LAU YEUNG MEI v. WONG OI SHUN

DCMP 1480/2017

[2018] HKDC 415

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1480 OF 2017

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JUDGMENT

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INTRODUCTION

1.  This is an application for an order of committal pursuant to Order 52 of the Rules of the District Court.

2.  The plaintiff and the defendant are next door neighbours living in a residential building in Tuen Mun. 

3.  The plaintiff and her husband lives in one of the four flats on the top floor of the building with their dogs.  It is not known exactly how many dogs there are but it seems that there are quite a few. The defendant, a widow, lives in another flat on the same floor.

4.  Since the plaintiff moved in to the building in 2015, the relationship between her and the defendant had not been amicable.  There had been quarrels between them from time to time over various things, such as the smell of dogs.  Tension escalated and things came to a head on 22 June 2016. The defendant was burning hell money for her late husband in the common corridor on the top floor.  The plaintiff confronted the defendant about it. Angry words were exchanged.  In the process the defendant hit the plaintiff with an iron pipe.

5.  On her own guilty plea, the defendant was convicted of assault occasioning actual bodily harm at the Tuen Mun Magistrates’ Court on 13 July 2016.  Shortly after that, on 3 August, the plaintiff commenced a civil action against the defendant under DCCJ 3835/2016. At a hearing on 6 January 2017, by consent, the court made the following order (the “Order”):-

“(1) Judgment be entered for the Plaintiff against the Defendant that:-

(a) the Defendant be restrained from spraying and/or pouring liquid on and/or interfering the outside wall, floor, corridor, exit, door, metal gate of the Plaintiff’s Residence at Flat C on 15^th Floor and Portion of Flat Roof C on 15^th Floor and Roof C, Florence Mansion No. 6 Tsing Ling Path, Tuen Mun, New Territories, Hong Kong;

(b) the Defendant be restrained from obstructing the exit of and corridor outside the Plaintiff’s residence at Flat C on 15^th Floor and Portion of Flat Roof C on 15^th Floor and Roof C, Florence Mansion No. 6 Tsing Ling Path, Tuen Mun, New Territories, Hong Kong; and

(c) the Defendant be restrained from assaulting, intimidating, molesting, harassing, threatening, pestering or otherwise interfering with the Plaintiff, the Plaintiff’s pets and family members.”

6.  The defendant appeared in person at the hearing.

7.  It is the plaintiff’s case that since the Order was made, the defendant has on four occasions violated its terms.  In essence, in each instance, when the two came across each other briefly in the common area in the building or in the street nearby, the defendant uttered abusive language directed at the plaintiff – either addressing her directly or speaking in a way which the plaintiff was bound to hear.  The uttering of abusive words, the plaintiff says, constitutes breaches of para 1(c) of the Order.

8.  The plaintiff now relies on the first three incidents in support of her application to commit the defendant for contempt.

9.  I would say at the outset that the application primarily turns on the proper construction of the injunctive relief contained in para 1(c) of the Order.

THE PROCEDURAL REQUIREMENTS

10.  Personal service of a sealed copy of the Order, endorsed with a penal notice, was effected on the defendant on 17 March 2017. I granted leave to the plaintiff to apply for a committal order on 17 May 2017.  The plaintiff issued the present originating summons on 24 May 2017.  But the notice of appointment to hear the originating summons was not taken out until 4 August 2017.

11.  Order 52, rule 3(2) provides that unless within 14 days after leave was granted the originating summons is entered for hearing, the leave shall lapse.  Accordingly, the notice of appointment should have been taken out latest by 31 May 2017 and the actual notice taken out was more than two months late. When the matter came before me on 8 September 2017, the plaintiff made an application to extend time for the fixing of the appointment under Order 3, rule 5.  Having heard arguments from counsel, I was satisfied that the court has jurisdiction to extend time in civil contempt proceedings: Secretary for Justice v Cheng Kam Mun HCMP 488/2015, 1 September 2015, para 43 and that I should exercise discretion to do so.  I extended time as requested and adjourned the originating summons for trial.

12.  Apart from the above issue which was disposed of at the last hearing, the defendant does not take issue with any procedural aspect of the present application.

13.  I would however mention one point regarding the penal notice.  As revealed in the exhibits, the penal notice was endorsed on the back sheet of the sealed copy of the Order. 

