BEST GALAXY LTD v. PERSONS OCCUPYING, REMAINING OR USING WITHOUT THE CONSENT OF THE PLAINTIFF PORTIONS OF THE REMAINING PORTION OF LOT NO 2245 IN DEMARCATION DISTRICT 51, FANLING, NEW TERRITORIES, HONG KONG (“THE PREMISES”) AND PERSONS PREVENTING, HINDERING OR OBSTRUCTING BEST GALAXY LTD OR ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR AUTHORISED PERSONS FROM ACCESS TO AND EGRESS FROM, OR ENJOYMENT OR USE OF, THE PREMISES

HCA 1371/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1371 OF 2016

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D E C I S I O N

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1.  This is an application of the plaintiff for an interlocutory injunction against the trespass and private nuisance relating to its land situated at the remaining portion of Lot No 2245 in Demarcation District 51, Fanling, New Territories,  Hong Kong.

2.  An ex parte injunction for a similar purpose was granted by Ng J on 23 May 2016, and this is the return day of the inter parte summons taken out by the plaintiff for the continuation of the ex parte injunction.

3.  The sole defendant in this case is unidentified persons occupying, remaining or using without the consent of the plaintiff of the property. 

4.  This morning I have ascertained that no one comes forward to oppose this application as the defendant to these proceedings.  Therefore, I can treat this application to be uncontested.

5.  Mr Wong, SC, with Ms Leung, for the plaintiff, handed up a second affirmation of Wong Wing-cheung affirmed on behalf of the plaintiff, giving an update of the situation.  In gist, there is not any abatement of the trespass and nuisance under compliant, despite the ex parte order.

6.  Also this morning, this court received a fax from the Legal Aid Department notifying this court of an application of one Mr Leung for legal aid, and I understand that his first application was refused at an earlier time.

7.  The plaintiff acquired the property and became the registered owner of the property in 2004.  It commenced legal proceedings in the District Court against a person to recover possession of part of the property in 2015.

8.  On 23 March 2016, the plaintiff executed the writ of possession with the assistance of the bailiff and recovered possession of that part under complaint in the District Court proceedings.

9.  The legal principles relating to this application is well established, and I only need to refer to the dictum of Poon J (as he then was) in The Church of Jesus Christ of Latter-Day Saints Hong Kong Limited v Park (unreported, HCA1167/2001, 8.11.2001):

“A landowner whose title was not disputed is prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate. On an interlocutory application, such an injunction should, in the absence of exceptional circumstances, be granted unless the defendant satisfies that court that there was an arguable case that she has a right to do which the plaintiff alleged to constitute a trespass. Only if such a defendant could show such an arguable case should the court go on to consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy: Petal v W H Smith (Eziot) Limited & Anor [1987], WLR 853, English Court of Appeal, followed in Lea Tai Property Development Limited v Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193, CA cited with approval by Godfrey Lam J in Turbo Top Limited v Lee Cheuk Yan [2013] 3 HKLR 41.

10.  In the present case, the legal title of the plaintiff is not in dispute and there is no defendant coming forward to show an arguable case that he or she has a right to do what the plaintiff now complains about in respect of the property. 

11.  On the evidence, I am fully satisfied that the plaintiff has the legal title to the property and is in possession of the property. It is entitled to the injunction.

12.  It should be noted that - or I should make it clear that - the right of private ownership of property is not mere common law rights, they are constitutional rights. Article 6 of the Basic Law clearly protects the right of private ownership of property, and in Article 105 it provides that:

“The HKSAR shall, in accordance with law, protect the rights of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.”

13.  I agree with the plaintiff’s submission in its written submissions that rights of land ownership and the rule of law are the core values of a court and the court should protect this core value without hesitation.

14.  The plaintiff fairly draws my attention to the possible defence of the defendant in its written submissions. 

(1)   First, the plaintiff points out that the trespassers may argue that they are merely exercising their freedom of expression and freedom of speech. 

I agree with the plaintiff that this cannot provide the trespassers with an excuse that they have the right to do what they are doing.  Such freedom of speech and expression cannot be absolute and cannot override the constitutionally entrenched rights to protection of property. 

(2)   Second, the plaintiff points out that the trespassers may argue the boundary of the property in question. 

I have studied the plan attaching to the summons, and I am satisfied that the land, being the subject matter of the injunction, is within the boundary of the property. 

15.  In the circumstances, I can see no arguable defence to the plaintiff’s application.  I am fortified in my view that this injunction should be continued and I hence accede to the plaintiff’s application.

(Discussion on costs)

16.  Costs, including those reserved under the ex-parte order, should be in the cause.