TANG KA HUNG ROBERT AND ANOTHER v. TANG TIM CHUE AND ANOTHER

HCA3/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3 OF 2006

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DECISION

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1.  The dispute in this action concerns the piece of land registered in the Land Registry as The Remaining Portion of Lot No. 1927 in Demarcation District No. 124, Yuen Long, the New Territories (“Land”). After trial, this court delivered the Judgment on 29 April 2010 (“Judgment”). As the background to the dispute has already been set out in Sections A and B of the Judgment, I will not repeat it here.

2.  After the Judgment was delivered, this court received two applications. The first one is from the plaintiffs, while the second one is from the 1^st defendant. As the plaintiffs and the 1^st defendant had put in detailed written materials in support of their respective applications, this court decided to deal with the two applications on paper without calling for an oral hearing so as to save costs. The following is this court’s ruling on the two applications.

A.        The plaintiffs’ application

3.  In the Statement of Claim, the plaintiffs claimed the following relief: (1) possession of the Land; (2) an injunction restraining the 1^st and 2^nd defendants from trespassing the Land, doing any damage to it or any property thereon or otherwise committing any nuisance thereon; (3) an order that the defendants do forthwith pull down and remove all poles, structures, buildings or any part thereof built by the defendants; and damages. Further, upon commencing this action, the plaintiffs obtained an interim injunction against the defendants on 28 February 2006. (See the Reasons for Decision delivered by Chung J on 4 March 2006).

4.  In paragraph 75 of the Judgment, this court ordered that final judgment be entered in favour of the plaintiffs and against the 1^st and 2^nd defendants for, among others, a declaration that the plaintiffs (in their capacity as executors of the estate of Mr. Tan Sum On (alias Tang Sam On)[1]) are entitled to take possession of and occupy the Land to the exclusion of the defendants (“Declaration”). In addition, this court also granted an injunction along the line sought by the plaintiffs (“Injunction”).

5.  I should also point out that in paragraph 76 of the Judgment, this court explained that the Declaration was granted instead of the usual order of possession because this court was informed at the trial that the 2^nd defendant had already vacated the Land and thus the Declaration would do justice to the parties instead of an order of possession.

6.  After the Judgment was delivered, the plaintiffs submitted a written application raising concern about the effect of the Declaration. In short, the plaintiffs suggested that the defendants had leased the Land to other third parties and were in breach of the injunction previously granted by Chung J. Further, it was suggested by the plaintiffs that after the Judgment was delivered, attempts to recover possession of the Land were not successful even though police assistance was sought. According to the plaintiffs, the Land is occupied by a person with triad background and that the defendants are providing assistance to this person behind the scene. In other words, it is the plaintiffs’ position that the Declaration would not be effective in enabling them to obtain possession of the Land and thus request this court to make an order of possession or other appropriate order so as to assist the plaintiffs to recover possession of the Land.

7.  This court appreciates that recovering possession of land may not always be straightforward even after obtaining a court judgment; besides, if the matters set out in the plaintiffs’ application can be established, this court do have every sympathy for the plaintiffs. However, having considered the matter and the grounds advanced by the plaintiffs, this court regrets that it is not in a position to accede to the request by the plaintiffs. The reasons are as follows.

8.  To begin with, this court doubts if it still has the jurisdiction or power to grant further relief since the Judgment has already been delivered. In other words, this court is functus officio.

9.  Further, even if this court is not functus officio, there is in law no need to vary the order made in paragraph 75 of the Judgment as there are other more appropriate applications that can be made by the plaintiffs to enforce this court’s Judgment. In law, the Declaration and the Injunction would be sufficient to safeguard the interests of the plaintiffs. It is plain from the Judgment that the plaintiffs are entitled to possession of the Land, and thus any other persons do not have any right to occupy or make use of the Land without the plaintiffs’ consent. On the other hand, whether as a matter of fact the defendants comply with the court order is a different question; it is a question of enforcement rather than a question of whether the order is in law sufficient to protect the interests of the plaintiffs. It is of course not the role of this court to advise the plaintiffs what steps they should or can take so as to effectively enforce the Judgment. However, if the matters asserted by the plaintiffs can be established, it is open to the plaintiffs to enforce the Declaration and the Injunction by way of contempt proceedings. (For the avoidance of doubt, this court is not suggesting one way or another whether such contempt proceedings, if to be commenced, should or should not be allowed. That will be a question for the Judge hearing the contempt application.)

B.        The 1^st defendant’s application

10.  After the Judgment was delivered, the 1^st defendant put in a written application inviting this court to change the Judgment (申請更改判詞). This court plainly does not have such a power to change the contents of the Judgment. In any event, this court is not persuaded that there is any reasons to do so. In the circumstances, the 1^st defendant’s application is also refused.