SUN YUEN WAI UWINS v. YEUNG SZE YAN AND OTHERS

DCCJ 1755/2019

[2022] HKDC 1196

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1755 OF 2019

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BETWEEN

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JUDGMENT

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1.  At the material time, the plaintiff was the owner and occupier of 1^st Floor, House 137 of Villa Pinada, No 88 Hong Po Road, Tuen Mun (respectively “Villa Pinada” and “P’s Flat”), while the 1^st defendant (“YSY”) was the owner, and the 2^nd defendant (“Mui”) was the tenant and occupier, of the flat directly above, namely 2^nd Floor, House 137 of Villa Pinada (“D’s Flat”).

2.  The plaintiff now claims against Mui for nuisance caused by noise and breach of the Deed of Mutual Covenant (“the DMC”) and also claims against YSY for having permitted it.

3.  The plaintiff knew full well that at the material time the other occupants of D’s Flat were Mui’s wife, and since June 2015, their new born baby. They were not named as defendants but all unknown persons occupying D’s Flat were named as the 3^rd defendant instead. At trial, the parties were content to proceed on the basis that Mui would be liable for the nuisance, if any were established, committed by his wife and/or his baby.

4.  It is common ground that Villa Pinada is a low density estate offering relatively quiet and peaceful living environment.

5.  The plaintiff pleaded that since the Mui family moved into D’s Flat in February 2014, but not before, there had been excessive noise emanated from D’s Flat[1].

6.  Mui and his wife occupied D’s Flat as their home. As said, in June 2015, their baby boy was born.

7.  It is not seriously disputed that there were a lot of arguments between the plaintiff and the Mui’s family after the baby was born. From early 2016 to early 2019, the plaintiff had made 31 complaints to ISS EastPoint Properties Limited (“ISS”), the estate manager of Villa Pinada, about incidents of noise emanating from the D’s Flat. On some of those occasions, the plaintiff reported to the police. Those incidents will be listed below.

8.  In around January 2019, the plaintiff installed a surveillance camera at the outer corner on the top of the glass roof of the terrace of P’s Flat with the lens facing the windows of the living room of D’s Flat. Mui reported this to the police as a violation of privacy. Mui in his pleadings[2] also complained about this violation of privacy and counterclaimed for damages. The plaintiff in oral evidence initially denied that the surveillance camera was installed to, or could, monitor the living room of D’s Flat. When pressed and being shown a picture taken from inside the living room in D’s Flat depicting the camera and how it was positioned[3], the plaintiff unwillingly admitted it. I so find.

9.  On 9 April 2019, the plaintiff commenced this action.

10.  On 30 September 2019, Mui moved out of D’s Flat, having terminated his tenancy before its expiry which would have been on 10 February 2020. Indeed, since having filed his Defence and Counterclaim in person on 28 August 2019, Mui has not participated in this action.

11.  Also in September 2019, YSY sold D’s Flat.

12.  After the defendants no longer owned or occupied D’s Flat respectively, the basis for obtaining the injunctions sought to enjoin the alleged nuisance no longer existed. What remained in dispute would be the liability to pay damages which, as will see, would not be much. Despite the fact that the gravamen of the matter was already so removed in the early stage of this action, but regrettably, the parties did not find themselves able to come to an amicable resolution and have to insist on a trial to resolve what is now a relatively minor matter.

13.  The plaintiff has all along been legally represented until May 2021. She acted in person at trial. YSY was represented by Mr Chris Ng of counsel. Mui was absent at trial.

14.  The plaintiff was the only witness for her case, while YSY and her older sister Yeung Sze Nga (“YZN”) gave evidence for the 1^st defendant’s case.

The relevant provisions in the DMC and what amounts to permit or suffer

15.  The plaintiff claims that YSY and Mui have breached the following provisions in the DMC of Villa Pinada:-

Clause 6 of the SECOND SCHEDULE:-

“Not to use or permit or suffer any Unit and/or House and/or Carparking Space of which he is the Owner to be used for any illegal or immoral purposes nor do, cause or permit or suffer to be done any act or thing in any such Unit and/or House and/or Carparking Space or other portion of the Development which may be or become a nuisance or annoyance to or cause damage to other Owners and residents for the time being of the Development.”

Clause 26 of the SECOND SCHEDULE:-

“No owners or residents shall make or permit any disturbing noise in this Unit and/or House especially outside normal working hours or do or permit anything to be done which will interfere with the rights comfort and convenience of other occupants. No musical instruments may be played nor shall wireless or sound production, reproduction or recording equipment be operated between 11:00 p.m. and 7:00 a.m. in such a way as to disturb or annoy any other residents of the Development or any part thereof”

16.  In the case of YSY, the plaintiff says that she has permitted or suffered Mui and his family to continue the nuisance.

