LEE KWAI YING v. PANG WING FAI AND OTHERS

DCCJ 1680/2022

[2022] HKDC 1246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1680 OF 2022

____________________

____________________

-----------------

DECISION

-----------------

1.  On 30 September 2022, I dismissed P’s application (“the Injunction Application”) for an interlocutory injunction against Ds (“the Injunction Decision”)[1]. On 6 October 2022, P took out a summons for leave to appeal against the Injunction Decision (“the October Summons”).  The only document annexed to the October Summons is a draft notice of appeal.  P has not filed any affidavit or affirmation in support of the October Summons.

2.  I have directed that the October Summons be determined on paper without an oral hearing.  The parties’ respective written submissions have been duly considered.  This decision should be read together with the Injunction Decision.  For ease of reference, the abbreviations used in the Injunction Decision are adopted herein.

A.   THE PRINCIPLES

3.  The principles concerning leave to appeal are trite.  Leave to appeal from this court to the Court of Appeal can only be granted if 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.^[2] Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable.^[3]

4.  The Injunction Decision is a discretionary decision made by me.  In order to overturn that discretionary decision, P has to overcome a very high hurdle.  The principles have been summarized by Kwan JA (as she then was) in Excel Courage Holdings Ltd v Wong Siu Lai[4], in which the learned judge said:

“55. An interlocutory injunction is a discretionary relief and the discretion whether to grant it is vested in the judge of the court below who heard the application. The appeal court must defer to the judge’s exercise of his discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently. The function of the appeal court is initially one of review. It will not disturb the judge’s exercise of discretion unless the judge had misdirected himself with regard to the principles or the evidence in accordance with which his discretion had to be exercised; or he had wrongly taken into account irrelevant matters or failed to take into account relevant matters; or his exercise of discretion was plainly wrong. It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to F; The Abidin Daver [1984] 1 AC 398 at 420A to C).”

5.  See also Wong Kar Gee Mimi v Severn Villa Ltd[5], in which Kwan JA (as she then was) said:

“31. … generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

6.  In respect of admission of new evidence in an appeal, the Ladd and Marshall^[6] conditions apply^[7]. Further evidence is admissible on an appeal only where such evidence:-

(1)  could not have been obtained at the hearing with reasonable diligence;

(2)  would or might, if believed, have a very important effect on the mind of the court; and

(3)  is of a sort which inherently is not improbable.

B.   NEW EVIDENCE

7.  In the draft notice of appeal, it is stated:

“To further support the appeal, P humbly asks this court to grant leave to her for:

(k) Ground 11: filing BD’s new report which states there was the vibration from 6J as witnessed by their external consultant in the late night of September 15, 2022;

(l) Ground 12: filing documented evidence of BD’s external consultant who opined that the vibration as witnessed for over an hour in the late night of September 15, 2022 was nuisance and it interfered with P’s sleep;

(m) Ground 13: filing evidence to prove further Ds’ false statements regarding their sleeping hours and their made-up alibi;

(n) Ground 14: filing evidence to prove further the building management’s finding on April 27, 2022 was not a thorough and believable one;

(o) Ground 15: filing evidence to prove the heavy work in Ds’ premise as found by the neighbour 4J.”

8.  P is intending to introduce the new evidence as set out under her Grounds 11 to 15 in the appeal.  However, P has not filed any affidavit or affirmation to explain why such evidence could not have been obtained at the hearing on 30 September 2022 with reasonable diligence.  P has also not produced the new evidence, and the contents of the new evidence are unseen by this court.

9.  P submits that:

(1)  Ground 11 – In the BD’s new report, it is stated that in an inspection done in the late night on 15 September 2022, vibration from 6J was observed.  The new report was not readily available for pick up until 5 October 2022.  P seeks leave to file this new report.

(2)  Ground 12 – BD’s external consultant had stayed in 5J from 10:41 pm to 11:45 pm on 15 September 2022.  The consultant confirmed that the vibration was a nuisance, which had the effect of affecting P’s sleep.  P is seeking leave to file the “documented evidence” made by the consultant. 

(3)  Ground 13 – P seeks leave to file evidence to refute the allegations made by Ds in their affirmations.

(4)  Ground 14 – P seeks leave to file evidence to prove that the inspection done by the Management Office is not thorough and not believable.

(5)  Ground 15 – Mr Kwok is living in Flat 4J of the Building.  On 29 August 2022, P and Mr Kwok were in the same minibus and had a conversation.  In that conversation, Mr Kwok said that he and his wife occasionally heard loud “bom” sound from the above.  P has recorded that conversation, and P now seeks leave to file the evidence of that conversation.

10.  As to the matters stated under Grounds 13 to 15, these matters have been in existence before the hearing on 30 September 2022. P cannot say that she would not be able to obtain such evidence with reasonable diligence before the hearing on 30 September 2022.  As to the matters mentioned in Grounds 11 and 12, according to P, the BD’s inspection was done on 15 September 2022.  There is no evidence showing that P had made reasonable efforts to try to obtain the report of this inspection and the documents prepared by the external consultant before the hearing on 30 September 2022, but could only obtain the report and the documents after the hearing.  In my view, condition (1) in Ladd v Marshall has not been satisfied.

