WONG HOI CHUN MILES v. KING PRIZE LTD

DCCJ 42/2019

[2019] HKDC 370

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.42 OF 2019

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DECISION

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1.  The application before me is plaintiff’s amended inter parte summons for interlocutory injunction against the defendant, taken out on the same day the writ was issued on 4 Jan 2019.

2.  The plaintiff and the defendant are neighbors.

3.  The defendant recently purchased two adjacent rectangular pieces of land known as Sub-Sections 2 & 3 both of Section B of Lot 2080 in DD 116 (Sub-Section 2, Sub-Section 3 and collectively D’s Lands) on 7 Sept 2018.

4.  The plaintiff has as early as from 18 Dec 2000 owned his rectangular piece of land known as Sub-Section 2 of Section A of Lot 2080 in DD 116 (P’s Land) to the south of Sub-Section 3.

5.  To the north of D’s Lands and also to the east of D’s Lands and P’s Land is a public road known as Yau Tin West Road (the Road) that runs from southeast to northwest.

6.  The plaintiff claims to enjoy a L-shaped right of way over D’s Lands (the RoW) to access the Road by way of the doctrine of lost modern grant. Except for the RoW, he makes no claim to the rest of D’s Lands (the Rest of D’s Lands).

7.  Within boundary of D’s Lands, the RoW allegedly runs along the west & south sides of Sub-Section 2 and thereafter the south side of Sub-Section 3 to reach the alleged front entrance of a 2-storey building erected on P’s Land (the Building).

8.  The alleged position and termini of the RoW is marked in pink on the same plan annexed to the writ, the statement of claim (the SOC) and exhibit “WHCM-3” of plaintiff’s affirmation.

9.  The plaintiff resides at 1/F of the Building and let out G/F thereof to tenants.

10.  The plaintiff complains of alleged blockage of the RoW by defendant’s predecessors since June 2018. They had, he said, erected continuous metal fences (the Fences) reducing the width of the RoW in June 2018 and also erected one metal gate with lock[1] at one end of it (the Gate) in about July 2018, making the RoW no longer available for him and his tenants to access the Road.

11.  By para 1 of the application, the plaintiff seeks a mandatory injunction requiring the defendant to remove the Fences. Failing that, he asks to remove them himself at defendant’s expenses under para 2. At para 3, he seeks a prohibitory injunction restraining erection of fences or similar acts obstructing the RoW.

12.  In her oral submissions, plaintiff’s counsel (Ms To) seeks instead a mandatory injunction requiring the defendant to remove the Gate and to relocate the Fences backwards so as to restore the former 4-feet width of the RoW. Failing that, she asked that the plaintiff be allowed instead to remove the Gate and the Fences at defendant’s expenses[2]. And she maintains para 3 of plaintiff’s application.

13.  Defendant’s counsel (Mr Chow) opposed plaintiff’s application and asks for its dismissal. By way of fallback, he has also addressed this court on the scope and wordings of the injunction(s) sought.

Applicable principles

14.  Having considered counsels’ submissions, I hold the following principles to be applicable.

15.  The requirements for the grant of an interlocutory injunction are that (1) there is a serious question to be tried; and (2) the balance of convenience lies in favor of granting it: Hong Kong Civil Procedure 2019, Volume 1, para 29/1/8, citing American Cyanamid Co v Ethicon Ltd [1975] AC 396.

16.  For mandatory injunction, though it is the general approach that the court will not grant one unless it feels a high degree of assurance that, at trial, it will be shown that it was rightly granted, where it is shown that its withholding would in fact carry a greater risk of injustice than the granting of it, it could still be right for the court to grant it even though it does not so feel: Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041, 1048.

17.  Section 52B(1) of District Court Ordinance, Cap.336, makes no distinction between mandatory or prohibitory injunction and simply states that injunction may be granted if it appears to be just or convenient to do so.

18.  The fundamental principle for American Cyanamid guidelines is that the court is concerned that it might make wrong decision in the sense that, after trial, the party to whom an interlocutory injunction has been granted may lose (or that the party who has been refused may win) and therefore it will take whichever course that appears to carry the lower risk of injustice if it should turn out that it is wrong: Music Advance, supra, 1046-7.