17.  As to what amount to “permit or suffer”, Mr Ng relies on the following 2 passages in Berton v Alliance Economic Investment Co [1922] 1 KB 742, which were cited with approval by the Court of Appeal in Realty Harvest Limited & Others v Gold Margin Development Limited & Another [2001] HKC 234:-

“It is not suggested that there is any difference between the words ‘permit’ and ‘suffer’ in this context, and I treat them as having the same meaning. ….. To my mind the word ‘permit’ means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man’s power to prevent it. Acts which fall short of that, though they be acts of sympathy or assistance, do not amount to permission at any rate in the covenants with which we are dealing…” (Atkin LJ at p 759)(Mr Ng’s emphasis)

“The onus being on the plaintiff to establish a permission or sufferance what is the meaning of a covenant not to permit or suffer an act? It does not mean that the covenantor will not sympathize with the person who is doing the act, or that he will not tell that person what he honestly believes his legal position to be. It does not include an obligation at all costs to take steps to prevent the act. Its scope is less extensive than that. …..” (Bankes LJ quoted from the judgment of Bayley J in Hobson v Middleton) (Mr Ng’s emphasis)

18.  For completeness, I would mention that in her Re-re-Amended Statement of Claim the plaintiff also pleaded Clauses 27 and 39 of the Second Schedule of the DMC. The former prohibits the playing of mahjong between 11:00 pm to 7:00 am in such a way as to cause disturbance. The latter provides that each owner shall observe the Estate Rules and Club Rules. There is no complaint here that the Mui family had played mahjong at those hours, or had played mahjong at all, or that they or YSY have breached any Estate Rules or Club Rules. These 2 clauses are thus completely irrelevant.

General principles on the tort of nuisance caused by noise

19.  These general principles have been conveniently summarized in Kwong Yiu Keung Stanley and Leung Pui Yin v Chiu Sin Shum & Another (DCCJ 5745/2017, unrep, 5 February 2021, HHJ Andrew Li):-

(a) Nuisance is “an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of … his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land”: Clerk & Lindsell on Torts, 22^nd edition, at §20-01.

(b) “The courts in deciding what is the permissible limit in inconvenience and annoyance between neighbours and in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property. No precise or universal formula is possible but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society … Further the inconvenience must be ‘an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or daily modes and habits of living, but according to plain and sober and simple notions among the English people’ per Knight Bruce V-C in Walter v Selfe (1851) 4 De G & S 315, 322’”: Capital Prosperous Ltd v Sheen Cho Kwong [1999] 1 HKLRD 633 at 639H-I;

(c) There is no absolute standard to apply as to what degree of interference, disturbance, or annoyance amounts to a nuisance; it is always a question of fact and circumstances including the standard of comfort or convenience of living of the average man taking into account the character of the neighbourhood and the time of the commission of the act which may render an act which will usually be lawful to become wrongful: Tam Wai Cheung Roger & Anor v Goodwell Property Management Limited (DCCJ 2262/2013, unreported, 11 January 2016) and Clerk & Lindsell at §§20-10, 20-13 and 20-16.

(d) Where the interference is intangible, the plaintiff is not required to prove that the activity producing the interference is unreasonable, only that its effect is unreasonable: So Kwok Yan Bernard v Lau Wing Chung (DCCJ 2343/2012 unreported, 20 March 2015) at §112.

(e) In deciding whether the noise nuisance is substantiated, the court shall not take into account the subjective sense of sound of the complainant: Ng Yuen Han v Lam Fei Fui [2013] 3 HKLRD 608 at 615.

(f) It is not necessary, in interference nuisance cases, to show any actual financial or physical damage or injury to health since the “damage” is the annoyance caused: Clerk & Lindsell at §20-27.

(g) An occupier of land who did not create the nuisance but has allowed it to continue will be liable for that nuisance if with knowledge or presumed knowledge of its existence and being in a position to take effective steps to bring it to an end, he fails to take any reasonable means to do so: Smeaton v Ilford Corp [1954] Ch 450 at 462.

20.  Mr Ng particularly relies on the observation of HHJ David Lok (as he then was) in Hu Wei Hsin v Ma Hung Wing (DCCJ 273/2011, unrep, 3 June 2011) as being particularly apposite in the present case:-

“In particular, the law requires everyone in an organized society to put up with a certain amount of discomfort and annoyance caused by the activities of his neighbours.” (at §39)

The noise complaints

21.  The plaintiff complains that:-

“14. Since about early 2016, the Plaintiff noticed that the Noises coming from the Defendant’s Unit caused by:-

(a) heavy footsteps and running at all parts of the Defendants’ Unit;

(b) dropping and dragging of heavy objects onto the floor of the Defendants’ Unit;

(c) knocking, banging and throwing of objects onto and/or along the floor of the Defendants’ Unit;

(d) knocking, banging throwing objects onto bathtub of the Defendants’ Unit;

(e) dragging of vacuum cleaner along the floor of the Defendants’ Unit;

(f) repeated flushing of toilet water;

(g) sudden very loud child yielding, crying and shouting.

