sticking to his role of identifying or verifying whether noise had emanated from Ds’ Premises.  He further criticizes Dr Wong for not collecting the data personally himself but relying on others in his company to do so.  Mr Chow also casts doubts on whether Dr Wong did visit Ds’ Premises on the occasions as he had stated in his reports.  Comments were also made on the fact that Dr Wong’s observations on the increase on the playmats inside Ds’ Premises somehow could be looked at adversely on Ds’ credibility, namely, they had increased the numbers as well as the thickness of the playmats after Ps issued the Injunction Summons.

262.  With respect to Mr Chow, all the above matters are trivial and peripheral to the main issues in this case.  In my view, the main crux of this case when it comes to the expert evidence is whether it is safe to rely on the data collected (and hence the findings drawn therefrom) by Ps’ expert Ir Ho.  After all, the burden of proof lies with Ps at all time.  They have to prove that the noise which allegedly came from Ds’ Premises was over and above the normal level of noise emitting by an ordinary and natural average household with young children in a neighbourhood like Mei Foo.  It is not for Ds or their expert to prove anything at all.  Hence, in my view, it is totally legitimate and proper for Dr Wong to focus on identifying and attacking the underlying weakness and unreliably of Ir Ho’s opinions.

263.  I have already analysed Ir Ho’s opinion in some details above and explained why I consider his opinions are not reliable.  I shall not repeat them here.  However, in my view, this case is not about the competition between the 2 experts’ different opinions or their methodologies or even ultimate findings.  This case is about the repeated noise nuisance allegedly and subjectively experienced by Ps. Thus, it is those complaints that the Court should focus on rather than any “recreated” noise like the monitoring tests and heel tests carried out by the experts.    

264.  One thing perhaps is worth to remember here. Sound/noise is always a one off event.  One cannot “recreated” the exact noise after the event.  Thus, unlike in water leakage or land dispute cases, the role of the experts in a noise nuisance case is limited in that it would be difficult if not impossible to “re-create” the same sound or noise subjectively heard by the person or persons who complained of the nuisance.  The best they could do is to collect data and analyse those data according to their methodology.  However, in each case, the more important part of the evidence in my view must be those come from the complainants and the independent observers (like staff from the Management Office or the Police or nearby neighbours) at the time when those complaints were made.       

(III) Findings on the Issues in Dispute

265.  Based on the aforementioned discussions and the findings of which I have made on the various factual issues, I now turn to answer the issues the Court has been asked to resolve in this case.

Issue 1: Whether the noise and vibration emanating from Ds’ Premises are unreasonable that it amounts to a tort of private nuisance?

266.  Based on my analysis of the evidence above, I do not find there was any excessive or unreasonable noise and/or vibration coming from Ds’ Premises.  I find whatever noise that may have come from Ds’ Premises, they were no more than what should be considered as reasonable, ordinary and natural for a normal young family like Ds’.  They originated from the ordinary usage and household activities like any other average family in Hong Kong. They commensurate with the general environment and character of neighbourhood of Mei Foo.

267.  I therefore find that Ps have failed to prove their case based on the tort of private nuisance. 

Issues 2 & 3: Whether Ds have breached Clause 9(1)(iii) of the DMC?

268.  Since I have found against Ps on most of the factual issues and have rejected the expert evidence put forward by Ps’ expert, I do not consider there is sufficient evidential basis for Ps to argue that there is breach of Clause 9(1) (iii) of the DMC.

269.  I find there was no evidence to support Ps’ plea that Ds had created “unnecessary noise” or might have created a “nuisance or annoyance” to Ps.

270.  I therefore will dismiss Ps’ claim based on the breach of Clause 9(1)(iii) of the DMC.

Issue 4:  Whether the “prank calls” made by Kwong amount to the tort of harassment, the tort of trespass or tort of nuisance   

271.  Since Ds no longer rely upon the breach of provision in the DMC as a cause of action against Kwong for the nuisance calls made, I do not have to deal with this.

