THE INCORPORATED OWNERS OF THE DAHFULDY v. CHEUNG YUK YING ENGRACIA (formerly known as LEUNG CHEUNG YUK YING)

DCCJ 487/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 487 OF 2012

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D E C I S I O N

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1. This is the defendant’s application for leave to be given by this court for appeal to the Court of Appeal.

2. In respect of the first ground of appeal, it is my decision that the defendant disobeyed the traffic instruction issued by the plaintiff.  The defence counsel submits that the defendant had used the green route reserved for visitors car park for several months with the express knowledge and consent of the defendant.  There is simply no evidence to that effect.  The evidence of the defendant can be found in the affirmation of Cheung Yuk-ying filed on 21 September 2012.  Under paragraph 6 she said:-

“It is absurd that I should be denied vehicular access to my property in a building by following the red route specified in the traffic instruction and there is no reason why I should not be allowed to use the same green route reserved for visitors and that is what I did. However, sometime afterwards I was required by the security guards of the building to follow the route shown on the plan attached in schedule 4 to my defence filed on 29 March 2012.”

She did not mention that she was given express consent to use the green route.  In any event, she was not obeying the traffic instruction issued by the plaintiff. There is simply no merit on Ground 1 of the intended appeal.

3. Ground 2 is related to paragraph 12 of the Decision.  Under that paragraph it is stated “It is irrelevant that she could have taken various other routes to her car parking space”.  If she did not follow the traffic instruction in taking various other routes to her car parking space, that is still a breach of the traffic instruction.  That is why it is stated it is irrelevant that she could have taken various other routes to her parking space, because in so doing she is still violating the instruction contained in the traffic instruction.  There is no merit for Ground No. 2.

4. Ground No. 3 relates to paragraph 9 to 10 of the Decision.  The defence counsel submits that this court erred in law and/or in fact inconclusively finding on papers alone and failing to hold that the issue of questions in dispute which ought to re-try as regards whether the manager has power to manage the common parts of the car park by issuing the traffic  instruction.  I cannot see anything wrong with that.  If the documents reveal all the evidence to support such a finding, if there is sufficient evidence to make a finding, that will be sufficient.  It is not necessary to hold a trial in that regard.  We cannot simply regard the documents as papers.  They contain important evidence in the documents.  They are not merely papers.  Ground 3 has no merit.

5. Ground 4 relates to defects in this writ of summons and plaintiff’s affirmation evidence in the course of the submission.  I have expressed the view that even if there are defects in the writ of summons and the plaintiff’s affirmation, that would not annul this application.  The defence counsel has not convinced me to reach a conclusion that by virtue of defects these proceedings should be annulled or fail.  This ground cannot succeed.

6. There is no merit in Ground No. 5.  No merit in Ground No. 6 and no merit in Ground No. 7.

7. In respect of Ground No. 8, the defence counsel submits that the rateable value of the defendant’s property exceeds the statutory limit of $240,000 and so this court has no jurisdiction to grant the injunctive relief sought in the plaintiff’s summons and statement of claim, because the relief sought is a right affecting an immovable property within the meaning of section 52(1)(c) of the District Court Ordinance.  I do not agree.  The rateable value of the defendant’s property has no bearing on the injunctive relief sought by the plaintiff. 

8. I see no merit whatsoever in the defendant’s application.  I therefore dismiss her application for leave to appeal.

9. Costs of this application be to the plaintiff, to be taxed if not agreed, with certificate for counsel.