14.  In China Shanshui Cement Group Ltd v Zhang Caikui [2018] HKCFI 444, it was submitted on behalf of the alleged contemnor that a penal notice appearing on the back sheet is deficient because the back sheet cannot be described as part of the order and the court should not therefore proceed with the contempt application in light of the ineffective penal notice.  On this submission, Au-Yeung J said this:-

“Rightly or wrongly, endorsing a penal notice on the back sheet has been a long-time practice. The practice ought to be corrected as soon as possible to place the penal notice in the body of the order itself.” (at para 78)

15.  However, her ladyship considered that the purpose of the penal notice was to make sure that the defendant is aware of the potentially serious consequences of breach of the order and that on the facts of that case, the penal notice could not have escaped the attention of the alleged contemnor, notwithstanding it having been endorsed on the back sheet.  Hence the procedural defence did not assist the alleged contemnor: see paras 76-81.

16.  Here, the defendant has not taken any issue with the back sheet endorsement.  (Au-Yeung J’s decision was handed down after the present trial.)  In any event, according to the affirmation of service, when the paralegal served the Order, she did inform the defendant orally of the consequences of breaching the order.  Accordingly, I am satisfied that notice has properly been given in compliance with Order 45, rule 7(a).

17.  At the trial, the plaintiff was tendered for cross-examination on her first and second affirmations.  Having filed an affirmation in opposition, the defendant elected not to give evidence at the trial.  It is within her right to do so in contempt proceedings.  She is a competent witness but not a compellable one: Order 52, rule 6(4); Re B (Contempt: Evidence) [1996] 1 WLR 627 at 638A, 639C; Secretary of Justice v Li Pang Kay HCMP 1851/2013, 20 August 2015 at para 12(1). Ms Lily Yu, who appeared for the defendant, accepted that as a result the defendant cannot rely on the factual matters stated in her affirmation in opposition in these proceedings.

THE PLAINTIFF’S CASE

18.  It is necessary to set out the plaintiff’s factual case on the alleged breaches of the Order in detail.  At the same time, I need to be informed of the background leading to the making of the Order as it provides the context against which the Order is to be construed: Bruno Arboit v Koo Siu Ying HCMP 2749/2012, 8 March 2016 at para 112.  The general principle is that interpretation of a court order depends on the words used which have to be interpreted in their context: see, eg, Commercial Injunctions by Steven Gee QC (6^th ed) at para 19-007.

19.  The plaintiff says that after moving in to the building, she would walk her dogs in the morning and would come across the defendant from time to time.  At first, she would try to greet the defendant but the defendant would often just ignore her.  It was the plaintiff’s understanding that the defendant was not happy with the plaintiff keeping dogs.  But residents of the building are allowed to keep dogs.

20.  In mid-2016, the plaintiff found that there were water stains on her metal gate, the walls outside her flat and the common corridor.  She then set up a CCTV outside of her flat.

21.  She later found out that the water stains were caused by the defendant spraying or pouring unknown liquid in those areas in order to remove some “smell”.  The plaintiff therefore requested the management office to put up a notice in the common corridor of the top floor to remind residents not to pour liquid in common areas.  Subsequent CCTV footage revealed that shortly after the notice was put up, the defendant tore it off.  The CCTV footage also showed that the defendant had put two barrels filled with concrete outside the plaintiff’s flat thus obstructing her exit route.

22.  The relationship between the plaintiff and the defendant gradually worsened.  On 22 June 2016, the defendant was burning some hell money for her late husband in an iron barrel in the common corridor.  The plaintiff confronted the defendant and demanded her not to put the iron barrel outside the former’s flat.  Angry words were exchanged.  In the course of the heated argument, the plaintiff tried to take away the barrel and the defendant hit the plaintiff with an iron pipe, causing injury to her left hand and both forearms.

23.  On 13 July 2016, the defendant pleaded guilty to the charge of assault occasioning actual bodily harm.  She was convicted and fined $4,000.

24.  Notwithstanding the conviction, on three occasions in October and November 2016, when the plaintiff came across the defendant in the building or nearby, the defendant yelled abusive words at her.  The plaintiff says that she was very annoyed by the disturbing behaviour of the defendant.

25.  The plaintiff commenced the civil claim against the defendant on 3 August 2016.  In the statement of claim, she pleaded four causes of action:-

(a)  Since the beginning of 2016, the defendant had repeatedly sprayed and/or poured unknown liquid on to the outer wall and metal gate and door of the plaintiff’s flat, the common corridor and the plaintiff’s shoes and carpet.

(b)  On 14 June 2016, the defendant obstructed the door exit of the plaintiff’s flat by placing there two barrels filled with concrete, causing and imposing dangers to the plaintiff, her family member and pets.