272.  However, based on the above factual findings, I have to decide whether the 6 “prank calls” made by Kwong to Ds’ Premises would amount to: the tort of harassment and/or the tort of trespass and/or the tort of nuisance.

Tort of harassment

273.  After a slow start from the position where the courts in Hong Kong did not recognize the tort of harassment as an independent and actionable tort back in 2002: (see 朱祖永 訴 香港警務處, unreported, HCMP 1676/2002 (27 September 2002; Cheung JA & Yuen JA; [2002] HKCA 5032), to the time in Wong Tai Wai David v The Hong Kong SAR Government, unreported, CACV 19/2003 (7 September 2004; Yuen JA & A Cheung J) where the Court of Appeal stated that whether a tort of harassment existed was still debatable or it should be treated as part of the tort of intentional/reckless infliction of harm or injury in common law (see §§23-35), until the tort was finally recognized in Etacol (Hong Kong) Limited & Others v Sinomast Limited & Others, unreported, (19 January 2007; DHCJ Carlson) where damages for tort of harassment was granted but without any discussion of the principles as to what would constitute to the tort.

274.  Then in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, Anthony Chan J has succinctly set out the rationale behind and the elements required in order to fulfill the criteria to establish the tort of harassment: see §§56-66 at pp 1206-1209.

275.  However, the development of the tort then took a detour in Hong Kong when Deputy High Court Judge Linda Chan SC (as she then was) decided in Pong Seong Teresa & Others v Chan Norman & Another [2014] 5 HKLRD 60 (HCA 627/2010 & HCA 726/2011, 13 August 2014, DHCJ Linda Chan SC) that the tort of harassment did not exist in Hong Kong.  The learned judge felt that she was bound by the Court of Appeal’s decision in 朱祖永. While she acknowledged the decision of Lau Tat Wai, surpa, but set out her reasons as to why she thought that case was wrongly decided (see §60 of her judgment).

276.  Then in Lin Man Yuan v Kin Ming Holdings Limited and Another, HCA 216/2008, unreported (3 June 2015; Lok J), where in a contractual dispute where the defendants had tried to scare off the plaintiff in pursuing the case by making multiple phone calls and unsolicited visits to the plaintiff’s office through their agents to threaten him, the Court found that when a defendant satisfies the requirements for the tort of intimidation, the discussion on the tort of harassment will become academic. However, significantly, Lok J opined that the learned judge in Pong Seong Teresa, supra, was mistaken in the belief that she was bound by 朱祖永:  (§219).

The Court then followed the decision of Anthony Chan J in Lau Tat Wai and found that such tort exist in common law. It was said that the tort of harassment should exist “to protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds”: (see §220). However, he is of the view that “(S)o long as there is intention to inflict harm on the victim, there should be no difference between damages caused by a physical act of violence or a series of harassing conducts.” (§220).

277.  In Law Lai Kwan v Intrend Finance Ltd [2017] 4 HKLRD 1, Deputy Judge Daniel Tang adopted the decision of Lok J in Lin Man Yuan   but made no distinction between the tort of harassment and intimidation in the judgment.

278.  Perhaps the most helpful statement in the development of the tort of harassment in Hong Kong can be found in M.A. (HK) Limited & Another v Yeung Yuk Sing & Others, unreported, HCA 1641/2010 (31 October 2017; DHCJ Marlene Ng (as she then was). The plaintiffs in that case claimed private nuisance and harassment against the defendants, who had both through themselves and through their agents attempted to trespass onto the plaintiff’s premises and posted “wanted person” posters at the plaintiffs’ premises.  As the plaintiffs cannot rely on the tort of private nuisance due to the fact that they are not neighbours, they can only rely on the tort of harassment in that case.

