LEE TIN YEUNG v. PERSONS UNLAWFULLY OCCUPYING OR REMAINING ON PART OR PARTS OF LOT NO. 904, D.D. NO. 96 (“THE SUIT LAND”) OR PERSONS DOING SUCH UNLAWFUL ACTS IN OR ON PART OR PARTS OF THE SUIT LAND

HCA 1164/2021

[2021] HKCFI 2892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1164 OF 2021

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DECISION

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1.  This is an application for an interlocutory injunction against the defendants being unknown persons who are essentially alleged to have been interfering with and disturbing the plaintiff’s possession and control of the land in question as well as causing nuisance to the plaintiff. Such conduct of the defendants is said to be unlawful, as it is so described in the title of this action. The reality is that what the defendants have allegedly been doing are said to constitute actionable tort, whether or not such conduct as alleged was in fact unlawful.

The plaintiff’s case

2.  The case of the plaintiff is this.  He has been occupying the land in question as his own since at least 1968.  He and his family, including his daughter and her husband, are occupying the land and residing there now.  The plaintiff has been doing so without any interference or interruption by the registered owner of the land.  He alleges adverse possession, and claims that the title of the registered owner has been extinguished pursuant to the Limitation Ordinance, Cap 347.  Since about June 2020, the defendants now named in this action have intruded into the land and carried out various activities that have obstructed the occupation of the land by the plaintiff and his family.  The activities of the defendant have also caused nuisance to the plaintiff and his family.

3.  So much is said about the basis of the plaintiff’s possessory title to the land by way of adverse possession. However, that is not strictly relevant for the present purpose save as background. The reason is that according to the indorsement of claim, the present action was commenced purely for the injunctive relief against the defendants so named.  There is no mention and, as against the defendants so named, no pleaded cause of claim for possessory title to the land in question.  As highlighted at the beginning, the present action is one in tort against the defendants for their alleged tortious conduct/activities.  Vis-à-vis the named defendants, the plaintiff may commence such an action in his position as the person in actual occupation and control of the land in question.

4.  Of course, the situation would have become different, if any of the named defendants or any other party had come forward to assert the right to carry out any of the activities complained of by the plaintiff on the basis of property right in the land in question.  In that case, the contest between the plaintiff and such party in respect of the property right in the land in question will have to enter the picture.  In that event, the plaintiff would probably have to include his claim in this respect against such party.  However, this is as of today not the situation.

The principles

5.  The principles are trite.  The claim must give rise to serious question to be tried, and the balance of convenience lies in favour of granting the injunctive relief: see Hong Kong Civil Procedure 2021 (Vol 1) at §29/1/8.

Serious question to be tried

6.  Unlike what counsel for the plaintiff perhaps industriously put forward, whether or not the plaintiff has a possessory title in the land as a result of adverse possession does not form an issue to be tried in this action.  That may well be a question vis-à-vis the plaintiff and the paper title owner of the land.  However, the latter is not named as a party in this action.  The defendants named are the unknown persons who carried out the alleged tortious activities on the land against the plaintiff.  The question to be tried in the present action is whether the plaintiff as the person in possession and control of the land in question has a seriously triable claim against such unknown persons in tort for such activities.

7.  The plaintiff has adduced evidence of the possession and control of the land by him and his family.  He has also adduced evidence of the following activities conducted by the defendants:

(1)   hoarding and enclosure of the land by corrugated sheets;

(2)   interference with the drainage facilities connecting to the residence of the plaintiff and his family;

(3)   creation of nuisance by the smoke and foul smell in the course of the defendants’ activities on the land; and

(4)   interference with the plaintiff’s crops grown on the land.

8.  On the basis of the evidence, the plaintiff could found his claim in tort against the defendants for trespass, nuisance and interference with occupation and enjoyment of the land.  Such claim is seriously triable.  As explained above, the plaintiff’s rights arising out of the alleged adverse possession and the alleged easement of drainage do not form part of his claim in tort against the defendants.

Balance of convenience and undertaking

9.  As to the balance of convenience, the plaintiff has filed evidence in respect of the damage and impact of the activities allegedly carried out by the defendants on and in connection with the land to him and his family.  There is adequate evidential basis for this court to come to a view that the injunctive relief sought is necessary to curb such damage and impact, which would not be adequately compensated by way of damages if the plaintiff eventually succeeds in his claim.

10.  Pursuant to the order of Hon Anthony Chan J dated 13 August 2021, the plaintiff had to serve these proceedings on the named defendants in the manner as prescribed by the order, namely, by way of affixing court documents on conspicuous spaces of the land and notice in advertisement in a local Chinese newspaper.  By the affirmation of service, the plaintiff’s solicitors verified the compliance with that order.

11.  Insofar as the defendants are the persons who allegedly carried out such activities complained of by the plaintiff, there is no basis for anticipating that they would be subject to any inconvenience as a result of the relief being sought.  In any event, no one has come forward to contest the present application or assert any inconvenience, notwithstanding service of these proceedings in the manner as previously directed by the court.

12.  What the plaintiff’s counsel did not cover in his submission is that part of the injunctive relief is mandatory in nature, namely, to compel the defendants to pull down and remove the hoarding and objects erected by them.  This has significance in two ways.

13.  First, the normal course for the court is to assess if the plaintiff’s case demonstrates a strong likelihood of success, and that denial of such interlocutory relief, though mandatory in nature, would have serious consequence that he would not be adequately compensated even if he proves his success at the end.

14.  There is at this stage no basis for reasonably conceiving that any of the named defendants may be in a position to claim in their personal capacity a right superior to that of the plaintiff in connection with the land so as to enable the defendants to conduct the complained activities on the land.  In other words, there is no reason for believing that damages would not be adequate compensation to these defendants if it eventually turns out that the injunction was wrongly granted.  On this basis, I am satisfied that the mandatory injunctive relief is also warranted.

15.  Second, and this is related to the preceding paragraph, the plaintiff by affirmation gave his undertaking as to damages. However, he is admittedly retired, and said to be over 90 years old.  No information is given in respect of how he is in such position to honour his undertaking to pay damages.  In view of the fact that he is seeking not only restrictive but also mandatory injunction for the removal of what the defendants have installed on the land, there is a genuine concern for proper and meaningful undertaking as to damages.

16.  Upon taking further instruction, the plaintiff through counsel now offers to pay into court a sum of HK$10,000 for the purpose of such undertaking.  At this stage, I have no reason for taking the view that this is plainly inadequate.

Conclusion

17.  I make an order in terms of the draft order as amended, ie. firstly leave to the plaintiff to amend the summons in line with the amendment as to how the defendants are named pursuant to the order of Hon Anthony Chan J mentioned above; and secondly the interlocutory injunctive relief pursuant to the summons so amended.