BHATTI BHUPINDER SINGH v. LEE CHIU TAK AND OTHERS

DCCJ 5119/2018

[2019] HKDC 1557

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5119 OF 2018

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REASONS FOR DECISION

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1.  This is an application by the plaintiff for an interlocutory injunction against the defendants. The plaintiff acts in person and sues against the defendants for nuisance caused by noise emanated from the latter’s premises.

2.  The plaintiff is the owner of Flat B, 30/F, Block 2, Sherwood Court, Kingswood Villa, Tin Shui Wai (“P’s Flat”); while the 3 named defendants were joint owners of the flat above, namely Flat B, 31/F, Block 2, Sherwood Court (“Ds’ Flat”).  The 1^st named defendant in fact passed away in February 2011 and the plaintiff has withdrawn this action against him.

3.  For ease of reference, I shall refer to the 2^nd named and 3^rd named defendants as “the 2^nd defendant” and “the 3^rd defendant” respectively; and they together as “the defendants”.

4.  This hearing is originally set down for 30 minutes.  The defence however has already filed evidence in opposition in the form of the 3^rd defendant’s affirmation filed yesterday, to which the plaintiff confirms he does not need to respond.  Mr Matthew Lai, counsel for the defendants, has also lodged his written submissions yesterday.  With the agreement of parties, I proceed to hear the substantive arguments.

5.  At the conclusion of the hearing, I make the following Order

“[Upon the plaintiff giving the usual undertaking as to damages]

AND Upon the plaintiff undertaking not to harass any of the defendants and any occupants of Flat B, 31/F, Block 2, Sherwood Court, Kingswood Villas, Tin Shui Wai

1.    The defendants or any of them be enjoined, until trial or further order, from causing or permitting unreasonable noise to emanate from the defendants’ flat, namely, the said Flat B, 31/F, Block 2, Sherwood Court, Kingswood Villas, Tin Shui Wai between the hours of 11 pm and 7 am; and

2.    Costs of this application, with certificate for counsel, be in the cause”.

6.  These are my reasons for so ordering.

7.  It is common ground that previously there had been a number of “unhappy issues” between the parties, including a complaint by the plaintiff of water seepage from Ds’ Flat.

8.  The crux of the plaintiff’s present complaint is that since about March 2014 (and is still continuing), noises, often loud and lasting for a while, have emanated from the Ds’ Flat, usually from about 10:30 pm onwards, and often between 4 am to 8:45 am, but also during daytime, in the form of tapping sound, tick-tocks, sound of heavy objects rolling, moving of furniture and such. These noises have greatly disturbed the plaintiff’s and his family members’ sleep and their enjoyment of P’s Flat.

9.  It is the plaintiff’s belief that the noises have been made by the 2^nd defendant, a lady over 70 years old, whom he thinks has mental issues.

10.  Since then and for years, he has made numerous complaints and tried to seek help from a long list of authorities and third parties, including the estate management, the police, Ombudsman, Social Welfare Department and local District Council and so on, but all to no avail.  On his own admission, which he does apologetically, that on one occasion he “went berserk” before the 2^nd defendant, causing her some trepidation and police was called; and on some other occasions, he “countered attacked” by making similar noises over-night by banging on the ceiling.

11.  Ds’ Flat is occupied by the 2^nd defendant, her 2 sons (one of whom is the 3^rd defendant) and her daughter, who is a single mother, as well as her daughter’s daughter, who is around 6 years old.

12.  The defence, in very broad terms, is that the defendants deny, simply and en bloc, that noises have been emanating from Ds’ Flat as now complained.  Again broadly, in the Amended Defence, the plaintiff’s persistent and numerous complaints to various authorities were not much disputed save that the defendants made no admissions to matters they have no personal knowledge.

13.  The principles governing the granting of interim injunction are trite and need not be repeated here.  Put very simply, the plaintiff needs to show that there is a serious question to be tried and that on balance of convenience the interim injunction sought ought to be granted.

14.  The defendants do not dispute that where unreasonable noise emanates from Ds’ Flat, from albeit lawful activities therein, which interferes with P’s comfortable and convenient enjoyment of P’s Flat to a sufficiently serious degree, it would amount to actionable nuisance; and a useful test is what is reasonable according to ordinary usages of mankind living in a particular society[1].

15.  The defendants submit that there is no serious question to be tried as there is little evidence to show that noise in fact has so emanated from Ds’ Flat as claimed.

16.  The plaintiff said that a meeting was held between representatives of the management office, himself and owners/occupiers of Flat 29B and Flat 32B of the same block, and a District Councilor one Mr Cham to resolve this noise problem.  The plaintiff said that in the meeting owners/occupiers of Flat 29B and Flat 32B orally complained and confirmed that noise has emanated from Ds’ Flat.  In support and to explain why there is a lack of record of the meeting, the plaintiff attached to his Reply a string of emails exchanged in January 2016 wherein he had repeatedly asked the estate management office 8 times for the records of that meeting but was turned down for the reason that “discussion was recorded for internal record only”.

17.  In the Amended Defence[2], the defendants averred to this meeting as one “to discuss the plaintiff’s complaints” and attended by “some other neighbours”, but denied owners/occupiers of Flat 29B and 32B made allegations that the defendants “had caused any nuisance”.

18.  I would tend to think that the owners/occupiers of Flat 29B and 32B would attend the meeting as their own enjoyment of their flats was affected.