15. The Noises:-

(a) could be heard at intermittent times throughout the day;

(b) occurred during both daytime and night time, including late at night at times as late as 11:00 pm and early in the morning as early as 5:00 am;

(c) during those periods, the Noises were frequently and suddenly recurring at intervals a minute to several minutes;

(d) got intensified and frequent after night time for the times from 1:00 am to 3 am on every weekday;

(e) could be heard in different parts of the Plaintiff’s Unit including the living room, the master bedroom, bedrooms, kitchen and bathroom.

16. The Noises were so disturbing, therefore since February 2016, the plaintiff made multiple complaints with ISS EastPoint Properties Limited, the Management Company …”[4]

22.  In her witness statement, the plaintiff repeated the above and mentioned and relied on ISS’s record of her complaints (“the Record”)[5]. In oral evidence, the plaintiff confirmed that the details of the noise incidents were as those recorded in the Record. The Record was in a tabular form. For ease of reference, I reproduce below the Record (insofar as they recorded the plaintiff’s complaints of noise)[6], and add a column at the right with the heading “Incident”. In this Judgment, I will identify and refer to a particular incident by the incident number in the below table (“the Table”).

Incident	日期	時間	投訴事項	跟進事項	警察檔案	2樓回覆
1	17/2/2016	約00:55	接獲 閣下來電投訴2樓單位發出聲浪。	本處職員到梯間了解，聽到嬰兒聲音。並聯絡2樓單位盡量減低聲浪。	/	表示盡量
2	24/4/2016	約06:49	接獲閣下來電投訴因受到2樓單位發出之噪音，導致不能入睡。	本處職員到梯間了解，但未有發現，職員留守樓梯間約10分鐘後離去。	/	/
3	11/5/2016	約23:16	接獲閣下來電，反映2樓有敲打聲傳出，要求本處協助處理。	本處職員到梯間了解，未有聽到聲音，職員留守約10分鐘後才離去。	/	/
4	11/5/2016	約23:30	再次接獲閣下來電，職員回覆沒有聽到聲音，但閣下表示要到其家中才能聽到。	職員聯絡2樓，建議住戶將噪音降低。	/	該住戶表示小孩在哭鬧難以控制，並表示若投訴者不接受，可報警處理。
5	14/5/2016	約23:52	本處接獲閣下來電投訴2樓單位小孩跑步聲太大。	職員聯絡2樓。	/	該住戶表示小孩行路無法控制，並表示若投訴者可報警處理。
6	15/5/2016	約00:05	接獲閣下來電投訴2樓單位小孩跑步聲。	職員聯絡2樓。	/	該住戶表示投訴者不滿意可報警處理。
7	4/8/2016	約23:11	接獲閣下來電指2樓有成人及小孩走來走去傳出噪音，要求本處職員到場協助。	職員到137號屋梯間未有聽到有聲音傳出，並繼續留守監察。約12分鐘後，本處再次接獲 閣下反映，並同意本處職員到其單位內了解。及後，職員報稱間中有步行聲。職員聯絡2樓反映有關事件。	/	2樓住戶反投訴為何住戶和小孩不可在家中玩樂，並表示若投訴者不滿意可報警處理。
8	5/8/2016	約00:24	管理處接獲閣下來電指2樓仍有噪音，要求本處協助報警處理。	警車AM6193於00:47到場協助處理，但因閣下及2樓住戶都不妥協，警方於01:05離開。	TMRN 16023351	/
9	28/9/2016	約00:15	管理處接獲閣下來電指2樓發出噪音，要求本處職員到場協助。	職員到閣下單位，聽到有腳步聲傳出，職員按2樓門鈴，但無人應門，職員得到 閣下同意後，本處協助報警處理。警車AM8259於01:00到場處理，警員到 閣下單位內聽到由2樓傳出的步行聲音後，再到2樓向該住戶建議減低腳步聲之方法後，警方於01:30離開。	TMRN 16029275	/
10	24/12/2016	約23:50	接獲閣下來電投訴，指2樓單位前幾天已開始發出很大嘈音，要求本處協助報警處理。同時本處接獲2樓住戶分別來電投訴，指閣下大聲呼叫，已自行報警處理。其續稱已在客廳位置放了軟墊，只有行路聲音。	本處協助報警，警車AM6193於00:15到雙方單位了解及跟進，約半小時後，警車離開。	未有記錄	2樓住戶到達管理處諮詢，為何行路聲都不能接受，要求管理處跟進。
11	15/2/2017	約23:45	接獲閣下來電指2樓有噪音。	職員到梯間了解，聽到小孩玩樂聲音。	/	/
12	5/3/2017	約03:05	接獲閣下來電指2樓有走路及哭啼聲。	職員到閣下單位了解，聽到有小孩哭聲。約03:12職員致電2樓，但無人接聽。約03:23再致電2樓單位。	/	2樓住戶表示因家中小孩受傷已自行報救護車。約03:23，A227救護車到場，將受傷小孩送院治理，於03:37離開。
13	10/3/2017	約00:58	接獲閣下來電指有噪音，本處職員到場了解，並要求本處協助報警處理。	本處協助報警，警車AM6193及AM9967於01:15到場協助處理，及後，AM8259及AM8698於01:30再到場增援，經警方調解後，警方於02:10離開。	TMRN 17007531	/
14	12/3/2017	約00:22	接獲閣下來電2樓有步行聲及小孩哭叫聲音。	職員到閣下單位了解，聽到有小孩哭聲。	/	/