19.  Thus, if a plaintiff seeking a mandatory injunction cannot demonstrate more than a serious question to be tried, it can show that the balance of convenience tilts so much in its favor that justice still requires such an injunction to be granted: Music Advance, supra, 1048.

20.  Where the grant or refusal of an interlocutory injunction would in effect dispose of the action finally, the court will also have more regard to the plaintiff’s prospect of success, though it is neither possible nor appropriate to formulate a precise threshold: BMC Global Ltd & another v Tor Asia Credit Master Fund & others, unreported, HCA 2392/2016, 14 October 2016, para 35 & 37.

21.  The courts have in the past formulated various tests in relation to this higher regard e.g. “at least very likely to succeed at trial” adopted in para 9 of Fast - Link Express Ltd v Falcon Express Ltd, unreported, HCA 2040/2005, 30 December 2005.

22.  The significance of the merits of plaintiff’s case as a factor varies according to the particular context and circumstances of each case.  Ultimately, the court’s task is to arrive at a result which would carry the lowest risk of injustice as a result of the grant or refusal of an injunction which would in effect dispose of the action finally: BMC Global, supra, para 37 & 38.

23.  An easement over land (and a right of way being an easement) could be acquired in Hong Kong by prescription on the doctrine of lost modern grant: China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342.

24.  If the owner of land uses a road as a means of access to, and egress from, his land for more than 20 years “as of right”, then, at least in the absence of special circumstances, he will obtain a right of way over the land for the benefit of his land by lost modern grant: Yik Wai Pong v Yick Pak Kin [2019] HKCFI 21, para 73(1).

25.  In order to rely on lost modern grant, the plaintiff must show that he or his predecessor had had uninterrupted use and enjoyment of the right of way in question for at least 20 years: Wan Yuk Wing v Wong Kwok Hing Patrick [2009] 5 HKLRD 143, 153.

Merit of plaintiff’s claim

26.  Ms To pointed to, among others: -

(1) plaintiff’s affirmation evidence of daily use by him, his tenants, his predecessors and others of a road over the RoW to access the Road for more than 20 years before June 2018;

(2) surveyor’s plan dated 3^rd Dec 1988 given by agent of plaintiff’s predecessor to plaintiff on his purchase of P’s Land allegedly marking the RoW in yellow;

(3) aerial photos from 1995 to 2018 allegedly depicting the RoW in the form of a road to and from the Road;

(4) photos capturing erection of the Fences in June 2018; and

(5) photos of the Gate taken in Feb 2019

and submitted that, based on such evidence, there are serious questions to be tried in this case regarding plaintiff’s entitlement of the RoW and its infringement as from June 2018.

27.  The defendant has yet to file its defence. Para 1 of the application, Mr Chow emphasized, is in the form of a mandatory injunction. He also compared this application with the prayers for similar injunctions in the SOC and submitted that its disposal would likely in effect dispose of this action finally.

28.  Mr Chow forcefully observed, among others, that: -

(1) some of plaintiff’s assertions are hearsay and not otherwise supported by affidavit from the alleged informants;

(2) particulars or details of alleged blockage of the RoW in June 2018 is lacking in plaintiff’s affirmation;

(3) details of alleged blockage of the RoW in June 2018, and allegation of erecting the Gate, were only forthcoming in plaintiff’s 2^nd affirmation;

(4) expert surveyor evidence is lacking to interpret the aerial photos to identify the RoW; and

(5) the timing of the alleged marking of the RoW on the surveyor’s plan dated 3^rd Dec 1988 is unclear.

29.  Hence, the evidence before this court, he argued, could by no means reach the higher regard for prospect of success required for the grant of an injunction which would effectively dispose of this action finally or the high degree of assurance required for mandatory injunction.

30.  I think the action may still go to trial. And this application is not an occasion for a trial on affidavit. Thus, I will say no more than as follows on its merits.

31.  Considering the applicable legal principles on right of way and all the evidence now before me, notwithstanding the observations of Mr Chow, there remain, I agree with Ms To, serious questions to be tried in this case as submitted by her.

32.  At the same time, I agree with Mr Chow’s submissions at para 29. The plaintiff’s claim may, or may not, succeed at trial. The written submission of Ms To that the plaintiff having demonstrated a high degree of assurance cannot, I think, be accepted.

33.  My conclusions at para 31 & 32 thus brings into focus the balance of convenience in the context and particular circumstances of this case, to which I now turn.

