LUO JINGXA v. YIP CHUN FUNG

DCCJ 1335/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1335 OF 2016

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DECISION

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1.  This is the plaintiff’s application by summons dated 26 May 2016 for an interlocutory injunction that:-

“The Defendant shall not:-

(a) by himself, his agents or servants or otherwise assault, molest, annoy, threaten or otherwise interfere with the Plaintiff until further order;

(b) approach or attempt to approach the Plaintiff and/or the Plaintiff’s place of residence at Room 612, Lung Shing House, Lower Wong Tai Sin Estate, Kowloon, Hong Kong or any other place of address within a distance of less than 50 yards; and

(c) invite, procure, instigate, directly or indirectly other person or persons to do any of the acts mentioned above.”

Background

2.  The plaintiff married the defendant on 2 September 2005, and a divorce decree nisi was granted on 3 September 2012, subsequently made absolute on 24 October 2012.  They had a few children (the “Children”).  The plaintiff alleged that the defendant was a bad-tempered person, and has a violent disposition and a character of taking revenge.  She also alleged that during the marriage, she suffered verbal and physical abuse.  After the divorce, the plaintiff moved to Room 612, Lung Shing House, Lower Wong Tai Sin Estate, Kowloon, Hong Kong (the “Plaintiff’s Residence”).  However, according to the plaintiff, trouble has followed her.  In essence, she made the following complaints, which formed the basis of her claim and the present application:-

(1)   On or around 19 August 2015, the defendant turned up outside the Plaintiff’s Residence and repeatedly smote the door and shouted loudly with foul languages, to the extent that the plaintiff and her boyfriend, both then inside, were too frightened to open the door.  The matter was reported to the police, who then came and took the defendant away.  However, after the police left him, the defendant went to the Plaintiff’s Residence again, shouting around and smiting the door again.  The plaintiff reported the matter to the police again, who then came again, and the defendant left.  According to the plaintiff, this happened three or four times until the defendant did not go back to the Plaintiff’s Residence again that day.

(2)   On or around 20 August 2015, when the plaintiff and her boyfriend were in Kowloon Tong MTR Station, the plaintiff discovered that the defendant was at a distance about 3 metres away from them.  Then, the defendant rushed to her immediately, snatched her mobile phone and threw it to the ground.  The defendant then punched the plaintiff’s head and her left face for around four to five times and pushed the plaintiff onto the ground.  The defendant’s boyfriend tried to stop the defendant, but only to be punched by the defendant on his head.  The plaintiff and her boyfriend tried to run away, but the defendant chased them.  Someone reported the matter to the police, the police came and arrested him.  The plaintiff was sent to Queen Elizabeth Hospital for medical examination, recording that she sustained multiple injuries to her head, left eye, lips and jaw.  The defendant was charged for the said incident, and was bound over for one year starting on 30 December 2015.

(3)   After the incident on 20 August 2015, the plaintiff changed her mobile phone number.  But on 1 September 2015, the defendant suddenly attended outside the school of the Children and said “something nasty” loudly about the plaintiff in front of other people there.  The Children and the plaintiff were very frightened.

3.  The plaintiff alleged that as a result, she was seized with panic every day.

4.  The plaintiff commenced the present action by Writ of Summons dated 22 March 2016, and took out the present application by Summons dated 26 May 2016.  A Statement of Claim was endorsed on the Writ, pleading the incidents set out in paragraph 2 above.

Application for interlocutory injunction

5.  The defendant is absent at the hearing.  However, the plaintiff still has to satisfy me that the interlocutory injunction should be granted.

Legal principles

6.  The legal principles governing an application for interlocutory injunction are well-established.  The court has to be satisfied that:-

(1)   There are serious issues to be tried.

(2)   The balance of convenience (including adequacy of damages and delay) lies in favour of a grant.

7.  Further, the plaintiff is required to give an undertaking as to damages.

8.  In respect of delay, Rogers VP, delivering the unanimous judgment of the Court of Appeal in King Fung Vacuum Ltd & ors v Toto Toys Ltd & ors [2006] 2 HKLRD 785, said at §20,

“There has traditionally been a strong requirement when interlocutory injunctions have been sought, that the plaintiff must show that it has acted promptly and without delay. Promptly in the circumstances of interlocutory injunctions has been commonly understood to be a period of six weeks or so of unexplained delay and three months with an explanation given for the delay in making application for an injunction. Since the American Cyanamid decision the importance of irreparable damage in an application for an interlocutory injunction is paramount. If there is no irreparable damage demonstrated then the need for an interlocutory injunction has not been shown. This is important because of the approach that the courts take to interlocutory injunctions. They are not the trial of the action and the court is concerned with whether irreparable damage will occur before a trial can take place. It stands to reason that if a party is prepared to allow matters to proceed and takes no action with respect to matters which have been extant for lengthy periods, it lies ill in their mouth to say that there is likely to be irreparable damage and that is the case here.”

