WONG MALVIN MAN FUNG v. KAN ON TAI as the manager of KAN SAU CHEUNG TSO AND OTHERS

DCCJ 1770/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1770 OF 2013

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DECISION

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1. By a summons taken out on 19 December 2016 (“the Setting Aside Summons”), the 3^rd defendant (“KF” and “KYW”) applies for an order setting aside the interlocutory injunction (“the Injunction”) obtained by the plaintiff (“Wong”) on 12 November 2013.

Background

2. On 25 April 2012, Wong acquired Section C of Lot No 193 in Demarcation District No 117, Yuen Long, New Territories (“Section C”) from Kan Chen Hee and became the owner of Section C since then.

3. At the time of Wong’s acquisition of Section C and at all times thereafter, KF and KYW are the owners of a piece of land adjacent to Section C, ie Section B of Lot No 193 in Demarcation District No 117 (“Section B”).

4. On 16 May 2013, Wong commenced these proceedings.  In these proceedings, Wong claims that he is entitled to have a right of way (“the ROW”) along and over Section B as shown in the plan annexed to the statement of claim.  In relation to this claim, Wong pleads the following in the statement of claim.

“5. The said Kan Chen Hee is also a member of the Tso, and is entitled to right of way and free access to and from various portions of Lot 192 and Lot 193.

……

10. The Plaintiff purchased the Property from the said Kan Chen Hee subject to and with the benefit of all rights and rights of way created by and/or more particularly described, mentioned and/or referred to in the Government Lease of DD 117 under and by virtue of the said Assignment, and is likewise entitled to such right of way which the said Kan Chen Hee was entitled for getting access to and from the Property through over and upon such portions of Section B of Lot 192 and Section D of Lot 193 as more particularly shown on the plan hereto annexed and thereon coloured yellow.

……

12. The 3^rd Defendant also later erected or permitted to be erected on part of Section B of Lot No. 192 in DD 117 fence like structure (metal gate) to obstruct the Plaintiff’s use and enjoyment of such right of way over and upon portion of Section B of Lot No. 192 in DD 117.

13. The 2^nd Defendant is still the registered owner and in possession of Section D of Lot No. 193 and the 3^rd Defendant is still the registered owner and in possession of Section B of Lot No. 192.

14. The 2^nd and 3^rd Defendants have ever since kept the said fence like structures and have so obstructed, hindered and prevented the Plaintiff from exercising his said right of way and intend to continue to do so.”

5. On 9 October 2013, Wong took out a summons to apply for an interlocutory injunction (“the Injunction Summons”) restraining KF and KYW from obstructing or otherwise interfering with the reasonable use and enjoyment of the ROW by Wong, and requiring KF and KYW to open or keep open or alternatively provide Wong with the key(s) for opening the lock of the metal gate on Section B to enable Wong to use and enjoy the ROW.

6. The Injunction Summons is supported by 3 affirmations, ie Wong’s affirmation, the estate agent’s affirmation, and the solicitor’s affirmation.

(a)   It is pertinent to note that in Wong’s affirmation, Wong said:-

“9.   The said Kan Chen Hee is also a member of the Tso, so that he is entitled to right of way and free access to and from various portions of Lot 192 and Lot 193.  When I purchased the Property from him in April 2012, he expressed to me through the estate agent Mr. Andy Yeung that he had free access and right of way to and from the Property by going and passing through over or upon such portion of Lot 192 as shown as shown on the copy of lot index plan annexed hereto and marked “MW-6” and thereon coloured yellow.  There was a metal gate (shown on the said lot index plan and coloured red) all along open and unlocked, so that I and Kan Chen Hee could then freely pass through such portion of Section B of Lot 192 to have free access to and from the Property.  The land surface of such portion of Section B of Lot 192 is all along paved as a concrete path.

……

12.   I therefore purchased the Property from Kan Chen Hee subject to and with the benefit of all rights and rights of way to which he was at the material times likewise entitled for getting access to and from the Property, including such through the said metal gate shown and coloured red on the said lot index plan being portion of Section B of Lot 192.  Even during my inspection of the Property on the day before completion of my purchase of the Property, the said metal gate on portion of Section B of Lot 192 was still unlocked and open so that I could enter and leave the Property without obstruction through such metal gate.