11.  Further, as said in the above, P has also not produced the new evidence, and the exact contents of the new evidence are therefore unknown.  In these circumstances, obviously, conditions (2) and (3) in Ladd v Marshall have also not been satisfied.

12.  In my view, P is not entitled to adduce the new evidence in the appeal.

C.   LEAVE APPLICATION

13.  In the draft notice of appeal, apart from Grounds 11 to 15 mentioned in the above, P have put forward 10 grounds in support of her appeal.  By these 10 grounds, P is trying to argue that her appeal has a reasonable prospect of success and hence leave to appeal should be granted to her. P is not seeking leave under the “some other reason in the interests of justice” limb.

14.  I have dismissed the Injunction Application, for I am of the view that:

(1)  There is no serious question to be tried.[8]

(2)  Damages would be an adequate remedy to P.[9]

(3)  The terms of the injunction sought by P are vague and uncertain.[10]

15.  Unless P can demonstrate that she has a reasonable prospect of success in overturning each and every point as set out in [14] above in the appeal, leave to appeal must be refused.

C1.  Damages being adequate remedy

16.  Notwithstanding the numerous grounds put forward by P, P has failed to address the reason given by me in [45] to [47] of the Injunction Decision, i.e. the Injunction Application must be refused, for damages would be an adequate remedy to P according to P’s pleaded case.  That reason alone would be sufficient for dismissing the Injunction Application. While that reason stands, even if P could make any inroad into other parts of the Injunction Decision, P would not have a reasonable prospect of success in the appeal.

C2.  Terms of the injunction vague and uncertain

17.  In Ground 10, P has tried to argue that the reason given by me in [48] of the Injunction Decision is flawed.  In her written submissions dated 6 October 2022, P submits:

“4.19 P uses “unusual” instead of “unreasonable” is because unlike noise which indispensably exists in any household units, heavy work by hammering, knocking and dragging of heavy objects do not indispensably and do not usually exist. It all depends entirely on the circumstances. For example, it is usual if a household unit do the hammering, knocking and dragging of heavy objects to assemble a shoe cabinet for 3 hours. If it takes 7 hours from day time till midnight to assemble a shoe cabinet for a unit of 420 sq.ft., it could hardly be considered as “usual”. If it takes a few days or even more than half a year to assemble a show cabinet, it would definitely be considered as “unusual” according to a reasonable person’s perception and judgment. ……” (Emphasis added)

18.  With respect, as submitted by Ms Gigi Ho for Ds, the expression “[i]t all depends entirely on the circumstances” used in P’s submission has demonstrated that the scope of prohibition in the injunction order proposed by P is vague and uncertain.  An injunction is a serious matter, and any breach of the injunction would lead to drastic consequences.  Ds are entitled to know what exactly is prohibited by the injunction, and what is not within the scope of prohibition.  By saying that “it all depends entirely on the circumstances” would not give any comfort to Ds.

C3. No serious question to be tried

19.  Under Grounds 1 to 9, P has tried to argue that there is a serious question to be tried.  As far as I can understand, P’s arguments are as follows:

(1)  There are two kinds of nuisances alleged in this case, the first being the ceiling damage and the second being the serious interference with P’s enjoyment of land.  P claims that soundless vibration only refers to the serious interference with P’s enjoyment of land but not the ceiling damage.  P also submits that ceiling crack formations and quick deteriorations can only be caused by the unusual force exerted from the above floor.

(2)  P has provided proof that the police witnessed a loud thump from above 5J on 20 May 2022.

(3)  Regarding the investigations done by the Management Office, this court erred in not taking into account the “fact-twisting records” of the Management Office.

(4)  Regarding the BD’s reports, I have made “untrue references” and drawn “invalid conclusion” from those reports.  P says that this court erred in stating the following in the Injunction Decision:

(a)  At [28(2)]:

“In the two reports, the BD said that no abnormal or unusual noise or vibration emanating from 6J could be observed by the investigating officers, despite their visits outside 6J on those dates of inspection and inside 5J on 28 march 2022 and 21 April 2022. ……”

(b)  At [28(3)]:

“On 16 May 2022, the BD issued a letter to P and explained that the BD would not proceed with further investigation or action, as there was no structural damage caused by the cracks and noise was not within the jurisdiction of the BD.”

(c)  At [30]:

“The Management Office, the Police and the BD are independent third parties. They all have conducted their own investigations as a result of P’s complaints. The findings made by them do not lend any support to P’s case at all.”

P also says that I have not mentioned that Ds have refused to allow the BD’s officers to enter 6J to conduct investigations.

(5)  This court erred in not finding Mr Ma having the necessary expertise.  This court also erred in ignoring the test done by Mr Ma with a hammering rod and the findings of moisture measurements in Ma’s Report. Accordingly, I have erred in not attaching weight to Mr Ma’s evidence.

(6)  P is not relying upon Dr Li’s report to prove the nuisance in P’s case.  P is only relying upon the report to prove that she does not have hallucination.