Serious issues to be tried

9.  As regards whether there are serious issues to be tried, the Statement of Claim pleaded nuisance to the plaintiff and wrongful interference with the life of the plaintiff.  I shall analyse these causes of action in turn.

Nuisance

10.  First, nuisance.  “The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land” possessed or occupied by the plaintiff (emphasis added): see Clerk & Lindsell on Torts (21^st ed) §§20-01 and 20-63.  “Acts done with the intention of annoying a neighbor and actually causing annoyance will be a nuisance”: see Clerk & Lindsell on Torts, supra, §20-17.

11.  In the present case, the alleged conduct of the defendant on 19 August 2015, in my view, raises a serious issue to be tried as to whether that constituted nuisance.  However, as regards the alleged conduct on 20 August 2015 and 1 September 2015, since that did not relate to the plaintiff’s enjoyment of the Plaintiff’s Residence, such conduct did not constitute any nuisance.

Interference with plaintiff or the life of the plaintiff

12.  Second, interference with the life of the plaintiff.  The plaintiff relied on §8.5 of The Law of Tort published by Butterworths.  Mr Ng, acting for the plaintiff, told me that it is a 2002 edition.  The authors of that textbook said that:-

“It is settled law that injunctions may be awarded in respect of battery, assault, or intentional interference with the person which is actionable under the rule in Wilkinson v Downton.”

13.  The footnote to “Wilkinson v Downton” is:-

“[1897] 2 QB 57. See, eg, Khorasandjan v Bush [1993] QB 727 (injunction in respect of campaign of harassment as a whole)”.

14.  Wilkinson v Downton is a case where the defendant suffered a nervous shock as a result of a practical joke played by the plaintiff.  Khorasandjan v Bush, supra, perhaps is more salient.  That is a case where an injunction in respect of assault, threats of violence and harassing telephone calls was granted.

15.  I think this so-called interference with the plaintiff or the life of the plaintiff is more commonly described as “trespass to the person”, including battery, assault, intentional infliction of injury and false imprisonment as expounded in Chapter 15 of Clerk & Lindsell on Torts, supra.

16.  It is quite clear in the present case that what happened on 19 August 2015 and 20 August 2015 would, if proved, constituted assault and threats thereof.  Further, if proved, there is a serious issue to be tried as to what happened on 1 September could be regarded as a threat of assault.

17.  Mr Ng went further.  He submitted that the defendant’s conduct was committed intentionally to inflict harm on the plaintiff, namely, to cause anxiety to her.  However, it is trite that the harm caused has to be physical injury or a recognized psychiatric illness: see Clerk & Lindsell on Torts, supra, §15-15.  Such anxiety, even proved, is nowhere near any recognized psychiatric illness.

18.  Thus, if I were to grant an injunction, I would not use the unclear terms such as “molest” or “interference with the plaintiff”, which would be difficult to understand and enforce.  I would base the injunction on the terms “nuisance” and “annoyance” in respect of the Plaintiff’s Residence and “assault, battery and threats thereof” in respect of the plaintiff herself.  However, as I will dismiss the application for reasons explained below, I need not work out the exact terms of the injunction.

Balance of convenience

19.  Having been satisfied that there are serious issued to be tried, I still have to be satisfied that the balance of convenience lies in favour of a grant.  I have no doubt that damages would not be adequate for the plaintiff.  I also have no doubt that by granting an injunction restraining the defendant from doing the alleged wrongful acts as identified above, the defendant would not suffer much inconvenience, as the defendant should not commit such acts in any event.  However, I have serious concern about the delay in the present application.

20.  The first act under complaint took place on 19 August 2015 (9 months before the present application was made) and the last act under complaint took place on 1 September 2015 (8 months before the present application was made).  Mr Ng pointed out that the plaintiff was granted legal aid only on 1 February 2016.  But that still means that more than three months had lapsed when the present application was taken out in May 2016.  No explanation has been proffered concerning this delay.  There is also no evidence that the defendant has since 1 September 2015 repeated any of the acts under complaint or similar acts, and committed any acts that would cause concern to the plaintiff.  In fact, given the bind-over against the defendant which has been in force since 30 December 2015 and will expire only at the end of this year, I do not see why the defendant would take the risk of imprisonment or any other forms of punishment by breaching the bind-over.  

21.  This delay and the bind-over coupled with such lack of evidence of further wrongful acts committed by the defendant against the plaintiff only means, on the evidence before me, that the need for any form of injunction has long been gone by the time when the plaintiff took out the present application on 26 May 2016.  

22.  In exercising its discretion, the court does not make any order that is unnecessary.  In the light of the absence of any facts proved by any evidence that the defendant has repeated in the past 9 months or so, or would likely to repeat, any wrongful acts, I refuse the plaintiff’s application.  As the defendant is absent, I shall make no order as to costs, and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

23.  Lastly, I should state the obvious – my dismissal of the present application does not prejudice the plaintiff’s right to make further applications if there is any material change of circumstances.