13.   However shortly after completing my purchase of the Property on 25^th April 2012, when I tried to enter the Property through such metal gate on portion of Section B of Lot 192, the 3^rd Defendant locked the said metal gate and did not allow me to enter the Property by going through such metal gate on portion of Section B of Lot 192. Kan Fong (one of the 3^rd Defendant) said that I could not have access and right of way through such portion of Section B of Lot 192 because I am not a member of the Tso.”

(b)   The solicitor’s affirmation was made by Mr Jim Yiu Ming, the solicitor acting for Wong.  In that affirmation, Mr Jim said:-

“2. On or about Thursday, 7^th November 2013, I did serve on the 3^rd Defendant Kan Fong and Kan Ying Wah by putting into prepaid envelope duly addressed to the 3^rd Defendant at their last known address, namely [the TSW Address] a sealed copy of the Amended Writ of Summons duly issued in this action together with the prescribed forms of Directions for Acknowledgment of Service of Amended Writ of Summons and Acknowledgment of Service of Amended Writ of Summons (in triplicate) and copies of the Summons filed herein on 9^th October 2013, Affirmation of Wong Malvin Man Fung filed herein on 9^th October 2013 and the exhibits thereto and Affirmation of Yeung Yee and Tai Siu Kwan both filed herein on 9^th October 2013 and mailing the same by registered post to the said last known address of the 3^rd Defendant.

……

4.  The said documents are not returned to my office by return post from the Post Office, so it is in the opinion of the Plaintiff that the said documents were duly served on the 3^rd Defendant and should have come to their knowledge or notice within 7 days after mailing the same to them by registered post as aforesaid.”

7. The Injunction Summons was heard by HH Judge Chow on 12 November 2013. KF and KYW were absent in that hearing.  Having heard the submissions made by Wong’s solicitors, the court made an order in terms of the Injunction Summons and granted the Injunction.

8. Since then, nothing happened in these proceedings for more than 3 years.  On 19 December 2016, KF and KYW issued 2 summonses:-

(a)   a summons for leave to serve the acknowledgement of service and defence within 14 days; and

(b)   the Setting Aside Summons. 

 By consent, there is an order in terms of the first summons, and the Setting Aside Summons is adjourned for arguments.

9. KF has filed 2 affirmations in support of the Setting Aside Summons, in which KF said, inter alia:-

(a) Since his birth in 1953, he has been residing on Section B.

(b) On 30 September 2016 in the afternoon, he was informed by his wife over the phone that 3 males were on Section B and they had removed and changed the lock on the metal gate.  KF immediately returned to Section B and discovered that the lock had been changed.  The 3 males had already left.

(c) Shortly thereafter, he discovered a document was in the mailbox on Section B.  That document was a sealed copy of the Injunction.  This was the first time he became aware of these proceedings.

(d) He made enquiries with KYW.  KYW was not aware of these proceedings.

(e) KF therefore engaged solicitors to conduct enquiries. His solicitors found out that Wong served the documents in these proceedings by sending the same to the TSW Address.

(f) KF never owned the property at the TSW Address and never resided at the TSW Address.  From 2000 to 2005, KYW and his wife, So Yee Hung, resided at the TSW Address.  During the same period, So Yee Hung was the owner of the property at the TSW Address.  That property was sold in October 2005, and KYW and So Yee Hung had moved out from the property after selling the same.

(g) KF and KYW had never been made aware of these proceedings in 2013, and hence they did not file any acknowledgment of service or defence in 2013, and did not attend the hearing of the Injunction Summons on 12 November 2013.

10. Mr Jim on behalf of Wong filed an affirmation in reply, which is the 2^nd affirmation made by Mr Jim.  In that affirmation, Mr Jim said:-

“2. The address of Kan Fong and Kan Ying Wah at [TSW Address] was ascertained from the copies of Assignment and Deed of Gift registered in the Land Registry by Memorial No. YL188299 and YL1000291 respectively by virtue of which the 3^rd Defendant acquired the title of Section B of Lot No. 192 in DD 117 on which the subject metal gate was erected for obstructing the Plaintiff’s right of way to and from his property at Section C of Lot No. 193 in DD 117. The copies of such Assignment and Deed of Gift can be produced to confirm such last known address of the 3^rd Defendant for my service of the Amended Writ of Summons on or about 7^th November 2013 as stated in my Affirmation filed herein on 12^th November 2013.