(c)  On 22 June 2016, the defendant sprayed unknown liquid on the plaintiff’s face and attacked her with an iron pipe causing injuries.

(d)  On 24 June 2016, the defendant obstructed the door exit of the plaintiff’s flat again by placing a rice bag filled with heavy material there.

26.  In her acknowledgment of service lodged with the court on 29 August 2016, the defendant indicated that she did not intend to contest the proceedings. 

27.  On 22 November 2016, the plaintiff took out a summons for default judgment under Order 13, rule 6 and Order 19, rule 7.  At the hearing of the summons on 6 January 2017, the plaintiff was represented by a firm of solicitors and the defendant appeared in person, accompanied by her son-in-law.  The defendant confirmed to the court that she understood the plaintiff’s application and consented to judgment being entered against her in the form of injunctive relief set out in the Order.

28.  After the making of the Order, for her own personal safety, the plaintiff would turn on the recording function of her mobile phone whenever she left home.

29.  To the plaintiff’s dismay, notwithstanding the Order, the defendant did not stop her disturbing conduct towards the plaintiff.  The plaintiff claims that the defendant was in breach of the Order on four occasions.  She exhibited to her first affirmation four video recordings taken on her mobile phone showing these encounters.

30.  The first alleged breach took place on 9 February 2017 in a street near the building.  It was a very brief encounter.  The plaintiff was walking her dog when she came across the defendant coming in the opposite direction.  When they were about one metre apart, the defendant uttered the abusive words “臭閪” and walked away.  In cross-examination, the plaintiff accepted that when the defendant said those words, she was not looking at the plaintiff.  However, the defendant had had eye contact with the plaintiff before saying those words.  And there was no other person around the two of them at that time.

31.  The second alleged breach took place on 10 April 2017 in the common corridor outside their flats.  The plaintiff was waiting for the lift with her dog when the defendant happened to leave her flat at the same time, holding a trolley.  Whilst locking the metal gate, the defendant uttered the abusive words “臭閪”.  The plaintiff said that although the defendant did not say the words loudly, she could hear them clearly.  Then the defendant walked towards the plaintiff and shouted to her the words “嚇鬼咩”, immediately followed by the abusive words “屌啦星”.  She then pushed the trolley in the direction of the plaintiff’s dog.  The plaintiff immediately complained about the defendant’s behavior.  The latter angrily retorted “鬧你又點唧!”, meaning “So what if I yelled!”

32.  The third alleged breach took place two days later, on 12 April 2017, and again in the common corridor outside their flats.  This time, the plaintiff was coming home from outside with her dog.  She stepped out of the lift on the top floor and found the defendant in the common corridor.  The defendant then entered the lift and just when the lift door was coming to a close but not yet fully shut, the plaintiff heard the defendant utter the abusive words “臭閪”.  The door then closed completely.  There was no one else in either the lift or the common corridor.

33.  The fourth alleged breach took place on 12 May 2017 in the common area of the ground floor of the building.  In the originating summons, the plaintiff does not refer to this incident as a ground in support of her committal application.  Save with the leave of the court, no grounds other than those stated in the originating summons can be relied upon at the contempt hearing: Order 52 rule 6(3); Chiltern DC v Keane [1985] 1 WLR 619 at 622B.  Mr Edward TC Chan, who represented the plaintiff, confirmed at trial that he would not rely on the incident in these contempt proceedings.

34.  However, I shall set out the evidence briefly. This time, the plaintiff was leaving the building when the defendant was returning from outside, holding a plastic bag in her hand.  As they were approaching each other from opposite directions, the defendant swung the plastic bag towards the plaintiff a few times and yelled at her.  The plaintiff felt as if the defendant was trying to attack her but as she was very conscious about her own safety, she tried to keep a distance from the defendant and was therefore not hit by the plastic bag.

35.  The plaintiff contends that by uttering the abusive words directed at her, the defendant was intimidating, molesting, harassing and/or pestering her in the first three incidents and was therefore in breach of para 1(c) of the Order.  (The plaintiff is not relying on the other operative words in that paragraph, namely “assaulting”, “’threatening” and “otherwise interfering”.)  Mr Chan submitted that the uttering of abusive language in the circumstances of the three incidents comes within the prohibited act set out in the Order.  He described the present case as an “open-and-shut” case in which contempt is clearly established.