15	12/3/2017	約16:38	接獲閣下來電指2樓有噪音。而 閣下表示於日間活動是接受的，但經常在晚間嘈，完全不合作也不改善，便無法接受。並要求本處職絡2樓業主，告知有關情況。	本處職員到閣下單位外，聽了5分鐘沒有聲音，及後到 閣下單位內，聽到小朋友跑步。職員聯絡2樓業主，但業主未有接聽電話。	/	/
16	2/4/2017	約10:00	接獲閣下來電指2樓有噪音。而閣下表示本處已跟進約兩星期，但情況未有改善，仍經常在凌晨時段，出現沉重腳步聲及小孩跑步聲，要求管理處通知業主有關情況，並要求本處介紹律師，藉此可認真解決問題，並要求林經理於5/4/2017提供可行之方案參考。此外，要求本處發信給2樓業主作出投訴。	職員到閣下單位內，聽到小孩活動聲音。
17	17/5/2017	約17:15	接獲閣下來電指2樓有噪音。	與本處林經理與閣下溝通，有關協助方法。
18	27/11/2017	00:25-01:02	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱有開門、關門及少許家居聲音。
19	5/12/2017	23:05-00:01	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱有腳步聲及一些不明家居聲音。
20	7/12/2017	00:25-00:55	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱有跑步聲。
21	7/12/2017	01:55-02:53	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱未有聽到聲音。
22	9/12/2017	21:40-22:30	接獲閣下來電指有噪音。	職員到梯間時，2樓住戶亦到梯間與閣下爭論。及後，本處協助報警處理。警車AM8259於22:00到場協助處理，經警方調解後，警方於22:30離開。	未有記錄
23	11/12/2017	01:15-02:35	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱有關門、腳步及開水喉聲音。
24	12/2/2018	19:45	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱有敲打聲及推櫃聲音。
25	15/2/2018	12:15-13:40	接獲閣下來電指2樓有噪音。	本處林經理及陳主任到場了解，於梯間與閣下及2樓發生爭論，經調解後，林經理建議2樓住戶於家中穿著拖鞋，並盡量安排小朋友早睡，2樓住戶表示會盡量配合。
26	24/2/2018	16:56-17:09	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱有小孩跑跳聲。
27	28/2/2018	22:44	接獲閣下來電指2樓有噪音。	職員到閣下單位了解，職員稱有小孩哭叫聲。
28	30/12/2018	00:20	接獲閣下來電指2樓有腳步聲。並指示職員通知2樓不要發出噪音，好好管教小孩。	職員到閣下單位了解，職員稱有小孩行路及跑步聲。及後聯絡2樓，但無人接聽。
29	1/1/2019	18:30	接獲閣下來電指2樓有小孩腳步聲。	職員到閣下單位了解，職員稱有小孩腳步聲。
30	1/1/2019	22:55	接獲閣下來電指2樓有小孩跑步聲。	職員到閣下單位了解，職員稱有小孩跑步聲。
31	2/1/2019	20:50	接獲閣下來電指2樓有小孩跑步聲。	職員到閣下單位了解，職員稱有小孩跑步聲。

23.  It will be noted from the Table that Incidents 8, 9, 10, 13 and 22 were reported to the police who did attend to investigate.

24.  In oral evidence, the plaintiff raised for the first time another complaint and described it vividly. She said that invariably every night at about 2:00 am to 3:00 am, she heard loud banging noise transmitted from the wall against which the head of her bed leaned, and that it was so loud that she could hear it even though she had put on earplugs (戴住耳塞都聽到), that she would be completely startled (成個人彈起), and over which she had a deep impression (好深刻印象)(“the New Complaint”).

25.  For the following reasons, I have no hesitation to find that the New Complaint was an afterthought that she made up when giving evidence and I do not believe her about it at all:-

(a) As it can be seen from the Table, the plaintiff had not been timid in making complaints to ISS, and many times even reporting to the police, yet, she had never made any complaint whatsoever about the New Complaint to ISS or the police.

(b) In the Statement of Claim, the plaintiff listed out all the noises she complained about and described them in some detail. She has amended her Statement of Claim 3 times, which means she has had 3 occasions on which to consider the accuracy of what was pleaded there. And yet, serious and vivid as she said in oral evidence the New Complaint was, it was not at all mentioned in any version of the Statement of Claim.

