TANG SHEK KIU v. TANG LIM KWONG

DCCJ 2921/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2921 OF 2012

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DECISION
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Introduction

1.  I handed down a judgment in this action on 7 May 2015 (“the Judgment”), in which I found that the defendant committed trespass over certain property which was in the plaintiff’s possession.  I made an award of damages in the sum of $10,000 in favour of the plaintiff and granted an injunction against the defendant restraining entry into that property.

2.  By a summons dated 2 June 2015, the defendant seeks leave to appeal against the Judgment.  The draft notice of appeal annexed to the summons contains seven grounds of appeal challenging my ruling on both liability and relief.  At the hearing, Mr Edward Chan, SC, appearing with Mr Roland Lau for the defendant, put forward a revised draft notice of appeal, abandoning those grounds of appeal as relating to liability thus confining the challenge solely to the issue of relief.  (Mr Chan did not appear at the trial, which was conducted by Mr Lau for the defendant.)

3.  As revised, there are now five proposed grounds of appeal.  The first one relates to the damages award and the remaining four concerns the injunctive relief.

4.  I shall adopt below the defined terms used in the Judgment, unless otherwise stated.  Further, I shall refer to and rely on the Judgment and shall not repeat its content below.

Legal principles

5.  The principle governing the threshold for granting leave to appeal is not in dispute.  The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance (Cap 336).

6.  On the “reasonable prospect of success” limb, “an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed”: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at §19, per Chu J (as she then was).

The first ground

7.  Under the first ground, the defendant submits that there was insufficient evidence to support the award of damages in that:

(a) The figure of $10,000 was a mere estimate by the plaintiff’s daughter with no particulars provided.

(b) The damaged vegetable in any event belonged to the plaintiff’s daughter but not the plaintiff himself.

(c) The trespass was found to have taken place over the Slope but the evidence of the plaintiff’s daughter was that no vegetable was grown over the Slope.

8.  I shall first deal with the contention outlined in §7(c) above. In the Judgment, I made the finding that “the defendant committed trespass over the Slope … by having workers digging up and damaging the vegetable crop at the bottom of the Slope” (emphasis added) (at §72).  I did not make any finding that the damaged vegetable was located on the Slope.  There is therefore no merit in this contention.

9.  As to the contention set out in §7(a) and (b) above, the plaintiff’s factual case was that he owned the vegetable crop – see §§2 and 5 of the Amended Statement of Claim; §2 of the plaintiff’s first witness statement; and §§3 and 4 of the plaintiff’s daughter’s first witness statement.  In §63 of the Judgment, I stated that I generally accepted the plaintiff’s factual case.  In any event, the allegation that the vegetable belonged to his daughter rather than himself was never put to the plaintiff at trial.

10.  In the course of the defendant’s closing submissions, I asked counsel this question: if the court accepted the evidence of the plaintiff’s daughter on the damaged vegetable, would the court be entitled to award damages to the plaintiff in the sum of $10,000?  To that, counsel for the defendant answered yes without any qualification.

11.  For the above reasons, the challenge to the damages award is simply unarguable.  As Mr Chan accepted at the hearing, the defence counsel’s confirmation at trial would in any event dispose of the first ground of appeal conclusively against the defendant.

The second ground

12.  Under the second ground, the defendant contends that the injunction is not an appropriate relief.  By its nature, the injunction operates prospectively, but the plaintiff enjoys no present or future right over the land and therefore there is nothing to be protected by such an injunction.  The defendant seeks to establish the plaintiff’s lack of right via two routes.

13.  First, the defendant argues that the plaintiff’s tenancy over the northern and middle portions was terminated before the date of the Judgment by operation of section 12(2) of the Limitation Ordinance (Cap 336) and hence the plaintiff has presently no right to possess the land.  The argument runs as follows:

(a) The plaintiff’s tenancy was an oral tenancy and not “a lease in writing”.

(b) The Tso has not received any yearly rent from the plaintiff since the accounting day in March 2012.

(c) The conditions for triggering the deeming provision of section 12(2) of the Limitation Ordinance are satisfied and the plaintiff’s tenancy is deemed to have been determined latest by 1 January 2013.

14.  Secondly, even if the defendant is wrong on the first route and the plaintiff’s tenancy is still subsisting, Mr Chan submitted that the court should have found that there was a tenancy granted by the Tso to the defendant and another individual over the northern portion in June 2013, as alleged by the defendant – see §41 of the Judgment.  On that factual basis, there would be a concurrent lease over the northern portion.  The defendant would become the plaintiff’s landlord in equity and would therefore be entitled to determine the plaintiff’s tenancy by either serving directly a notice to quit on the plaintiff at any time or compelling the Tso (the landlord at law) to serve such notice.  This would, submitted Mr Chan, weigh against the grant of an injunction because the plaintiff’s interest which is supposed to be protected by the injunction can in fact be determined by the defendant at any time.

