YUEN OI YEE LISA AND ANOTHER v. NGAI NGOK PANG AND ANOTHER

HCMP 2155/2018

[2019] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2155 OF 2018

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D E C I S I O N

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Background

1.  By an originating summons issued on 7 December 2018, Madam Yuen and Ms Lee (“collectively the Plaintiffs”) apply:

(1)  Against D1 (Mr Ngai), for an injunction as he had allegedly sent his “endless nuisances” against the Plaintiffs in the past; and compensation for injury to feelings;

(2)  Against D2 (Mr Ngai’s Sister), for an order that she do issue a statutory demand to the Plaintiffs and sign her English name on the statutory demand and to pass the default judgment, if any, to the Secretary for Justice for consideration.

(D1 and D2 shall be collectively referred to as “the Ngais”).

2.  This was supposed to be a hearing to deal with the wrong joinder of the parties and the claims; and striking out of the Plaintiffs’ claims under Order 18, rule 19(1) of the Rules of the High Court.

3.  At the outset, Madam Yuen and Ms Lee (through her submission) informed the court that they would withdraw the claims against Mr Ngai's Sister.  I gave leave to withdraw with an order nisi for costs in favour of Mr Ngai's Sister.

4.  The remaining claims are thus only in nuisance against Mr Ngai.  They arose out of 2 sets of proceedings involving Madam Yuen and Ms Lee respectively.

5.  In HCMP 2829/2012, Madam Yuen was the plaintiff and the Ngais were the defendants.  It is the Plaintiffs’ case that Mr Ngai had sworn that the signature on the acknowledgement of service in HCMP 2829/2012 on 24 December 2012 was the genuine signature of Mr Ngai’s Sister but in fact her signature was forged.

6.  Eventually, in HCMP 2829/2012 and the related appeal in CACV 118/2013, Madam Yuen was ordered to pay costs to the Ngais, yet to be taxed.

7.  In CACV 96/2013 (“the Lee proceedings”), this court dealt with a matter on appeal from a Master.  The Ngais were the appellants and Ms Lee was the respondent.  By an order dated 1 June 2017, Ms Lee was ordered to pay costs of $800 to the Ngais.

8.  There appeared to be a pending taxation of costs ordered against Ms Lee before a Master in CACV 96/2013 which was adjourned on 19 September 2017.

9.  The Plaintiffs’ case on nuisance is that Mr Ngai kept sending telephone messages and letters to them at the United Christian Hospital (“UCH”) to demand for payment of costs under the above costs orders.  The contents inside the envelops contained toilet paper. The Plaintiffs thus made the present claims against Mr Ngai.

10.  In a prior letter to the court dated 26 June 2019, Mr Ngai pointed out that there was wrong joinder of claims in that the Plaintiffs have different causes of action against the Ngais.

11.  Further, it appeared to the court that there was no cause of action in nuisance disclosed on the evidence.

12.  This court therefore, on its own volition, invited the Plaintiffs to make submission on whether the Plaintiffs were wrongly joined and to show cause as to why their claims should not be struck out.

13.  Mr Ngai has been served but did not appear.  He faxed in a letter to the court (“Mr Ngai’s letter”), the contents of which were largely irrelevant except as to costs of the originating summons.

14.  After hearing submission of Madam Yuen, I dismissed her claims against Mr Ngai.  I reserved my decision as regards striking out of Ms Lee’s claims.  Here are the reasons and my decision as regards Ms Lee.

Action by joint plaintiffs against Mr Ngai

15.  The wrong joinder was an issue before the Plaintiffs withdrew their claims against Mr Ngai's Sister.  In respect of the claims against Mr Ngai, there was one fact in common – that Mr Ngai sent letters of demand to the UCH to both of the Plaintiffs.  The wrong joinder of Plaintiffs and of the claims were no longer an issue in the remaining claims.

Madam Yuen’s claims against Mr Ngai

16.  The cause of action against Mr Ngai was nuisance.  The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land: Clerk and Lindsell on Torts, 22^nd ed, §20-01. 

17.  The relevant facts relied on by Madam Yuen was that there were “all toilet papers” in 4 envelops (“the 4 envelops”) sent to the Plaintiffs by Mr Ngai on 18, 19, 20, and 22 September 2018 to the Registry of the UCH.  However, only the one dated the 22^nd was addressed to “Madam Yuen the debtor” and “Ms Lee the debtor”.  The other 3 were addressed to “Ms Lee the debtor” alone.