(c) It was also not at all mentioned in her witness statement.

(d) When asked in oral evidence why that was so, all the plaintiff said to explain was “解釋唔到，唔會特別講，… 包埋落去其他類別的噪音度”. I find her such explanation completely incredible because, evidently, the New Complaint as described, if true, was a very distinct one clearly different from the others, and should have been the most disturbing and memorable, as it completely woke up and startled her, and indeed she herself said she had “a deep impression”, and according to her, this occurred every night. I find that if it were true as she said, she must have remembered and complained about it. Thus, I have no hesitation to, and must, reject such explanation as completely disingenuous and untrue.

(e) Despite in oral evidence the plaintiff herself volunteered the information that her live-in teenage daughter (born in 2005) could give evidence (我個女可以做證) about this New Complaint as they had jokingly said that this noise was so special that “it could have been patented”, the plaintiff did not call her daughter to give evidence to substantiate the New Complaint or her other complaints.

Are the noise complaints substantiated, and was the annoyance and disturbance thereby caused of such a degree as to amount to actionable nuisance?

26.  The defence case consists of (a) putting the plaintiff to prove of her allegations and case, and putting forth the fact that (b) YSY has understood from YZN, who in turn has understood from the Mui family, that the alleged noises were noises caused by normal household activities, and (c) the Mui family has, upon complaints, padded the floor of D’s Flat to minimize the level of noise.

27.  I now turn to assess the plaintiff’s case.

28.  As explained above, it is a question of degree as to whether the interference, disturbance, or annoyance caused by the noise amounts to an actionable nuisance, and such is to be assessed in the context of the circumstances including the standard of comfort or convenience of living of the average man taking into account the character of the neighbourhood, and also bearing particularly in mind that the law requires everyone in an organized society to put up with a certain amount of discomfort and annoyance caused by the activities of his neighbours, especially when those activities are normal day-to-day ones.

29.  In this regard, the court has always recognized that certain individuals are subjectively more sensitive to certain noise, or to noise generally, and thus are more prone to be annoyed or disturbed. The clear law is that the court shall not take into account the subjective sense of sound of the complainant. It therefore behoves the complainant to proffer evidence to establish his complaint objectively. One of the more important objective matters is the volume of the noise. Measurements taken by an instrument such as a decibel meter could be such evidence. Expert evidence is often adduced. Evidence from witnesses other than the complainant who also heard the noise could be probative.

30.  Here, despite the very long period of 3 years in which allegedly excessive noise was emanated, in which the plaintiff has had ample opportunities to do so, the plaintiff has not made any attempt whatsoever to objectively measure the volume of the noises by any instrument. There is thus no evidence of any objective measurements proffered by the plaintiff.

31.  The plaintiff has not adduced any expert evidence.

32.  Moreover and as mentioned, the plaintiff herself volunteered in oral evidence that her teenage daughter could have been a witness. However, the plaintiff did not call her daughter as a witness. It is also her evidence that her mother at the material time stayed one or two nights a month in P’s Flat and therefore should have also heard the noises and could have been a testifying witness. Again, she was not called.

33.  Thus, apart from the plaintiff’s subjective complaints and the Record, there is no other objective or independent evidence substantiating the noise complaints, particularly on the level of noise.

34.  In her opening and along the trial, the plaintiff repeatedly emphasized that the Mui family and YSY were “not cooperative” (唔合作). This court was under the clear impression that by this she meant, and strongly expected, that the Mui family and YSY should have duly complied with her wishes whenever she complained.

35.  In oral evidence, the plaintiff expanded on the general description of the noises. Regarding specific incidents, and as have mentioned, she generally relied on what was noted in the Record. She specifically high-lighted 3 incidents.

36.  Firstly, she raised the New Complaint. For reasons expressed in paragraph 25 above, I have rejected the New Complaint.

37.  Secondly, she highlighted the incident that occurred at about 3:00am on 5 March 2017 (Incident 12). She said that on that occasion she was almost scared to death by the noise she heard (個次我差啲嚇死), which consisted of a scream by Mui’s toddler, sound of footsteps and the toddler crying. It is not disputed that in fact on that occasion quite a serious accident happened to the toddler, such that (as noted in the Record) an ambulance was summoned to take the toddler to the hospital for treatment. I find that on that occasion the noise was caused by an accident, and it was a one-off incident; and as such, it cannot be taken as the subject matter of a nuisance by noise.