3. On or about 18^th January 2014, at about 4:30 p.m., I together with Yeung Yee (also known as Andy Yeung, the estate agent who signed the Affirmation filed herein on 9^th October 2013) visited the 3^td Defendant’s land at Section B of Lot No. 192 in DD 117 where the subject metal gate situated and posted up there (which was the conspicuous place) and inserted into the letter box of such metal gate sealed copies of the said injunction order dated 12^th November 2013.

4. Since then, Yeung Yee confirmed to me that he did from time to time communicate with KAN FONG of the 3^rd Defendant about his actual knowledge of this legal action and the said injunction order.

5. Despite such injunction order, the 3^rd Defendant still refused to open such metal gate on Section B of Lot No. 192 in DD 117 or provide the key(s) for opening the lock of such gate to the Plaintiff and continued the obstruction to the Plaintiff’s right of way to and from Section C of Lot No. 193 in DD 117 through such gate of the 3^rd Defendant on Section B on Lot No. 192 in DD 117.

6. On 28^th September 2016, I wrote a letter to various police stations in Yuen Long District to mention about the situation and about my intended visit to the site of such gate on Section B of Lot No. 192 in DD 117 together with locksmith for the purpose of changing the lock of such gate and clarify that we had no intention to damage anything but open the lock of the gate for enabling the Plaintiff to have free and uninterrupted access to and from his property through such gate, and confirm that we would provide keys to anyone in need of opening the lock or locking up the gate again. There is now produced and shown to me marked “JYM-1” a copy of such letter to the police stations.

7. In the afternoon of about 30^th September 2016, I together with the said Yeung Yee and locksmith visited the site of such gate on Section B of Lot No. 192 in DD 117 and changed the lock of such gate, and provided the keys for opening such lock to a woman, who alleged to be family member of KAN FONG of the 3^rd Defendant.

8. At that time, the woman did contact KAN FONG who communicated with me over mobile phone during which I mentioned to him about my change of lock of such gate and further insertion of another sealed copy of such injunction order into the letter box of such gate again and providing keys of new lock of such gate to his family members for common access through such gate.

9. After 30^th September 2016, the 3^rd Defendant did report to the police and police officer did enquire with me and I repeated to the police about what I mentioned in the said letter dated 28^th September 2016, which the police acknowledged.

10. After the change of lock of such gate on Section B of Lot No. 192 in DD 117, the Plaintiff and his family members could get access through such gate to and from his house on Section C of Lot No. 193 in DD 117.

11. The purpose of service of the Amended Writ of Summons and injunction order was for giving notice to the 3^rd Defendant about these legal proceedings.  They clearly have had knowledge in these 3 years, but none of them had done anything to contest the proceedings or apply to set aside such injunction order until as late as 19^th December 2016 since 12^th November 2013.”

The issues

11. Ms Cecilia To, counsel for KF and KYW, submits that the Injunction should be set aside for the following reasons:-

(a) Wong knowingly and intentionally served the amended writ of summons, the Injunction Summons, Wong’s affirmation and the estate agent’s affirmation (collectively “the Injunction Documents”) to an address where KF and KYW would not have notice of.

(b) After obtaining the Injunction, Wong took no step to bring his claim to trial for more than 3 years.  Such a delay is a compelling reason for discharging the Injunction.

12. Mr Jim for Wong submits that the Setting Aside Summons should be dismissed for the following reasons:-

(a) The Injunction Documents were duly served on KF and KYW by sending the same by prepaid ordinary post to the last known address of KF and KYW, ie the TSW Address.

(b) KF and KYW had knowledge of the Injunction for more than 3 years and took no action to set aside the Injunction.  They only made an application for setting aside the Injunction after Wong sending representatives to Section B to change the lock of the metal gate on 30 November 2016.