THE DEFENDANT’S CASE

36.  Having elected not to give evidence herself, the defendant has no positive factual case to put forward.  The focus of Ms Yu’s cross-examination was instead on whether the defendant indeed uttered those abusive words (in the first incident); if she indeed did so, whether she directed those words at the plaintiff (in the first and third incidents); and, whether the plaintiff in fact felt disturbed in all three incidents.  It was put to the plaintiff that the defendant should have been the one to feel annoyed since she was being video-taped by the plaintiff at close distance during many of their encounters. 

37.  Ms Yu’s further submission was, in gist, that if the court finds that the abusive words were indeed said by the defendant and directed at the plaintiff, they were casual utterances which should not cause any real emotional distress to the plaintiff.  The utterances were not of a serious or aggressive nature and were not done in a repetitive manner so as to fall within the operative words of “intimidating”, “molesting”, “harassing” and “pestering”.

FACTUAL FINDINGS

38.  It is trite that in contempt proceedings, the burden is on the plaintiff to prove the defendant’s act of contempt beyond reasonable doubt: Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830 at para 30.

39.  The plaintiff’s factual case on the three incidents is well supported by video recordings.  It is true that the video recordings do not capture every single utterance of the foul language by the defendant.  For instance, for the first incident, the video recording does not show the defendant’s face when the abusive words were said.  The plaintiff was cross-examined on gaps of this nature.  She stood by her allegations firmly.  Her evidence remains unshaken throughout.  In the absence of any contradicting evidence, there is no reason not to accept her evidence in its entirety as true.

40.  I am satisfied that the plaintiff’s account of her three encounters with the defendant is a truthful account, applying the above standard of proof.  More specifically, I find as facts that the abusive words were said by the defendant.  They were directed at the plaintiff in that the defendant spoke those words knowing that the plaintiff would hear them.  In other words, those abusive words were meant for the plaintiff.

41.  On the facts as found, the remaining question is a legal one – does the defendant’s uttering of the abusive words in the circumstances of the three incidents fall within para 1(c) of the Order?  This turns on the proper construction of the injunction contained in that paragraph.

DISCUSSION

42.  I have to say that at first glance, the defendant’s uttering of the abusive words would appear to amount to “molesting”, “harassing” and “pestering”, when these words are understood in their natural and ordinary meanings (leaving aside context for the time being). This is because the abusive words were spoken in circumstances which would likely cause any reasonable person in the plaintiff’s position to experience emotional distress or feel annoyed.

43.  It is trite that an order of the court should be construed strictly.  This is because the order has a potentially draconian effect on the commercial and economic freedom of an individual.  He needs to know exactly what he can do and what he cannot do under the terms of the order. Where an order is ambiguous or unclear in a material respect, any ambiguity is to be resolved in favour of the alleged contemnor: Bruno Arboit at paras 112-113; Gee at para 4-001.  In Sino Wood Investment Ltd v Wong Kam Yin (2005) 8 HKCFAR 715, Ribeiro PJ explained that the principle aims to ensure fairness to the defendant and to exclude punishment where the order makes it insufficiently clear what must or must not be done in order to avoid its contravention (see paras 20-23).  More recently, in OPO v Rhodes [2016] AC 219, Lady Hale and Lord Toulson, when giving the leading judgment of the Supreme Court, said, “Any injunction must be framed in terms sufficiently specific to leave no uncertainty about what the affected person is or is not allowed to do.” (at para 19).

44.  In the present case, the words in para 1(c) are capable of capturing a wide range of act or conduct.  Applying the strict construction approach to para 1(c), any ambiguity associated with these words would require the narrower meaning to be adopted: JSC BTA Bank v Ablyazov (No 10) [2015] 1 WLR 4754 at para 19; Gee at para 19-009.  

45.  Even on that premise however (but leaving aside the context in the meantime), I would be inclined to hold that the defendant’s acts would fall within the narrowest meanings of the three words identified above.  The abusive words spoken by the defendant are amongst some of the most vulgar swear words known to Cantonese speakers.  The plaintiff was at the receiving end of such abusive language repeatedly when she was simply going about her daily activities, like walking her dogs in the neighbourhood. These swear words were meant for her and any reasonable person in her position would have felt “molested”, “harassed” and “pestered” in these encounters.

46.  In this regard, I reject Ms Yu’s primary submission made at the trial that the words were not of a serious or aggressive nature or were not said repetitively so as to fall within the natural and ordinary meanings of the words “molesting”, “harassing” and “pestering”.  (However, I accept that the use of such words do not amount to “intimidating”.)

47.  And I believe that it is for the above reasons that the plaintiff’s case has been confidently described as an “open-and-shut” case.

