XCHRX LAU TING CHUNG v. WONG WAI

HCA 3996/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3996 OF 2001

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D E C I S I O N

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1. On 6 September 2001, the Plaintiff commenced this action alleging that the Defendant, through her agent, trespassed the Plaintiff's residential and business premises and harassed him. The allegations are denied by the Defendant.

2. On the same day, the Plaintiff took out a summons asking for an interlocutory injunction restraining the Defendant in essence from continuing the said wrongful acts. That application is opposed by the Defendant. At the end of an inter partes hearing on 14 September 2001, Chu J granted the injunction sought against the Defendant until today. Today's hearing is for the continuation of that order.

3. The Plaintiff's case is essentially this. The Defendant wrongfully alleges that the Paintiff owes her $4.1 million. Since about mid-August 2001, some males, including a Mr Chin, who were either debt-collectors or held themselves out to be the same, went to his premises and demanded the repayment of that sum by using abusive and intimidating behaviour and language. The said Mr Chin also telephoned the Plaintiff and threatened him. Further, written demand notes were distributed presumably by these people. The Plaintiff alleges that these males were acting on the Defendant's instruction. As stated earlier, although the Defendant has not seriously disputed the incidents referred to above as a matter of fact, the Defendant denies that those males were her agent.

4. The affirmation evidence filed by the parties for the purpose of the present application is voluminous and the allegations and cross-allegations made therein are extremely involved and include matters like:

(1) why the Plaintiff has been going to Zhuhai regularly;

(2) whether the Plaintiff has forged a document to defend the Defendant's claim for the repayment of the debt in a separate High Court action;

(3) whether there is merit in the Defendant's claim for repayment in that other High Court action;

(4) the Plaintiff's present medical condition;

(5) whether the Plaintiff's mobile phone could display the caller's telephone number when the Plaintiff was in Zhuhai in August 2001.

5. Counsel for the Defendant's criticisms of the Plaintiff's affirmation evidence include:

(a) the Plaintiff's conduct is inconsistent with his allegations, e.g. he did not report the matter to the police;

(b) the Plaintiff's case is based on unsupported assertions;

(c) there is an inconsistency regarding the events on 14 August 2001 between the Plaintiff's affirmation and that of a Mr Wan (who deposed on the Plaintiff's behalf);

(d) the Plaintiff's version of events has been contradicted by deponents who can be regarded as independent and unrelated to the defence.

6. Apart from the above, counsel for the Defendant also argues that the alleged wrongful acts were too few and far apart to constitute any nuisance, intimidation or harassment. Further, the evidence does not sufficiently disclose a case of trespass.

7. The factors relevant to granting or refusing an application for an interlocutory injunction is undisputed and can be found in Hong Kong Civil Procedure 2001, para. 29/1/10 (pp. 459-460).

8. Further, the Court's approach in relation to a plaintiff's case which is based on inferences to be drawn has been set out in Cayne v Global Natural Resources plc [1984] 1 ALL ER 225.

9. Bearing the above matters in mind, I conclude that the Plaintiff has been able to establish that there is a serious question to be tried regarding his complaints. There may well be exaggeration(s) or inaccuracy(ies) in the Plaintiff's affirmation evidence but they relate to peripheral matters only and do not affect my conclusion that "a serious question to be tried" has been shown.

10. It is (correctly) not the Defendant's case that her legal right will be affected if she is enjoined from going to the Plaintiff's premises or from intimating or harassing him, nor is it her case that she had done so or will do so in the future. It is (correctly) not her case that she is entitled to do any of these things either. The Defendant however argues that her reputation will suffer if an interlocutory injunction order is granted against her. However, but there is no specific evidence as to how that would result nor as to the extent of the alleged effect on her reputation.

11. For the above reasons, I consider that the "balance of convenience" is in favour of continuing the injunction order made on 14 September 2001 until judgment in this action or further order and will therefore make such an order.