(c) Wong has a meritorious claim against KF and KYW, and KF and KYW have no arguable defence to the claim.

13. In my view, the issues to be determined are as follows:-

(a) whether the Injunction Documents have been properly served on KF and KYW;

(b) whether there is any delay by Wong in prosecuting these proceedings and if yes, whether such a delay would have an impact on the Injunction;

(c) whether there is any delay by KF and KYW in applying for setting aside the Injunction and if yes, whether the delay would have an impact on the setting aside application; and

(d) merits of Wong’s claim.

Service

14. Mr Jim submits that the first hearing of the Injunction Summons before HH Judge Chow was on 5 November 2013.  In that hearing, he told the court that his clerk had served the Injunction Documents on KF and KYW by inserting the same into the letter box on the metal gate on Section B.  The court was not satisfied that there was sufficient service and asked Mr Jim to conduct some further enquiries.  Mr Jim then served the Injunction Documents by sending the same to the TSW Address.  Thereafter, in the hearing on 12 November 2013, the court granted the Injunction.

15. I have asked Mr Jim and Mr Jim confirms that no affidavit has been filed to prove that the Injunction Documents have ever been served on KF and KWY by insertion into the letter box on the metal gate on Section B.  Mr Jim has tried to offer an undertaking to file an affidavit on the point after this hearing. In my view, the problem cannot be solved by the undertaking offered by Mr Jim. Whether the Injunction Documents have ever been properly served on KF and KYW is a controversial issue in this hearing.  If I allow Wong to put in a further affidavit to support his case, as a matter of fairness, I have to give leave to KF and KWY to file some further affidavit evidence and there would be delay in resolving this setting aside application.  At all times, Wong is legally represented in these proceedings, and Wong should file all the evidence in support of his case before this hearing.  I decline to give any indulgence to Wong to file a further affidavit.  I would proceed on the evidence before me.

16. Mr Jim relies upon §2 of his affirmation in reply to contend that at the time of the service of the Injunction Documents, the TSW Address was KF and KYW’s address last known to Wong.  Pursuant to the direction given by me on 4 July 2017, Mr Jim has produced the Assignment and the Deed of Gift mentioned in that paragraph for my inspection.  Having seen the documents, it is clear that only the Assignment concerns KF, and the TSW Address does not appear on the Assignment at all.  There is simply no basis showing that the TSW Address was KF’s address last known to Wong at the time of the service of the Injunction Documents.

17. Further, in §13 of Wong’s affirmation, Wong expressly said that shortly after completing the purchase of Section C on 25 April 2012, when he tried to enter Section C through the metal gate on Section B, KF did not allow Wong to do so and said that Wong could not have a right of way over Section B.  This is clear evidence showing that Wong actually knew that KF was residing on Section B before the commencement of these proceedings.

18. In §3 of his affirmation in reply, Mr Jim mentioned that on 18 January 2014, he and the estate agent visited Section B and posted up there and inserted into the letter box of the metal gate on Section B copies of the Injunction.  This is the only evidence on the service of the Injunction.  It is important to note that Wong has never attempted to serve the Injunction on KF and KYW by sending the same to or leaving the same at the TSW Address, or by sending a letter to the TSW Address requesting for an appointment to be made for personal service of the Injunction.  If the TSW Address is really KF an KYW’s address last known to Wong, it is inexplicable that Wong does not do all these.

19. In the writ of summons, Wong put down Section B, not the TSW Address, as KF and KYW’s address.  As a matter of law, a plaintiff has an obligation to state the defendant’s address on the writ of summons with as much exactitude as possible.  See Hong Kong Civil Procedure 2017, Volume 1, §6/1/12.  The writ of summons itself is evidence showing that at the commencement of these proceedings, KF and KYW’s address last known to Wong was Section B and not the TSW Address.

20. In the Injunction Summons, Wong clearly and unequivocally put down that the summons was to KF and KYW at Section B, not at the TSW Address.  The Injunction Summons itself is evidence showing that at the time of summons, KF and KYW’s address last known to Wong was Section B and not the TSW Address.