48.  That said, however, while the words should be understood in their natural and ordinary meanings, they should also be construed against the context in which the Order was made.  In my view, when context is taken into account, the utterance of foul language in the circumstances does not fall within the meanings of those three words in para 1(c). 

Legal principles on the construction of an injunction

49.  There are a number of well-established principles which are of particular relevance in the interpretation of the Order.  (The discussion below focuses on the grant of final, as opposed to interlocutory, injunctive relief).

50.  First, context is important in the construction exercise: see, eg, JSC BTA Bank v Ablyazov (No 10) [2015] 1 WLR 4754 at para 21.  What must be ascertained is the meaning which the order would convey to a reasonable person having all the background which would reasonably have been available at the time the order was made.  This includes the purpose of the order.  See para 18 above.

51.  Second, an order must be expressed in unambiguous language so that the defendant knows exactly what he is forbidden or required by the order.  See paras 43 and 44 above.

52.  Third, an injunctive order should not be expressed in wider terms than the plaintiff’s right.  He should not get more than to what he is entitled under a matter of law: Gee at para 4-002.

53.  Fourth, on the other hand, the relief granted by injunction should be effective.  In his further written submissions, Mr Chan highlighted this “effective” principle.  The order should be framed in sufficiently broad terms to ensure that the defendant cannot escape his responsibilities by drawing unduly technical difficulties: Arlidge, Eady & Smith on Contempt (5^th ed) at para 12-56.

54.  On the same principle, Gee says:-

“However, there is also the principle that relief granted by injunction should be effective. Whilst the substantive right is relevant to the drafting of the relief, that relief should also be drafted so as to provide the claimant with an effective remedy. There may need to be an additional envelope of restraint. An example is having an exclusion zone so that the defendant does not harass the claimant. There is no substantive right to prevent the defendant from entering the zone, but if on the facts of the case it is reasonably necessary to provide for a zone for the injunction to achieve its purpose, to prevent harassment, then an injunction will be formulated accordingly. In Burris v Azadani [reported at [1995] 1 WLR 1372] the claim was for nuisance. The injunction could restrain what was necessary to avoid a nuisance even though not in itself tortious.” (at para 4-003) (emphasis added)

55.  It is worth highlighting the point made at the end of the above passage.  Burris concerns interlocutory relief.  In that case, the English Court of Appeal appeared to have accepted harassment as a tort in itself (see 1380H).  The commentary on this decision in Clerk & Lindsell on Torts (22^nd ed) at para 29-02 refers to the injunction as “imposing an “exclusion zone” on the defendant to prevent repetition of his tortious harassment of the claimant” (emphasis added). I shall briefly return to the issue whether such a tort exists in Hong Kong. The important point here is that it is not objectionable for an order to restrain conduct not in itself tortious or otherwise unlawful “if such an order is reasonably regarded as necessary for protection of a plaintiff’s legitimate interest”: Burris at 1377F-G.

56.  The decision was made in respect of an interlocutory injunction.  However, I would consider that the reasoning in Burris applies with equal strength to a final injunction.    

57.  Another aspect of the “effective” principle is that the court will often have to be pragmatic and have resort to some general wording in the drafting of an order so that it would provide effective protection to a successful plaintiff and guard him against the commission of further wrong of the same or similar nature by the defendant.  Gee observes, at para 4-003:-

“It is often not possible to specify in minute detail the scope of the injunction, and so some leeway is allowed in using a generality in the order. But the extent to which this may properly be done is a matter of degree and depends on the circumstances. … But even with final relief the width of any injunction is a matter of discretion for the court which will exercise it according to the particular circumstances and what degree of protection for the claimant is appropriate and proportionate.” (emphasis added)

58.  The use of generic language in an injunction is often found in relief which is granted to prevent the publication of defamatory words and the infringing of intellectual property rights.  As pointed out in Arlidge (at para 12-56), the standard forms of injunctions in these areas would inevitably contain references such as “any similar words defamatory of the claimant” or “any similar libels” (in defamation cases) and references such as “otherwise infringing”, “substantial part” and “otherwise passing off” (in intellectual property cases). 