38.  Thirdly, the plaintiff referred to Incidents 29 and 30, which were 2 complaints of noise of footsteps of the toddler at 6:30pm and 10:55pm on 1 January 2019, which was a New Year Day. She said it was a public holiday and her day off, and the sound of the toddler walking/running upstairs had disturbed her rest. She added that it was the disturbance in these 2 incidents that made her resolved to commence this action. Evidently, the New Year Day for many people in Hong Kong is a day of celebration, gathering and activities as much as it is a day of rest for some. From the manner she viewed these 2 incidents, it seems to me quite clear that the plaintiff has a high and sure expectation that her neighbours should conform to her own rhythm of life or lifestyle, so much so that she was not prepared to put up with a reasonable amount of noise caused by the normal activities of her neighbours (and in these 2 instances, possibly enjoyable family time at home of a young family involving the toddler walking/running around). It also suggests to me that the plaintiff may have a particularly high sensitivity to noise.

39.  I turn next to consider the plaintiff’s evidence.

40.  The plaintiff is a highly educated and sophisticated witness, having obtained a Master’s degree and having worked as an administrative officer in the Hospital Authority and then in an insurance company. I have observed and listened to her evidence carefully. I am not favourably impressed by her as a witness. Considering the instances I allude to below, I come to the firm view that, in order to further her own cause, the plaintiff has been exaggerating, not entirely truthful and even making things up along the way. I am unable to regard her as an honest or reliable witness. The instances were:-

(a) She made up and lied about the New Complaint, and gave disingenuous excuses as to why the New Complaint was hitherto completely unmentioned anywhere.

(b) She confirmed as true what she said in the Statement of Claim that prior to the Mui family moved in, there was no excessive noise emanated from D’s Flat. Yet, YSY obtained and produced a letter from ISS setting out the records of the plaintiff’s complaints of noise in November and December 2012[7] (“the Earlier Record”). As the accuracy and reliability of the Earlier Record was not challenged by the plaintiff, I accept what was recorded there as evidence of the facts stated therein (in the same vein as I so accept the Record, as will be seen later). The Earlier Record recorded that the plaintiff complained of noise emanated from D’s Flat caused by a dog scratching the floor. It was also recorded that the occupier of D’s Flat complained that the plaintiff on other occasions knocked on the floor slab between the 2 flats and said “see who is noisy” (睇下邊個嘈), and that the police was indeed summoned twice on 28 December 2012 to deal with these complaints. In cross-examination, the plaintiff first said that she did not remember these complaints and incidents. Later on however, she volunteered the information that actually the police told her that the dog was a very small dog. It was clear to me that she was not truthful when she said that there were previously no complaints of noise and when she first said that she did not remember.

(c) She was not truthful when she denied that the camera she installed on the roof was installed to pry into the living room of D’s Flat. She only admitted unwillingly when later being confronted by the said picture.

(d) She has repeatedly and clearly exaggerated the impact on her and her family of the alleged noise emanated from D’s Flat. She complained that “長期噪音滋擾，導致我和家人失眠，精神崩潰，心臟病發，嚴重影響我上班時的工作效率”[8]. Yet when asked in cross-examination, she could not mention even one instance when she or her family attended a medical doctor to treat any of the ailments she so mentioned. She also complained that “我的女兒須要搬到其他居所暫住以溫習和學習”[9]. However, nothing was said in her witness statement or in evidence as to when and where her daughter had to so move, and the daughter was not called as a witness. The plaintiff also said several times that the noise had so scared her that “差啲嚇死” and “差啲死咁滯”, when clearly there was no medical evidence or any other evidence indicating that the plaintiff nearly died therefrom.

41.  Moreover, I also find on balance of probabilities that the plaintiff has a high subjective sensitivity to sound, in that:-

(a) She complained on 3 occasions - 14 May 2016 (Incident 5), 15 May 2016 (Incident 6) and 4 August 2016 (Incident 7) that the sound of Mui’s baby walking as noisy and disturbing. On those dates, Mui’s child was respectively merely 11 months’ and 14 months’ old. At that stage, the baby was only learning or beginning to walk and he would not have weighed much. It is highly improbable that his walking would generate loud sound of footsteps. Yet, the plaintiff found such noise excessive and disturbing.

(b) She also complained many times that the sound of the toddler walking during daytime was excessive and disturbing.

(c) She complained that the noise of a small dog scratching the floor as excessive and disturbing.

42.  For the reasons expressed in the preceding two paragraphs, I do not accept the plaintiff’s evidence regarding the alleged level of noise, the alleged frequency of the noise (allegedly every day, every night, continuously, and such) and particularly I do not accept her subjective perception of disturbance as reliable for the purpose of assessing the degree of interference and disturbance for the purpose of assessing whether such amounted to actionable nuisance.

43.  I turn next to consider the Record. YSY did not seriously challenge the accuracy or reliability of what were recorded therein. That being the case, I accept the Record as evidence of the facts stated therein.