18.  Madam Yuen also referred to matters in support of her application for leave to issue proceedings under an RPO in HCMP 2829/2012 on 19 November 2018.  They comprised a lot of her letters of complaint to the police since 2014 concerning, amongst others, forgery, blackmailing, criminal intimidation or telephone nuisance against Mr Ngai.  To date, no charge has been laid against Mr Ngai regarding those complaints.  There were also letters to a firm of solicitors who had allegedly handled conveyancing on behalf of the Ngais.  All of those documents were irrelevant to the claims before this court except for the fact that Madam Yuen had made reports to the police about telephone nuisance to her and Ms Lee by Mr Ngai but that no charge had been laid against him.

19.  Madam Yuen’s evidence also referred to a lot of phone messages from Mr Ngai.  Those messages were demands from Mr Ngai for payment of costs as ordered, with cross messages from Madam Yuen denying Mr Ngai’s assertions.

20.  Even if one were to accept what Madam Yuen stated on affirmations to be true, Madam Yuen had asserted no interference with her enjoyment with land.  UCH was not owned or occupied by her.  There was no prospect of success and the claims were not curable by amendment.  I therefore struck out the claims for lack of a reasonable cause of action in nuisance, or was otherwise frivolous or vexatious and abuse of process. 

Ms Lee’s claims against Mr Ngai

21.  Ms Lee said she owed Mr Ngai only $800, subject to her application for leave to appeal out of time.  She kept receiving demands from Mr Ngai at UCH for payment of costs under LDPD 2002/2012 and CACV 96/2013.

22.  Ms Lee referred to nuisances committed as follows:

(1)  From 2013 she had been receiving letters from Mr Ngai.  It affected her work as a doctor and surgeon. As words were marked on the envelops asking her to repay debts, her colleagues kept asking her if she owed people money.  She was concerned that she might lose her job.  From February 2015 she had been receiving demand letters from Mr Ngai.  These culminated in her report to the police on 7 July 2015.

(2)  She received telephone messages from Mr Ngai demanding for payment of costs in February/March 2016; September 2016; February 2017; April 2017; June 2017; April 2018.

(3)  She received letters of demand in April/May 2019 at the UCH, one with her name on the envelop and the other without.

(4)  She received the 4 envelops.

23.  In her letter to the Lands Tribunal dated 18 April 2016, Ms Lee stated that her work place was no longer UCH.  However, there were previous directions in the Lee proceedings that all documents to be served on Ms Lee should be sent to UCH. 

24.  Ms Lee admitted not paying the costs, which induced the demands for repayment of Mr Ngai.  Sending envelops with toilet paper inside was childish and nauseating on the part of Mr Ngai but there was nothing to suggest that the toilet paper was filthy.  On the other hand, Ms Lee could have applied for change of correspondence address in the Lee proceedings upon proper proof of her address.  That would have effectively prevented Mr Ngai from sending demands to the UCH address and saved this litigation.  The claims of Ms Lee were simply frivolous and vexatious and abuse of court process.

25.  But more importantly, the acts of Mr Ngai did not constitute interference with Ms Lee’s use or enjoyment of land – in this case UCH.  She might be affected at work or in terms of reputation, but that was not an aspect of use or enjoyment of land.  There was thus no cause of action disclosed even taking her evidence at its highest.  Her claims were incurable by amendment and ought to be struck out.

Other matters

26.  Mr Ngai’s letter complained about Madam Yuen sending around documents to various government authorities. They were not matters that could be dealt with in these proceedings.

27.  The only pertinent issue that Mr Ngai raised was about costs.  In previous hearings, the court dealt with a lot of procedural matters before Mr Ngai was served and when he did not appear.  In the present hearing, I have dealt with the striking out without useful input from Mr Ngai. 

28.  The originating summons and affidavits have been served on Mr Ngai.  Since the claims were struck out, I order the Plaintiffs to bear costs of Mr Ngai on the originating summons to be summarily assessed.

Conclusion

29.  I have given leave to the Plaintiffs to withdraw their claims against Mr Ngai's Sister.  On a nisi basis, costs shall be to Mr Ngai's Sister. I have dismissed Madam Yuen’s claims against Mr Ngai at the hearing.

30.  I now further order as follows:

(1)  Ms Lee’s claims against Ngai Ngok Pang be struck out and the originating summons be dismissed;

(2)  On a nisi basis, costs of the originating summons be to Ngai Ngok Pang to be borne by the Plaintiffs; and

(3)  Costs of the Defendants are to be summarily assessed on 16 August 2019.  Mr Ngai and Mr Ngai’s Sister shall file and serve his/her costs statement within 7 days; the Plaintiffs shall file and serve their grounds in objection within 7 days thereafter.  The amount of costs shall be summarily assessed on the papers without a hearing.