59.  In Spectravest Inc v Aperknit [1998] FSR 161, Millett J said this in the context of an interlocutory relief in a copyright action:-

“In intellectual property cases a plaintiff is concerned not only to stop exact repetition of the defendant’s activity which can be described with particularity, but to prevent fresh invasions of his rights in ways which cannot be foreseen or described exactly. The ingenuity of those who infringe copyright and trade marks and engage in passing off is boundless, and plaintiffs cannot be adequately protected by orders which are cabined or confined.” (at 174) (emphasis added)

60.  Although the above comment was made in the intellectual property context, the reasoning behind the need to craft an injunction which would operate effectively is of general application.  To afford adequate protection to a successful plaintiff, sometimes it would not be sufficient to confine the order solely to enjoin the continuation of the wrongful act or the repetition of the exact same wrong.  In some cases, there should be “an additional envelope of restraint”, which is reasonably necessary to achieve the purpose of the order, for instance, to prevent the defendant from engaging in a similar wrongful act.  General wording may need to be incorporated to widen the original scope of the order, such as those in the context of defamation and intellectual property infringement. 

61.  The above principles are well-established.  But they may nevertheless come into conflict with each other when it comes to applying them in real life cases.  In the context of the “no wider than entitled” principle, it has been observed that the general principles are not absolute rules as such and, in their application, may have to give way to the practical doing of justice: see Gee at para 4-002.

62.  As an illustration, there is potentially a tension between the “unambiguous” principle on the one hand and the “effective” principle on the other.  The following observation in Arlidge is of note:-

“There thus arises a tension between two objectives. On the one hand, it is necessary to achieve precision and clarity in the drafting because the defendant needs to understand the full extent of his obligation, in a situation where he may find himself at risk of enforcement by process of contempt; whereas, on the other hand, the complainant will not unreasonably wish to ensure that he is adequately protected by wording which is wide enough to meet all possible permutations of misconduct within the defendant’s ingenuity.” (para 12-57)

63.  By the same token, where general wording (eg, “similar”, “substantial part”) is adopted in an injunction, the generality would inevitably introduce uncertainty into its meaning.

64.  Overall speaking, when formulating final injunctive relief, the court’s task is to bear in mind these competing factors and seek to come up with an order crafted in unambiguous terms but at the same time affording effective protection to a successful plaintiff to prevent the defendant from committing the same or similar wrongful act in the future.  At all times, the court must bear in mind that the order should give no wider right to the plaintiff than he is entitled to under his successful cause of action.

65.  Equally, when interpreting the terms of a final injunctive order in contempt proceedings, the court’s task is to construe the order in line with the above principles.  Where the principles are at odds with one another and there is any doubt or ambiguity as to the scope of the order, the principle of strict construction should apply such that the doubt or ambiguity must be resolved in favour of the defendant.  It would mean that the narrower meaning will have to be preferred to the possibly wider meanings or those meanings which are on the fringes or the outer boundaries of the range of meanings conveyed by the words used.

Application to the facts

66.  In the present case, the proper context is of course the causes of action pleaded in the civil claim.  As the defendant defaulted in giving notice of intention to defend and further in filing a defence, she is deemed to have admitted to the plaintiff’s pleaded case: Hong Kong Civil Procedure 2018 at 13/0/10 and 19/2/1.  Judgment was entered in default pursuant to Order 19, rule 7 by consent.  As such, no reasons were given for the grant of the Order in its present form. 

67.  Broadly speaking, the acts of the defendant, as pleaded and deemed admitted, constitute trespass to the person, trespass to goods and private nuisance.

(a)  The act of spraying liquid on the plaintiff’s face and hitting her with an iron pipe (para 25(c) above) constitutes the tort of battery.  A battery is the actual infliction of unlawful force on another person: Clerk & Lindsell at para 15-01.

(b)  The spraying and pouring of liquid (para 25(a) above) constitutes the tort of private nuisance and (in the case of the metal gate, the door, the shoes and the carpet) trespass to goods.  Private nuisance includes the unlawful interference with a person’s use or enjoyment of, or in connection with, land where the plaintiff has a sufficient interest in the land: Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at paras 48-51.  Trespass to goods lies for any direct and wrongful interference with the plaintiff’s possession of a chattel.  There is no need for a physical removal; any unpermitted physical intromission suffices: Clerk & Lindsell at para 17-130.

(c)  The obstruction of the exit of the plaintiff’s flat (para 25 (b) and (d) above) amounts to private nuisance, as it interferes with the plaintiff’s enjoyment of the flat.  Furthermore, the defendant has (impliedly) admitted that the obstruction “[caused] and [imposed] dangers to the plaintiff, her family and pets”. 

68.  At this juncture, it ought to be noted that the utterance of abusive language or foul words was not pleaded at all in the civil claim. 

