SUI CLARK ALEXANDER v. JUNXIA CHEN

HCA 1563/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1563 OF 2013

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BETWEEN

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Introduction

1.  This is an inter partes summons in relation to an application by the plaintiff for an injunction restraining the defendant from entering or attending his place of residence or interfering with his peaceful and quiet enjoyment of it.  The plaintiff issued a writ of summons on 24 August 2013 in which he seeks injunctive relief restraining the defendant from harassing him or his family, from trespassing or entering his place of residence or work place and contacting or communicating with him or his family and friends.

Background

2.  The plaintiff is originally from the United States of America and came to Hong Kong to work in September 2011. The defendant is originally from mainland China and became a Hong Kong resident in 2011. The plaintiff said he met the defendant socially in November 2012 and commenced going out with her.  The defendant said it was earlier in about July 2012.  Whatever the case, they soon developed an intimate relationship.  The plaintiff said that after he got to know her better, he wanted to break off the relationship. From December 2012, he began ignoring her text messages and requests to go out.  The defendant, on the other hand, said it was she who decided to leave him, because of an incident with another girl and she stopped seeing him. The plaintiff said it was at this stage that she was hostile towards him but later on she changed her behaviour towards him and was more conciliatory and understanding.

3.  The plaintiff claimed he met her by chance in mid February 2013 and after a night of drinking they had sexual relations back at his apartment.  She confirmed that for about two months they had stopped seeing each other, but then met by chance and that it was he who was apologetic and friendly towards her.

4.  Soonafter on 2 March 2013, the defendant contacted the plaintiff and informed him that she was pregnant and that she believed that he was the father. There is an issue as to the paternity of the child. I have been informed that in separate proceedings this matter is being pursued.  It is important for the well being of the child that the parties address this issue responsibly and properly and resolve the issue of paternity in a responsible manner.

5.  When the defendant informed the plaintiff that she was pregnant, he initially did not believe her and later questioned whether he was the father.  He stated that he did not know much about her background but she had told him in July 2013 that she was married and going through divorce proceedings.  Since the pregnancy of the defendant, there followed a series of encounters and incidents between them that have been chronicled by them in their affidavits and confirmed by various police reports. Their respective versions of events differ. They have each filed four affidavits together with supporting material including text messages and police records. The plaintiff claimed on a number of occasions that the defendant entered his home without permission, and sometimes forcibly. He said that she was violent and physically abusive towards him.  He recounted various incidences where she attended his home, remonstrating with him and sometimes resorting to violence by physically assaulting him. He said that she had also attended his work, harassing and threatening him. There was one incident on 14 August 2013 when she attended his home and refused to leave. The police were called but were unable to do anything about the matter other than to record the incident.

6.  The plaintiff stated that the defendant has also harassed him by contacting his family and friends. There have been occasions when she has made demands on him and his family, and has threatened and been violent towards a male friend of the plaintiff. There was an incident on 28 November 2013 when she attended his work and abandoned the newborn baby with him. He contacted the police who referred the case to the Social Welfare Department and the baby was returned to the defendant. I was informed by the plaintiff that the defendant left the baby with him on 25 February 2014.  He contacted the police who put the child in the care of the Social Welfare Department for several weeks until the baby was returned to the defendant.  The defendant claims that the plaintiff sent her a text message that he wanted to see her to give her his fourth affidavit and also asked whether she would like to have dinner with him.  She said it was her birthday and she asked him if he could take care of the child so she could meet up with friends. She said that he did not disagree and she was surprised he passed on the child to the police. She denied that she harassed him or caused any damage to his property or harm to him. She said that she moved into his flat as he had promised to provide her a home for her last three months of pregnancy. The plaintiff said that on this occasion the police were unable to do anything, and as she would not leave, he went and stayed with a friend and initiated these proceedings.

7.  On 24 August 2013, the plaintiff issued a writ of summons seeking relief from the court for orders to bar the defendant from his flat and from her harassing or threatening him.  On the same day, Au-Yeung J granted the plaintiff an injunction restraining the defendant from entering into or remaining at the plaintiff’s flat or interfering with the plaintiff’s use and enjoyment of his flat.  On 28 August 2013, Deputy High Court Judge Leung adjourned the summons to a date to be fixed for argument, with an order for the parties to file any further affidavits. He continued the injunction until the determination of the summons.  On 5 February 2014, Deputy High Court Judge Sakhrani adjourned the summons to date to be fixed for argument with an order for the defendant to file a further affidavit. He continued the injunction until the determination of the summons.

The application

8.  At one stage the parties were legally represented but now they both act in person. Upon considering the affidavits of the parties and the exhibits referred to therein and their submissions, I am satisfied that this is an appropriate case to grant the injunction applied for by the plaintiff in the terms as first ordered on 24 August 2013, save that I extend the terms of the injunction to include the plaintiff's place of work. The costs of the application are reserved.

9.  I find that (i) the defendant has attended the plaintiff’s place of residence and work place uninvited and causing disturbance and sometimes resorting to violent and physical behaviour causing harm to property and to persons; (ii) the defendant has made contact with the plaintiff, his family and friends and has been verbally threatening and intimidatory, and (iii) the defendant has been frequent and persistent with her contacts and demands.    

10.  The principles for injunctive relief are set out in the well-known authority of American Cyanamid Co v Ethicon [1975] AC 396. I am satisfied that there is a serious issue to be tried under tort law in trespass and nuisance, and possibly harassment, and that this is a case where damages would not provide adequate remedy.  The issues in this case are similar to the ones raised in Lau Tat Wai v Yip Lai Kuen Joey, HCA 1466/2011, unreported, 24 April 2013, Anthony Chan J.  I am also satisfied that the balance of convenience lies in favour of the plaintiff and the grant of the injunction serves the justice of the situation.

11.  I wish to state to the parties that whatever the circumstances that have led to this situation, a child has been born to the defendant. There is an issue of paternity and this should be resolved responsibly and properly, and as soon as possible. It requires both parties to be responsible about the matter and behave appropriately with each other.