15.  The plaintiff’s position is that the second ground of appeal raises new points of law which were not argued at trial.  The defendant ought not to be allowed to pursue them now. 

16.  In any event, Mr Benjamin Chain, counsel for the plaintiff, said that the argument outlined in §13 is a bad one because section 12 of the Limitation Ordinance is expressly stated to be “for the purpose of” the Limitation Ordinance and the deeming provision there has no application to the tenancy in the present case and does not operate to determine it as argued by the defendant.

17.  I agree with Mr Chain’s submission.  The wording of section 12 is clear and unambiguous.  The remark made by Romer LJ in the context of the equivalent section in the Limitation Act, 1939 in Moses v Lovegrove [1952] 2 QB 533 at 542, which was relied on by Mr Chain, is directly on point:

“As no notice to quit was given, the tenant could not thereafter be said to be in adverse possession in the ordinary sense, for he remained on under his contractual tenancy. Nevertheless, for the purposes of the Limitation Act, 1939, his tenancy ceased to exist, and there he is deemed to have remained on in adverse possession.” (emphasis added)

18.  The submission that the plaintiff’s tenancy has been determined by operation of the Limitation Ordinance is plainly wrong.

19.  The success of the second route is dependent on the success of the challenge to my factual finding on the alleged tenancy between the defendant and the Tso.  In §66 of the Judgment, I indicated and explained my “serious reservation” as to the genuineness of the alleged tenancy.  I have found in general that the defendant’s credibility is in issue.  On this specific point, I had the benefit of hearing the defendant being subject to extensive cross-examination by Mr Chain before coming to my conclusion.  I do not agree with Mr Chan’s oral submission that no reasonable tribunal could have come to this conclusion.  On the basis of the evidence before me, it was clearly open to me to make the factual finding which I did.

20.  Accordingly, I conclude that the second ground of appeal has no reasonable prospect of success.  (I would briefly add that even if I am wrong on this and I should have found in favour of the alleged tenancy, and even assuming that Mr Chan is correct in his submission that the defendant is now in a position to have the plaintiff’s tenancy determined on six months’ notice (although, as confirmed by Mr Chan at the hearing, no such step had yet been taken to date), it is but a minor factor in the exercise of the discretion in considering whether to grant an injunction.  This factor would clearly be outweighed by the other factors which I took into account in the overall context and which led me to the conclusion that the circumstances “clearly warrant the granting of an injunction of the scope for which the plaintiff now asks” – see §§73 to 76 of the Judgment.)

The third ground

21.  Under the third ground, it is submitted that the injunction operates in a manner oppressive to the defendant.  Mr Chan explained at the hearing that the defendant’s concern is in gist that in practice it would be easy for him to accidentally go across the prohibited area since this narrow strip of land forms part of the access road on the northern portion.  Mr Chan cited a hypothetical example of the defendant taking a taxi home and the taxi driver might just enter the prohibited part of the access road without knowing it. 

22.  I do not consider that there is any merit in this submission.  All the defendant is really saying is that the injunction is inconvenient to him.  No case of oppression has been made out.

23.  This ground of appeal has no reasonable prospect of success.

The fourth ground

24.  Under the fourth ground, the defendant argues that in granting the injunction I failed to take into account the fact that the trespass was a one-off incident, there being no further threat of trespass, and that the plaintiff has no desire of pulling down the retaining wall now standing in place of the Slope.

25.  In the Judgment, I set out in some detail the plaintiff’s factual case on various instances of the defendant dumping construction materials on the northern and middle portions since 2004 – see §§22, 24 and 26.  It is against this background that the trespass which happened in 2012 should be looked at, in particular when considering whether the discretionary injunctive relief ought to be made against the defendant.  Applying the authorities cited in §76 of the Judgment, it was open to the court to exercise its discretion in favour of a prohibitory injunction.  I do not consider that this ground of appeal has any reasonable prospect of success.

The fifth ground

26.  Under the fifth ground, the defendant complains about the form of the injunction as follows.  Since the plaintiff’s interest in the prohibited area arises out of a periodic tenancy which is liable to be terminated by the landlord, the court ought to have expressly qualified the injunction as to its duration and limited its operation to only for so long as the plaintiff has the right to possess the land.

27.  Mr Chain’s reply to this was that this “drafting” point was not raised at trial and further that in the event that the plaintiff ceases to have any interest over the land, the defendant can apply to have the injunction discharged on the basis that there is a material change of circumstances.  In any event, any attempt by the plaintiff to enforce the injunction in such an event would be “laughed out of Court”.  There is therefore no merit in this ground of appeal.

28.  I agree with Mr Chain.

Conclusion

29.  None of the grounds of appeal put forward by the defendant has a reasonable prospect of success.  There being no other reason why the appeal ought to be heard, I dismiss the defendant’s application seeking leave to appeal.

30.  I also make an order nisi that the defendant pay the plaintiff’s costs of the application, to be taxed if not agreed, with certificate for counsel.