69.  Against this background, the purpose of the Order is clear.

70.  First and foremost, it is to restrain the defendant from repeating the same tortious acts in the future.  Para 1(a) addresses specifically the wrongful act of spraying and pouring liquid.  Para 1(b) deals with the unlawful obstruction of the exit of the plaintiff’s flat.  These provisions are clear, precise and unambiguous.

71.  Generally speaking, in addition to restraining the repetition of the exact same wrongful act, in its proper exercise of its discretion when granting a final injunction, the court should see to it that the defendant is restrained from committing the same wrongful act by some other means or in some other manners and from engaging in other similar wrongful acts. That must be an essential part of the function of any injunctive order which the court should grant. 

72.  Having regard to the nature of the defendant’s wrongful acts, ie trespass to the person, trespass to goods and private nuisance, in my view, she should reasonably be prohibited from engaging in any act which would (a) inflict any unlawful force on the plaintiff; (b) cause any physical injury to the plaintiff or endanger her personal safety; (c) cause the plaintiff to apprehend any threat of physical injury or fear for her personal safety; (d) interfere with the plaintiff’s chattels; or (e) interfere with the enjoyment of her flat.

73.  It is against the above factual contextual backdrop that para 1(c) of the Order is to be interpreted. 

74.  The words used in that paragraph, including “molesting”, “harassing” and “pestering”, are words of a generic and descriptive nature and hence are capable of embracing a wide range of acts and conduct.  As such, it may be said that their meanings lack specificity and are not sufficiently certain and para 1(c) arguably does not adhere well to the “unambiguous” principle.

75.  However, at the injunction hearing, the court’s concern was, and it was indeed its duty, to come up with an injunction which would effectively protect the plaintiff’s rights in light of the series of wrongful acts committed by the defendant repeatedly over a period of time.  In Millett J’s words, the order which it should ultimately grant must be such as to give adequate protection to the plaintiff “to prevent fresh invasions of his rights in ways which cannot be foreseen or described exactly”.  In line with the “effective” principle, I consider that it is unobjectionable for para 1(c) to have included the words.  Given the potentially infinite variations and permutations of similar wrongful acts that the defendant might carry out, it was legitimate and justifiable for the court to cast a wider net by employing those words so as to (possibly) capture all such acts, notwithstanding that the words are all generic in nature and that the acts which they connote may not be tortious by themselves.  Otherwise the plaintiff’s interests would not be afforded effective protection if the defendant was to engage in any similar, but not identical, wrongful act.

76.  Having said that, however, these potentially wide words must be interpreted narrowly such that the plaintiff is granted no wider right than to what she should be entitled.  Therefore, on a proper construction, I am of the view that the words “molesting”, “harassing” and “pestering” should be interpreted to mean such act which has the effect set out in para 72 above.  In the present contempt proceedings, any potential wider meaning which might be attributed to these words is to be rejected.  More specifically, I hold that the mere utterance of abusive words in circumstances which would not ordinarily cause any of the matters set out in para 72 and, most relevantly, would not reasonably cause the plaintiff to apprehend any threat of physical danger or harbour any fear for her personal safety would not fall within the meanings of “molesting”, “harassing” or “pestering”, as construed.  Therefore such utterance would not be prohibited under para 1(c) of the Order, however disagreeable or annoying the abusive words are. 

77.  Here, the plaintiff’s grounds for contempt lie in the uttering of the abusive words by the defendant.  In respect of the first three incidents, it is not part of her case that being the recipient of those abusive words, she apprehended any fear of physical violence or any imminent danger to personal safety.  Hence the acts complained of and relied upon by the plaintiff do not constitute breaches of the Order.  The defendant cannot be held in contempt for these acts.  (I should add that in respect of the second incident, the plaintiff testified that the defendant pushed her trolley in the direction of her dog.  In his closing submissions, however, Mr Chan made clear that the plaintiff does not rely on the pushing incident.  In the originating summons, the plaintiff has only referred to the use of the abusive language on that occasion as a ground for committal.)

78.  Furthermore, as noted, the utterance of abusive language was not pleaded in the statement of claim at all.  In other words, it was not relied upon as a cause of action.  To interpret para 1(c) so as to include the utterance of abusive words per se would go beyond the legal right to which the plaintiff was entitled under her pleaded case in the first place.  This cannot be right as a matter of principle.

79.  The matter can perhaps be tested by asking this hypothetical question – if at the hearing on 6 November 2017, in addition to paras 1(a) and (b) of the Order, the plaintiff had sought an express injunction to restrain the defendant from swearing at the plaintiff, would the court have granted such an injunction?  I would think the answer is a clear “no” as it is clearly not an appropriate relief on the pleaded facts.