279.  The learned judge has at §64 of the judgment set out the following:

“64. Harassment There has been some previous controversy over the tort of harassment in view of divergent/conflicting local authorities. Lok J in Lin Man Yuan v Kin Ming Holdings International Limited & anor[66] summarised the conflicting authorities and agreed with A Chan J in Lau Tat Wai v Yip Lai Kuen Joey[67] that the tort of harassment exists in HK. In Lam Yuk Wing v Yu Lai Wa, I respectfully agreed with A Chan and Lok JJ.[68] The elements of the tort of harassment explained by A Chan J in Lau Tat Wai and summarised by Lok J in paragraph 222 in Lin Man Yuan are as follows:

“(i) ‘harassment’ means a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person [at §62];

(ii) the mental element required is reckless as to whether the victim would suffer injury from the defendant’s conduct [at §65]; and

(iii) the plaintiff must have suffered damage as a result of the harassment; anxiety would suffice, though the defendant must take the victim as he finds him; financial loss is also recoverable [at §§66-69].”

280.  Given the above developments, I am of the view that the tort of harassment must now be considered as recognized and firmly rooted in Hong Kong. In my view, as long as a person can establish the elements set out by Anthony Chan J in Lau Tat Wai as summarised by Lok J in Lin Man Yuan at §221 and set out by DHCJ Marlene Ng (as she then was) in M.A. (HK) Limited above, he is entitled to claim reliefs from the court.     

Whether Ds have established the elements for tort of harassment?

281.  Ds’ claim for harassment was based on the plea of the “prank calls” made by Kwong via the intercom system starting from around June 2018 which was continued onto July 2018: see §15 of AD&CC.   This was confirmed by Kwok in her evidence when she stated that it was in around June 2018 that she began to receive “frequent and repetitive” prank calls through the building’s intercom system: see §43 of Kwok’s WS.  Her evidence on this has been supported by her husband.

282.  Ds originally thought that the intercom system was broken and had asked the Management Office to check it for a few times.  Since they could not find any fault with the system, Ds started to take down the date and time of calls in order to trace the identity of the callers from the CCTV footage.  Eventually they were able to trace 6 of those calls from the Management Office’s CCTV records. 

283.  Thus, Ds’ claim was not confined to the 6 “prank calls” recorded by the CCTV from 12 to 16 July 2018 only. 

284.  In his evidence, Kwong admitted that he had made similar calls to Ds’ Premises besides those 6 calls although he did not say on how many occasions. 

285.  Based on Ds’ evidence, I find that Kwong had in fact made frequent and repeated “prank calls” via the intercom system to Ds’ Premises by using the same modus operandi since June 2018.  It only stopped on 16 July 2018 after Ds reported the matter to the Police.

286.  As I have found above, these “nuisance calls” were made with the sole aim to scare and/or to frighten Ds and their family.  Judging by the startled response of the occupants in Ds’ Premises when they received those calls, I further find that Kwong knew or reasonably ought to know that these repeated and frequent actions or conducts would cause worry, emotional distress or annoyance to Ds and their family members.

287.  I further find that when Kwong made those repeated and frequent nuisance phone calls in June and July 2018 (including the 6 occasions when he was captured by the CCTV), he was reckless as to whether his victims would suffer injury, including mental or psychological damage, from his conduct.

288.  Last but not the least, I consider the treatment records produced by Ds on Kwok’s consultation with Dr Irene Chau show that she had been receiving psychiatric treatments (including medication) since the beginning of 2018 and continuing at least until October 2018 when the report was written. This goes to support Ds have suffered damage as result of Kwong’s harassment.   Besides, both Kwok and Chiu told the Court in their evidence of the mental distress and anxieties that these nuisance phone calls had caused to them and their family members. I accept their evidence in this respect.

289.  As a party must take the victim as he finds him, I find Ps should be made liable for the damage caused to Ds, in particular Kwok, resulting from the harassment.

290.  For the avoidance of doubt, I accept Mr Chow’s submissions that the Court should not take into account and the possible effects of the “poking incident” which happened in July 2020 as it is not a matter which had been pleaded and a matter relied on by Ds for their claim for harassment.

Tort of trespass / tort of nuisance

291.  Strictly speaking, these are separate torts which involve different elements for a claimant to establish.

292.  Given my findings under the tort of harassment, there is no need for me to make separate findings under these heads.  However, for the sake of completeness, I would like to add that I would have found a case of trespass / international or reckless infliction injury against Ps as well as nuisance also. 