44.  I will begin by analysing and tallying various incidents there recorded.

45.  In the Record, as far as the type of noise the plaintiff complained, they consisted of:-

(a) 19 incidents of complaints of unspecified general noise only (噪音, 嘈音 or 聲浪) (Incidents 1, 2, 8, 9, 10, 11, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27);

(b) 11 incidents of complaints of sound of walking or running footsteps (Incidents 5, 6, 7, 10, 12, 14, 16, 28, 29, 30 and 31); and

(c) 1 incident of knocking sound (Incidents 3).

46.  In the Record, it was noted that of the 31 incidents of complaints the staff of ISS attended to investigate in all but 7 occasions (Incidents 4, 5, 6, 8, 10, 13 and 17). In the Record, the staff reported the results of his investigation, as follows:-

(a) There was no noise heard (Incidents 2, 3 and 21);

(b) They heard sound of footsteps (Incidents 7, 9, 19, 20, 23, and 29);

(c) They heard sound of a baby/toddler crying (Incidents 1, 12, 14 and 27);

(d) They heard sound of a toddler’s activity (Incidents 11 and 16);

(e) They heard sound of a toddler’s walking or running (Incidents 15, 26, 28, 29, 30 and 31);

(f) They heard sound of doors opening and closing (incidents 18 and 23);

(g) They heard sound of the opening of a water tap (Incident 23); and

(h) Only in one instant they heard the noise of knocking and pushing of furniture (Incident 24), and it occurred at 7:45 pm.

47.  Moreover, in the 5 incidents that the police was summoned (Incidents 8, 9, 10, 13 and 22), it was recorded in the Record that only in Incident 9 that the police detected some sound of walking steps emanated from D’s Flat. In the other 4 incidents, it was not recorded that the police detected any noise emanating from D’s Flat. It is common ground that the police did not initiate any prosecution against Mui regarding any of the 5 instances of complaint by the plaintiff.

48.  Thus, according to the Record, there were 19 incidents that the staff heard some noise (namely, Incidents, 1, 7, 9, 11, 12, 14, 15, 16, 18, 19, 20, 23, 24, 26, 27, 28, 29, 30 and 31). As I earlier find, Incident 12 should be excluded.

49.  However and very importantly, in all the 18 incidents in which it was recorded the staff has heard some noise (whatever the noise was, and not counting Incident 12, for the reason above expressed), the staff never reported that the noise was loud, excessive or disturbing. This court having rejected the plaintiff’s subjective complaints and perception, there is no evidence before me to show the level of the noise emanated from D’s Flat in any of the 18 Incidents.

50.  Of the 18 incidents, 8 of them concerned complaints of noise being emanated from D’s Flat before 11pm – namely, Incident 15 (4:38 pm), Incident 16 (10 am), Incident 24 (7:45 pm), Incident 26 (4:56 pm to 5:09 pm), Incident 27 (10:44 pm), Incident 29 (6:30 pm), Incident 30 (10:55 pm) and Incident 31 (8:50 pm).

51.  I adopt 11pm instead of mid-night as the dividing line even though in Capital Prosperous Limited v Sheen Cho Kwong [1999] 1 HKLRD 633 Deputy High Court Judge Muttrie observed[10] that “it is common knowledge that many Hong Kong people stay up late at night. I do not see that anything up to midnight can be regarded as out of the ordinary” because I accept the plaintiff’s submission that Villa Pinada is a relatively quiet estate and neighbourhood.

52.  Going back to these 8 incidents, as the type of noise complained of in these incidents were all noise caused by normal household activities (sound of adult or baby footsteps and baby playing or crying) of the Mui family and there is no evidence to show it was otherwise excessive, I have no hesitation to hold that such noise caused thereby could not be regarded as subject matters of a complaint of nuisance; or expressed in another way, the interference or disturbance, if any, caused by the noise in these 8 incidents was not of such degree as would amount to actionable nuisance.

53.  Of the remaining 10 incidents when noise was heard by the staff, 5 of them concerned noise caused by the baby/toddler – namely Incident 1 (8 months’ old baby crying, at 12:55 am), Incident 7 (footsteps of toddler, at 11:11 pm), Incident 11 (sound of toddler playing, at 11:45 pm) Incident 14 (footsteps of toddler, at 12:22 am) and Incident 28 (footsteps of toddler, at 12:20 am). It is notorious that however good one’s parenting is in nursing and putting one’s young toddler to bed, there will be occasional nights the young toddler would somehow not fall asleep at the scheduled time and want to be up and going. To put matter in perspective, there were only 5 such incidents within those 3 years; and they concerned the toddler being up a bit late (latest at 12:22 am), rather than making noise at small hours. In my judgment, 5 occurrences in 3 years were well within the norm that a neighbour of a young family having a baby/toddler would expect, and that such relatively minor amount of discomfort and annoyance caused by the sound of a baby/toddler being up a bit late is within the bounds that the law requires everyone in an organized society to put up with.