Balance of convenience

34.  Ms To submitted that damages would not be an adequate remedy to the plaintiff as plaintiff and his tenants have been deprived of their access to the Road along the RoW. Due to that, two out of plaintiff’s three G/F tenants, said the plaintiff, have already terminated their tenancies.

35.  Mr Chow submitted that there could be reason(s) other than the alleged blockage of the RoW that caused the 2 tenants to move out and that any loss of rental allegedly suffered by plaintiff & particularized in the SOC could be adequately compensated by damages.

36.  He also pointed to common evidence that the plaintiff has been enjoying an alternative access to the Road through Remaining Portion of Lot 2083 in DD 116 (Lot 2083RP) to the south of P’s Land and, hence, there would not be any serious and irreparable damage to the plaintiff in the interim.

37.  Had the plaintiff suffered any serious or irreparable damage from the alleged obstructions of the RoW in June 2018, Mr Chow argued, the plaintiff would not have taken out this application as late as in Jan 2019 as he did.

38.  In reply, Ms To pointed to plaintiff’s explanation in his two affirmations. The plaintiff’s licence over Lot 2083RP to access the Road for purpose of delivering large-sized constructions materials to his rear entrance of the Building, said the plaintiff, has already expired. The said owner of Lot 2083RP had made clear that the licence would not be extended and repeatedly demanded him to seal off a small opening of a concrete wall separating P’s Land and Lot 2083RP.

39.  Though, after the obstructions of the RoW in June 2018, the plaintiff and his tenants had no choice but to access the Road through Lot 2083RP, he cannot contact the said owner of Lot 2083RP. There is, said the plaintiff, a real risk that the said alternative access will be sealed in the future and that the Road would be inaccessible from the Building, be that from its front or rear entrances.

40.  Ms To further explained that the plaintiff had previously brought DCCJ 3476/2018 (the Previous Action), and taken out similar inter parte summons for injunctions (the Previous Application), against defendant’s predecessors for infringement of the RoW in Aug 2018. Due to change of ownership of D’s Lands, the Previous Action was ultimately discontinued, and the Previous Application was withdrawn, on 7^th Nov 2018 for having sued the wrong defendants.

41.  I agree with Mr Chow that plaintiff’s alleged loss of rental, if caused at all by the alleged obstruction of the RoW, could be adequately compensated by damages and Ms To has not advanced any submissions to the contrary.

42.  I do, however, agree with Ms To that plaintiff’s loss of access to the Road along the RoW could not be easily quantified or adequately compensated in damages.

43.  Unlike plaintiff’s case against the defendant, the plaintiff and his tenants, I agree with Ms To, could not access the Road along Lot 2083RP “as of right” nor in a position to assert any right of way over it as against its owner.

44.  The plaintiff and his tenants have been forced to trespass over Lot 2083RP and may, I agree with Ms To, become legally liable for such conducts, whose potential legal responsibility could not, I think, be adequately compensated in damages.

45.  And, on plaintiff’s undisputed evidence before me, there is every reason to believe that such alternative access would be put to its end in future, such that the Road would be inaccessible from the Building, be that from its front or rear entrance. I do not think that damages could adequately compensate the plaintiff in such scenario either.

46.  For the above reasons, I accept that the plaintiff would suffer serious and irreparable damage in the interim if the injunctions sought are refused.

47.  In this respect, Ms To’s explanation has, I think, properly accounted for the period from June 2018 to 7^th Nov 2018. Though not as swiftly as one may hope, plaintiff’s solicitors have thereafter, I note, issued a pre-action letter to the defendant on 21^st Dec 2018 and followed up with this application in early Jan 2019 when there is no reply from the defendant. And there is no suggestion before me that the defendant has suffered any prejudice due to such lapse of time.

48.  I move to consider whether the defendant could be adequately compensated by damages on plaintiff’s undertaking as to damages (he having said on affidavit that he is prepared to give the same) if the injunctions are granted.

49.  Ms To submitted there is unlikely to be any substantial loss or prejudice to the defendant which cannot be adequately compensated in damages if the injunctions are granted.

50.  For reasons below, I agree with her.

51.  She first submitted that the defendant needs only to pay one-off expenses to remove the Fences and the Gate (and, I think, also to relocate the Fences backwards), which expenses should unlikely be substantial and could be recovered by way of damages from the plaintiff should he fail in the end.