21. Having considered the evidence before me, I conclude that at the time of the service of the Injunction Documents, Wong knew that KF and KYW’s last known address was Section B and not the TSW Address.  Further, there is no evidence showing that the TSW Address was KF and KYW’s usual address at that time.  In the circumstances, sending the Injunction Documents to the TSW Address is not valid and proper service of the Injunction Documents.

Wong’s delay in prosecuting these proceedings

22. Wong commenced these proceedings in September 2013.  After obtaining the Injunction on 12 November 2013, Wong has not taken any step to bring his claim to trial.  Clearly, Wong has delay in prosecuting these proceedings.

23. After obtaining an interlocutory injunction, a plaintiff cannot sit on the injunction but must bring the matter to trial with reasonable diligence. If he adopts a dilatory attitude, the delay itself may constitute a ground for discharging the injunction.

24. In Newsgroup Newspapers Ltd v Mirror Group [1991] FSR 487, Hoffmann J (as he then was) said at 489:-

“An interlocutory injunction is an order which restricts a defendant’s liberty at a time when there has been no finding of wrongdoing by the court. It is done in order to preserve the position, pending a determination of the merits, in cases when the court thinks that justice so requires. In my judgment it is incumbent upon a plaintiff whose position has been protected in that way by an interlocutory injunction to proceed with the action with due diligence so as to limit as far as possible the period during which the defendant’s liberty is restricted without there having been any determination of the merits.” (Emphasis added)

  The learned judge went on to say at 490:-

“Mr. Thorley, who appears for the plaintiffs, referred me to the general statement of principle by Buckley L.J. in Chanel Limited v. Woolworth & Co. [1981] W.L.R. 485 dealing with the circumstances in which application can be made for the variation or discharge of an interlocutory injunction. Buckley L.J. said (at page 492):-

‘Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.’

This is not a case in which the defendant is seeking to refight matters which could have been fought in 1988. The question is whether the inordinate and inexcusable delay since 1988 constitutes a change of circumstances within the meaning of Buckley L.J.’s statement which would justify an application for discharge.  In my view, for the reasons which I have given, it does.”

See also Magnitogorsk Integrated Iron and Steel Works and Another v Varex & Co GMBH and Others (HCA 17492/1999, 27 November 2007), [25]-[30].

25. Recently, the principles have been summarized in Steven Gee’s Commercial Injunctions (6^th Edition).

  At §24-028:-

“(i) The principles

The general principles are that:-

(1) a claimant who has obtained an injunction, search order or other interim remedy is bound to get on with his action as rapidly as he can;

(2) he is not entitled to retain the relief except on the basis that the proceedings are progressed promptly and without unnecessary delay;

(3) if there is delay, the relief may be discharged; and

(4)  in deciding whether to discharge the relief and not to re-grant it the court is exercising a wide discretion taking into account all the circumstances and bearing in mind the need to deter other litigants from delaying pursuit of proceedings in which an injunction has been granted. Therefore the exercise of the jurisdiction also has a disciplinary aspect.”

At §24-030:-

“(ii) The application of the principles

…… However, the court will not always discharge the injunction where there has been delay, even though the delay has been substantial. The court will take into account all the circumstances of the case, including the following:-

(1) whether the delay was the result of a deliberate decision on the part of the claimant;

(2) the length of the delay, and any explanations put forward by the claimant (e.g. the pursuit of settlement negotiations, or difficulties in funding the pursuit of the proceedings);

(3) the degree of prejudice liable to be caused to the claimant if the injunction is discharged;

(4) whether the claimant sought to rectify the position and proceed with the action or whether the delay is still continuing at the time of the hearing;

(5) the degree of prejudice caused to the defendant as a result of the delay. This should be shown by evidence and not merely based on the assertions of counsel;

(6)  whether the defendant has through his conduct either caused the delay or contributed to it.”

26. Wong has not taken any step to bring his claim to trial for more than 3 years and has been just sitting on the Injunction.  The delay is the result of the deliberate inaction of Wong, and the delay is substantial.  The delay is not caused or contributed by KF or KYW.  There is no evidence showing what prejudice Wong would suffer as a result of the discharge of the Injunction. Although there is no evidence showing any prejudice caused to KF and KYW as a result of the delay, after balancing all the aforesaid, I am of the view that the overall result is in favour of discharging the Injunction.