54.  The remaining 5 incidents (Incidents 9, 18, 19, 20 and 23) concerned such noises as those made by opening and closing of doors, adult footsteps, turning on water tape, and they all occurred up to about 1:00 am save in Incident 23 (up to 2:35 am). Again, there is no evidence that the noises were otherwise excessive (such as loud banging caused by violent opening and closing of doors, exercising in small hours thereby emanating sound of heavy footsteps for a prolonged period, and such). The plaintiff suggested that the Mui family returned home late on those occasions. That seems to me not unlikely. Putting the matter in perspective again, it is a complaint of noise caused by 5 late nights in a span of 3 years. It seems to this court not out of ordinary that one’s neighbour in Hong Kong would have at least several late nights a year, whether it be celebrating special events, getting with old friends, having a party or maybe unfortunately delayed by traffic jam. Such amount of discomfort and annoyance so caused to the plaintiff, in my judgment, were again within the bounds that the law requires everyone in an organized society in the Hong Kong setting to put up with.

55.  Considering in the round all the matters alluded to above, I conclude that the plaintiff has not proved that the Mui family has committed actionable nuisance caused by noise.

56.  While having evaluated by analysing the incidents by categorizing as I did above, I have not lost sight that I should also consider the cumulative effect of the incidents mentioned in paragraphs 53 and 54 above. Having considered the cumulative effect, I remain of the judgment that actionable nuisance is not proved.

57.  I therefore would dismiss the plaintiff’s claim against Mui for nuisance and breach of the DMC. It follows that her claim as against YSY for permitting the nuisance, whether under common law or the DMC, would also fail and should be dismissed.

Evidence of YSY and YZN

58.  For completeness, I will briefly state the following.

59.  I am favourably impressed by YSY and YZN as witnesses. YZN, it will be recalled, is YSY’s elder sister who YSY asked to, and YZN did, attend to matters in relation to D’s Flat on YSY’s behalf at the material time. I generally accept their evidence, including the evidence that YZN visited the Mui family at D’s Flat on 15 March 2017 and 29 July 2017, and on both occasions she understood from Mui that the noise the plaintiff complained of was only noise caused by normal household activities and Mui assured YZN that they did not play mahjong or carried out any activity that would cause excessive noise to be emanated. Mui had also covered the floor of a great part of D’s Flat with carpets to minimize noise.

60.  The evidence of YSY and YZN in any case was largely uncontroversial save as to when they knew of the plaintiff’s complaints.

61.  In that regard, it is the plaintiff’s evidence, that I specifically accept, that she herself has never contacted YSY or YZN regarding her complaints and she has left ISS to liaise with the owner of D’s Flat. As noted in the Record, ISS had been contacting the Mui family and not YSY about the plaintiff’s complaints. ISS only first issued a written notice about the complaints on 7 March 2017 by inserting it in the letter box of D’s Flat. I accept YSY and YZN’s evidence that they had no assess to the letter box (as D’s Flat was rented to Mui) and they have never received the notice from Mui, and I so find. According to the evidence of YSY[11] and YZN[12] which I accept and find, that YSY was first informed about the plaintiff’s general noise complaint through telephone calls made by a staff of ISS to her since about mid March 2017.

Amount of damages, if claim established ?

62.  Mr Ng has cited Tam Wai Cheung Roger & Another v Goodwell Property Management Limited (DCCJ 2262/2013, unrep, 11 January 2016, Deputy District Judge L C Cheng) in which the learned Deputy Judge (at paragraphs 84 to 86) referred to the amounts of damages awarded in a number of cases and then awarded in that case HK$30,000 as damages. Mr Ng submitted that, even if actionable nuisance were established because of the noises emanated from D’s Flat at some of those late nights, the amount of damages to be awarded as against YSY should be HK$30,000 as well.

63.  While I generally agree that the level of damages in this case should be low (even if liability were established), I would and could not express any firm view on the amount of damages, which would very much depend on the number of instances, extent and severity actually established.

Mui’s counterclaim

64.  As Mui did not appear at trial to pursue his counterclaim based on an infringement of his privacy, I would formally dismiss it. In view of my finding that the plaintiff installed the camera to pry into the living room of D’s Flat, I think the appropriate costs order of the counterclaim is no order as to costs.

Conclusion and disposal

65.  In the premises, I dismiss the plaintiff’s claims as against all the defendants, and also dismiss the 2^nd defendant’s counterclaim.

66.  I make this costs order nisi:-

(a) The plaintiff do pay the 1^st defendant her costs of this action, including all costs reserved (if any) with certificate for counsel, to be taxed if not agreed; and

(b) The plaintiff do pay the 2^nd defendant his costs of this action, including all costs reserved (if any), except that there be no order as to the costs of the 2^nd defendant’s counterclaim.

67.  This costs order nisi will become absolute within 14 days unless any party applies by letter to vary within that time.

68.  The plaintiff may liaise with my clerk to have this judgment interpreted to her, if there is such a need.

69.  Lastly, I thank Mr Ng for his assistance.