(7)  I erred in not taking the evidence from P’s mother and P’s sisters, and the transcripts of the conversations between P and some people into account.

(8)  This court erred in understanding P’s case.  P submits that her case is a case of nuisance caused by noise maliciously created by Ds, and this court has failed to apply the NCO.

(9)  This court erred in not taking into consideration Ds’ false statements and their failure to deal with P’s allegations for weighing the balance of probabilities.

20.  With respect, I am unable to agree that P has demonstrated a reasonable prospect of success in the appeal by these arguments.

(1)  It is plain that damage to 5J’s ceiling is a major part of P’s case.  P is alleging that the cracks on 5J’s ceiling were caused by the soundless vibration emitted from 6J.  Damage to 5J’s ceiling would also be interference with P’s enjoyment of 5J.  As to the proposition that ceiling crack formations and quick deteriorations can only be caused by the unusual force exerted from the above floor, there is no reliable evidence in support of this proposition.

(2)  Evidence from the police has been summarized in [27] of the Injunction Decision.  There is no inaccuracy in the summary.

(3)  The investigations done by the Management Office have been summarized in [26] of the Injunction Decision.  P is of the view that the Management Office has twisted the facts.  However, the findings made by the Management Office are consistent with the conclusions reached by the police and by the BD.  There is no reasonable chance of success in criticizing that this court erred in accepting the Management Office’s findings.

(4)  Regarding the BD’s reports:

(a)  It is unfortunate that I have not expressed myself clear in [28(2)] of the Injunction Decision.  In the two reports complied by the BD, there is no positive statement stating that no abnormal or unusual noise or vibration emanating from 6J could be observed by the investigating officers.  What I should say is that in these reports, the BD mentioned no abnormal or unusual noise or vibration emanating from 6J. However, I am not persuaded that the unclear or inaccurate expression in [28(2)] would change the outcome of the Injunction Application.  After all, it is clear that there is no evidence from BD providing any support to P’s case.

(b)  Apart from the above, I am not persuaded that I have inaccurately summarized the BD’s evidence in the Injunction Decision.

(c)  I have indeed mentioned that the BD’s officers did not have an opportunity to enter 6J in [29] of the Injunction Decision, and I have taken this fact into account in my consideration.

(5)  I have analysed Mr Ma’s evidence in [31] of the Injunction Decision.  In my analysis, I have proceeded on the assumption that Mr Ma is indeed having the necessary expertise.  As submitted by Ms Ho, the tools shown in Appendix I to Ma’s Report, namely the “laser distance meter – brand ToolSmart TS50N Hammering Rod” and the “moisture meter with thermos-hygrometer”, are not used to test the alleged noise and/or vibration nuisance. Rather, as seen from §3.4 and §3.6 of Ma’s Report, the hammering rod was used to test the debonding areas on the ceiling surfaces of 5J, and the moisture meter was used to test the moisture level of the ceiling cracks. These tests are irrelevant to show and prove that the cracks on 5J’s ceiling were caused by the vibration emanated from 6J.  I am not persuaded that there is any error in my analysis.

(6)  Regarding Dr Li’s report, P is merely saying that she is using that report to prove that she does not have hallucination. Suffice for me to say that there is no finding in the Injunction Decision concerning P’s mental condition.

(7)  Regarding the evidence from P’s mother and from P’s sisters, as well as the transcripts of conversations between P and some people, I have indeed taken all these into account.[11]  I have concluded that all these would not be sufficient to enable P to have prospects of success (which in substance and reality exists) in her claim based upon the “soundless vibration” as alleged by P in her case, i.e. there has been soundless vibration emitting from 6J, cracking the 5J’s ceiling.

(8)  I have summarized P’s case as pleaded and as stated in her letter to the IO and the Management Office dated 11 June 2022 in [22] of the Injunction Decision.  P has failed to point out any error in that summary.  As stated in the Injunction Decision, P is in fact focusing on the vibration nuisance in her case.  I have also discussed the NCO in [39] to [41] of the Injunction Decision.  I am not persuaded that there is any error in that analysis.

(9)  P’s case is denied by Ds.  The burden of adducing evidence to show a serious question to be tried is on P.  Ds do not have the burden to adduce evidence to prove the negative.  For the sake of discussion, even assuming that there are some shortcomings in Ds’ evidence, it cannot be said that as a result of this, P would be regarded as having discharged the burden of proving a serious question to be tried.

C4.  Leave refused

21.  Having considered P’s submissions, in my view, P has not demonstrated that she has a reasonable prospect of success in the appeal.  Accordingly, leave to appeal must be refused.

D.   DISPOSITION

22.  I dismiss the October Summons.

23.  Costs should follow the event.  I order that costs of the October Summons be paid by P to Ds forthwith, with a certificate for counsel.  Ms Ho has asked for taxation.  In my view, costs of the October Summons could and should be summarily assessed.  I so order.  There be leave to Ds to file and serve a bill of costs for summary assessment within 7 days, and leave to P to file and serve a written reply to the said bill within 7 days thereafter.