52.  I agree.

53.  On photos before me, the Fences and the Gate do not appear to be complicated structures that require heavy expenses or efforts to be built, removed or relocated. Indeed, the Fences appear to have been erected in a couple of days.

54.  Defendant’s director (and sole shareholder) has never in her affidavit complained of any hardship, expenses or efforts required by the injunctions sought.

55.  Ms To went on to submit that there is no evidence that the defendant requires or intends to use that part of D’s Lands over which the RoW runs for any purpose, or that the RoW adversely affects it use of D’s Lands in any way.

56.  Again, I cannot but agree.

57.  Defendant’s director has never in her affidavit adverted to any such purpose or adverse effect. Indeed, had the defendant inspected D’s Lands before or after its purchase in Sept 2018, it would, I think, have noticed the Fences (and the narrow space beyond them) on the ground and appreciated that there is no, or not much, meaningful purpose(s) that part of D’s Lands over which the RoW runs could be put to.

58.  Hence, I can see no serious or irreparable damage to defendant in the interim if the injunctions sought are granted. Mr Chow indeed made no submission on this point at all.

59.  For my conclusions at para 46 & 58, I agree with Ms To’s submissions that the balance of convenience tilts so much in plaintiff’s favor that justice requires the grant of the injunctions sought. And I reject Mr Chow’s submissions to the contrary.

60.  In his oral submissions, Mr Chow was at pains to stress that defendant’s predecessors (and the defendant), as owner of D’s Lands, are entitled to mark off the Rest of D’s Lands from outsiders or even burglars by the Fences, as the plaintiff makes no claim to them.

61.  This, I am afraid, overlooks plaintiff’s claim of RoW over D’s Lands by way of easement and his evidence that defendant’s predecessors had, in June and July 2018, effectively obstructed the same by erecting the Fences and the Gate respectively. The former, said plaintiff, had so reduced its width such that its current width at some part does not even allow a person to walk through and the latter had blocked it at one end.

62.  One cannot but think that the said alleged obstructions by defendant’s predecessors (though not admitted by defendant but that of erecting the Fences by them in June 2018 was plainly captured on photos) have disturbed the status quo and that ought to be preserved or restored by granting the injunctions sought.

63.  And the mandatory injunction ultimately sought by Ms To no longer requires removal of the Fences but merely their relocation backwards such that the defendant can still mark off the Rest of D’s Lands from such part of D’s Lands over which the RoW runs.

64.  All things considered and balanced, I therefore agree with Ms To’s submissions that, in the particular context and circumstances of this case, the refusal of the injunctions sought would in fact carry a greater risk of injustice than the granting of them and that it is just and convenient for them to be granted.

Disposition

65.  Having considered parties’ submissions on the scope and wordings of the injunctions sought, upon and on condition of plaintiff’s undertaking as to damages, which undertaking should appear in the sealed order, I grant and amend para 1 & 3 of plaintiff’s application to become as follows.

(1) Until trial or further order, the defendant be restrained from doing anything, whether by itself or by its servants or agents, obstructing the plaintiff exercising a 3-feet-wide right of way on foot to and from Sub-Section 2 of Section A of Lot 2080 in DD 116 and Yau Tin West Road along such parts of Sub-Sections 2 & 3 both of Section B of Lot 2080 in DD 116 marked in pink on a plan exhibited as “WHCM-3” of plaintiff’s affirmation (the Right of Way);

(2) The defendant do within 28 days

i) dismantle the metal gate blocking the Right of Way and captured on the 5^th photo of exhibit “CYHI-2” in affirmation of Chau Yuek Hei Isabella;

ii) relocate all such fences now erected on Sub-Sections 2 & 3 both of Section B of Lot 2080 in DD 116 backwards to such extent to give the Right of Way a minimum width of 3 feet along its entire length.

66.  For the time being, I make no order on para 2 of plaintiff’s application, as it may turn out to be unnecessary. But to cater for possible contingencies, I give the parties liberty to apply.

Costs

67.  I make a costs order nisi that the costs of this application, including all reserved costs, be costs in the cause and I certify attendance of counsel for the hearing before me. It shall become absolute if none applies in writing to vary it within 14 days.

68.  Finally, it remains for me to thank Ms To and Mr Chow for their submissions.