No delay by KF and KYW

27. I note that Mr Jim in §§4 and 5 of his reply affirmation said that since about 18 January 2014, the estate agent Yeung Yee confirmed to him that Yeung Yee did from time to time communicate with KF about KF’s actual knowledge of these proceedings and the Injunction, but KF and KYW still refused to open the metal gate or provide the key(s) to Wong.  However, there is no affidavit from Yeung Yee confirming these.  Further, even if Mr Jim has accurately related what Yeung Yee had told him, I do not accept that the assertion is believable. If there is any truth in this assertion, naturally Wong would have taken action to enforce the Injunction shortly after 18 January 2014.  However, as shown in the evidence, the earliest and the only enforcement action taken by Wong is the incident on 30 November 2016.

28. I accept KT’s evidence that he and KYW only became aware of these proceedings shortly after 30 November 2016.  They took out the Setting Aside Summons on 19 December 2016.  In my view, there is no delay by KF and KYW in applying for setting aside the Injunction.

Merits of Wong’s claim

29. In order to obtain an interlocutory injunction, a claimant would need to show a serious issue to be tried, which is not a very steep hurdle.  As said by DHCJ G Lam SC (as he then was) in Hong Da Development & Investment Holdings Co Ltd v China Aoyuan Property Group Ltd (HCA 1377/2011, 19 December 2011):-

“86.  I remind myself that the test of serious issue to be tried is “not a very steep hurdle” (Re Billion Shipping Ltd [2003] 2 HKLRD 674 per Chu J at para 28) and that so long as there is a serious issue it matters not whether the court thinks that the plaintiff’s chances of success at trial are 90% or 20% (Alfred Dunhill Ltd v Sunoptic SA [1979] FSR 337 at 373 per Megaw LJ).”

30. For the purpose of considering Wong’s claim in the context of an interlocutory injunction, I am prepared to proceed on the assumption that the facts pleaded in the statement of claim are true.  In my judgment, even if with this assumption, the case pleaded by Wong is defective, and Wong is not entitled to have judgment against KF and KYW on this pleaded case.

31. In claiming for a right of way, the claimant must set out the basis of his claim with clarity in his statement of claim.  See Bullen & Leake & Jacob’s Precedents of Pleadings (18^th Edition), volume 2, §93-07:-

“…… in actions for obstruction of private rights of way, the basis on which the claimant claims to make out his title to the way should be specifically pleaded.”

32. Looking at the case pleaded by Wong in his statement of claim, all he said is his predecessor-in-title, Kan Chen Hee, was a member of the Kan Sau Cheung Tso and was entitled to right of way and free access to and from various portions of Lot 192 and Lot 193, and since Wong had purchased Section C from Kan Chen Hee, Wong was entitled to the ROW claimed.  There are numerous problems here:-

(a) On what basis Kan Chen Hee was entitled to right of way and free access to and from various portions of Lot 192 and Lot 193;

(b) If Kan Chen Hee’s entitlement is based upon an express grant, the express grant is contained in which document;

(c) If Kan Chen Hee’s entitlement is based upon an implied grant, the implied grant is implied from what;

(d) Whether Kan Chen Hee’s entitlement includes the specific ROW now claimed by Wong;

(e) If yes, the material facts in support of the inclusion.

33. In my judgment, the present statement of claim does not disclose a reasonable cause of action against KF and KYW.  This is a further reason in support of discharging the Injunction. 

Conclusion

34. For the reasons above, the Injunction ought to be set aside.  Given the substantial delay in prosecuting these proceedings and there is no reasonable cause of action against KF and KYW in the present statement of claim, I refuse to re-grant the Injunction to Wong. 

35. Having heard submissions on costs, I am of the view that costs should follow the event with a certificate for counsel.  Those costs have to be paid forthwith.

36. I order that the Injunction be set aside with costs to KF and KYW forthwith, with a certificate for counsel.  I summarily assess those costs at HK$60,000.

37. I thank Mr Jim and Ms To for the helpful assistance provided to the court.