Whether there should be a grant of an injunction to restrain Kwong from making er prank calls?

293.  Given the fact that Ds have already moved out of their flat at the end of August 2020, the injunction relief sought for by Ds under the counterclaim will now become academic.  I do not propose to deal with it.

Issue 5: Quantum and whether the Court should make an award of aggravated and/or exemplary damages against Kwong

294.  Whilst each case turns on its own facts and the case law in the area of the tort of harassment has not been well developed and hence there are not many cases can be used as reference, I consider the general rules of damages will apply.  The victims of the harassment will be entitled to general damages once they are able to establish the tort.  Special damages like financial loss or medical expenses is also recoverable provided evidence is available to prove them.  In appropriate cases, aggravated and/or exemplary damages may be awarded also provided that a claimant can meet the strict criteria for making those claims: see Wong Kwai Fun v Li Fung [1994] 1 HKC 549 at 581E, per Woo J (as he then was).

295.  While I find the “prank calls” were made with malicious intent with the intention of causing fear and anxiety to Ds and their family, I do not think this is worst kind of behaviour when comparing with the acts mentioned in the other cases cited above under the discussion of harassment.  At least they did not come with any intimating words, foul language or threats of violence.  Also, there is no direct evidence to show that Kwong knew that there would be young children living at Ds’ Premises although I think he must have known or ought to have known. I cannot however say that he did those acts with the intention to scare the children eventhough they had that effect.

296.  Taking all the circumstances into account, I do not consider that an award for aggravated and/or exemplary damages will be appropriate in this case.

297.  I consider an award of general damages in the sum of HK$100,000 will be appropriate. I so award this sum as general damages under the tort of harassment.

CONCLUSION

298.  In conclusion, I shall dismiss Ps claim against Ds, including the Injunction Summons. 

299.  I shall enter judgment in favour of Ds on their counterclaim with an award of general damages of HK$100,000 under the tort of harassment with interest at half of the judgment rate from the date of filing of the AD&CC on 11 February 2019 until the date of judgment, thereafter at judgment rate.

Costs

300.  Costs will follow the event.  There is no doubt that Ps who have lost the main action and Ds’ counterclaim will have to pay for the action and the costs of Ds in defending the case and making the counterclaim.  They also will have to pay for the costs of the Injunction Summons which I consider had been taken out prematurely and without any sound evidential foundation. 

301.  There is no doubt in my mind that this whole case, including the 14-day trial, could have been easily avoided had Ps, in particular Kwong, acted in a more reasonable and amicable manner. The fact that he had steadfastly refused to even speak to Ds from day one to inform them what his complaints were about; refused to accept the objective findings made by independent third party like the Management Office and the Police; refused to undergo any mediation or negotiations; escalated the disputes between the parties by making the “prank calls”; and making an injunction application when there was hardly any change of circumstances to justify them to do so, mean that a lot of costs, time, energy of the parties and the precious judicial resources are consumed and wasted as a result. No doubt it has also caused a lot of unnecessary distress and stress amongst all parties concerned.

302.  While a litigant is entitled to bring a genuine dispute to court for trial, he is not entitled to abuse the system by bringing a claim that has little chance of success and one which he has refused to resolve by alternative dispute resolutions like mediation, without prejudice meetings and negotiations, etc. first. This will go directly against the underlying objectives of the CJR. When a party does that and fails in his case, the Court is entitled to take those matters into account when dealing with the issue of costs. In those circumstances, the Court should impose a more stringent costs order in order to mark its disapproval and discourage similar actions in future.

303.  Hence, I will make an order that Ps shall pay the costs of the action, including the costs of the Ds’ counterclaim and the Injunction Summons, on an indemnity basis, such costs to be taxed if not agreed, with certificate for counsel.

304.  The above costs order is made on a nisi basis and the same will become absolute in the absence of any application from the parties to vary the same within 14 days from the date of handing down of the judgment.

305.  Lastly, I would like to thank counsel on both sides for their helpful assistance and submissions.