80.  In his oral closing submissions, Mr Chan argued that the purpose of the Order was to keep peace between the neighbours, who should treat each other in a civilised manner.  The Order, he contended, should therefore be interpreted such that the defendant is to be restrained from speaking foul language to the plaintiff.  I am unable to accept this submission. 

81.  In a civil action of this nature, although the court has a wide discretion to grant injunctive relief, the discretion is not an arbitrary one: Clerk & Lindsell at para 29-02.  Generally speaking, an injunction is granted to protect a right of the plaintiff as recognised as a matter of law.  It has been said that one of the functions of the law of tort is to achieve corrective justice, ie “to put the matter right”: see Clerk & Lindsell at para 1-15.  Accordingly, the court is chiefly concerned with stopping the defendant from committing the tortious act complained of and from repeating it or similar wrongful act in the future.  As I understand it, the court’s role is not to positively dictate a model code of behaviour for litigants, however respectable that may be (eg, neighbours do keep peace with each other and do refrain from speaking foul language).  For that reason, Mr Chan’s submission must be rejected.

82.  Although made in a slightly different context, the following remark by Sir Thomas Bingham MR in Burris is relevant here.  His lordship explained why any injunction granted should not exceed what is necessary to protect the rights of the plaintiff.  The starting point is that the rights and liberties of both parties are to be respected and the court would “intervene” only if some legal right of a party is infringed or threatened to be infringed.

“There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.” (at 1380G) (emphasis added)

83.  In conclusion, the mere utterance of the abusive words in the present circumstances does not fall within para 1(c) of the Order, notwithstanding the potentially wide ordinary meanings the operative words are capable of bearing.  This means that the plaintiff has failed to establish that the defendant has violated the Order.

84.  By way of footnote, I would make two observations.

85.  First, in her affirmation, the plaintiff referred to the fourth incident where the defendant swung a plastic bag towards the plaintiff and yelling at her during their short encounter in the common area on the ground floor of the building – see para 34 above.  The plaintiff has not relied on this incident to establish contempt.  And she was not cross-examined on this at trial.  I therefore make no factual finding in respect of the fourth incident.  But I would simply point out that if proved, this is clearly distinguishable from the previous three incidents in that the swinging of the plastic bag at close distance might constitute a physical act directed at the plaintiff capable of causing her to fear for physical injury or danger to her personal safety.

86.  Secondly, if the plaintiff wishes to restrain the defendant from using abusive words towards her, she may have to pursue the relief by claiming against the defendant for harassment.  There are conflicting decisions and judicial statements as to whether harassment is recognised as an actionable tort in Hong Kong.  (The common law position in England before the statutory tort was introduced was also unclear; cf Burris – see para 55 above.)  At the Court of First Instance level, the most notable decision in favour of the existence of the tort is Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, paras 56-61, which has been followed in a number of subsequent cases, see, eg, Shen Xing v Li Jun HCA 1680/2013, 9 April 2014, paras 33-38.  The opposite view was taken in Pong Seong Teresa v Chan Norman HCA 627/2010 and 726/2011, 13 August 2014, paras 59-61.  At the appellate level, conflicting views were expressed in 朱祖永訴香港警務處 HCMP 1676/2002, 27 September 2002, para 22 and Wong Tai Wai David v The Hong Kong SAR Government CACV 19/2003 and 247/2003, 7 September 2004, paras 1, 36-38.  The law on this issue is therefore unsettled. 

87.  In view of the uncertain state of the law in this area, one cannot say with any certainty whether the plaintiff would have any prospect of success in a harassment claim.  I make this second observation mainly to illustrate the point that it would be absurd to construe the Order to cover the mere use of abusive language and to hold the defendant in contempt for doing so when it is far from clear that the plaintiff would in fact obtain such substantive relief based on a claim for harassment.  To uphold the plaintiff’s construction would be tantamount to creating a substantive right in her favour by the back door.  Viewed from this perspective, the construction is untenable.

CONCLUSION

88.  Although the plaintiff succeeds in proving her factual allegations beyond reasonable doubt, as a matter of construction, the defendant’s acts in the three incidents referred to in the originating summons, as proved, does not fall within the terms of the Order.  There is therefore no contempt on the part of the defendant.  I order that the plaintiff’s application for committal be dismissed.

89.  I further make an order nisi that the plaintiff do pay the defendant’s costs of the action, including costs reserved, to be taxed if not agreed, with certificate for counsel.