19.  Be that as it may, in the plaintiff’s affirmation he exhibited 2 Community Psychiatric Service Community Notes regarding 2 visits to P’s Flat (“the 2 Notes”) in which it was remarked:

(a)    Regarding the first visit by a registered nurse, one Ms So and her supervisor one Ms Lin on 12 November 2015 between 1600 to 1640 hours:

“During 40 minutes of interview. Case manager [Ms So] and my supervisor Ms Lin actually heard the noises (knocking on the floor and moving furniture) from upstairs 4-5 times with around 5-10 seconds each…”

(b)    Regarding the second visit by the same Ms So on 30 March 2016 between 1000 to 1050 hours:

“During 45 minutes of interview. Case manager [Ms So] occasionally heard the noises (knocking on the floor) from upstairs …”

20.  It is therefore shown from an independent source that on 2 separate occasions about 4 months apart there were noises emanated from Ds’ Flat and in manners similar to that complained of by the plaintiff.

21.  Mr Lai says these instances occurred in daytime only and argues there is yet no other evidence regarding noise made at night time.  The defendants’ pleaded case, however, is that no such noise, in the manner as the plaintiff has complained, has emanated from Ds’ Flat, daytime or night time.  The 2 Notes clearly lend credibility to P’s version and militate against Ds’ version.

22.  Incidentally, the plaintiff also attached to his Reply a medical certificate dated 4 January 2018 certifying that he has not suffered from any mental disorder, whether it be Paranoid Disorder or Delusional Disorder.  In fact, in the hearing I find the plaintiff intelligent.

23.  The short affirmation of the 3^rd defendant filed yesterday said little.  In the first paragraph, he said “there is no serious question to be tried against me” (my emphasis) and he went on in paragraph 2 to depose that he filed the affirmation also on behalf of the 2^nd defendant and then after raised essentially legal arguments and ended with stating that he made no admissions.

24.  I am persuaded by the persistence in the plaintiff’s complaints, by the fact that he is not suffering from any mental disorder, and importantly, by the independent evidence as afforded by the 2 Notes that there is a degree of genuineness in the plaintiff’s complaint of noise having emanated from Ds’ Flat in the manner he described.

25.  As mentioned above, whether interference of enjoyment of P’s Flat by noise amounts to an actionable nuisance depends on whether the noise is unreasonable and the interference sufficiently serious according to ordinary usages of mankind living in a particular society.  I think in that regard, there is a distinction between the plaintiff’s complaints of noise emanated during night time as opposed to those emanated during daytime.

26.  I then draw parties’ attention to section 4 of Noise Control Ordinance Cap 400 which provides:

“4.  Noise at night or on a general holiday

(1)  Any person who between the hours of 11 p.m. and 7 a.m., or at any time on a general holiday in any domestic premises or public place makes or causes to be made any noise which is a source of annoyance to any person commits an offence.

(2)  Any person being the owner, tenant, occupier or person in charge of any domestic premises who between the hours of 11 p.m. and 7 a.m., or at any time on a general holiday knowingly permits or suffers noise which is a source of annoyance to any person to emanate from those domestic premises commits an offence.

(3)  Any person who commits an offence under this section shall be liable to a fine of $10,000.

(Amended 2 of 1994 s. 9)”

27.  That section makes it a criminal offence to cause or permit noise which is a source of annoyance to be made between 11 pm to 7 am.  Thus, any such noise made within those hours seems to me prima facie unreasonable and would cause serious interference; such that there is a serious question to be tried that such noise amounts to actionable nuisance.

28.  While whether there is a serious question to be tried that noise made in daytime amounts to an actionable nuisance depends on further consideration and assessment as to the reasonableness of the level and the kind of noise as well as whether they cause such sufficiently serious interference.  Over such matters it seems to me that there is some force in Mr Lai’s argument that there is little evidence in support.  Upon understanding this the plaintiff indicates that the gravamen of his concern is the noise emanated in the night time and in the circumstance he no longer pursues an interim injunction to enjoin noise made during daytime.

29.  On balance of convenience, Mr Lai submits that the delay in applying for this interim injunction is fatal.  When asked, he however cannot point to any harm or prejudice caused to the defendants by the delay.  It is abundantly clear to me that the plaintiff has been making a lot of efforts continually for years to try to resolve this noise issue, but all to no avail, and finally had to commence this civil action in which he has been taking active steps to prosecute it in a timely manner.  I accept that his delay in applying was due to his lack of knowledge of this procedure.  I do not think the delay should be held against him so much as to make it fatal.

30.  Mr Lai then submits that the balance should tilt in favour of the status quo.  I have held that there is a serious question to be tried that the plaintiff’s enjoyment of P’s Flat at night has been wrongfully interfered with; there is no good reason to maintain such status quo simply for the sake of maintaining it.

31.  In the premises, I conclude that I should grant the interim injunction in terms set out in paragraph 5 above.

32.  However, as mentioned above and on his own admission, the plaintiff had previously harassed the defendants, which he explained was done out of frustration and for which he felt apologetic and had in fact apologized.  I think it just and right in the circumstances, before this court would exercise its discretion in his favour, to ask the plaintiff to give an undertaking to the court not to commit such act of harassment again.  I am glad to note that the plaintiff readily agrees to giving the undertaking, which this court hopes would be one of the first steps towards building goodwill between the parties.

33.  Lastly, I thank Mr Lai for his assistance and also would note, with thanks, the defendants’ and their legal teams’ willingness to engross the Order, with the proper penal notice, for approval and to serve the same personally to the defendants.