EVERTRADE ENTERPRISE COMPANY (H.K.) LTD. v. CHAN YUEN WING t/a CHAN WING KEE AND OTHERS

BETWEEN

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JUDGMENT

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1. This in many respects is an unfortunate case. The plaintiffs bought the site in question which is part of Lot 132 in Shaukiwan as long ago as 1977. At that time there were three or four wooden structures upon the site. One of them was owned and occupied by the 3rd defendant, Mr. Woo. Another was owned and occupied by the predecessor in title of the 4th defendant, who was the original 1st defendant. As a result of proceedings taken before the then Tenancy Tribunal the defendants were ordered in effect to give possession of the site to the plaintiffs in return for compensation. But the structures concerned did not exist only upon this site. They all extended onto the adjoining street.

2. That street seems to have been in existence for many years. In the original indenture of 1860 the whole of this Lot was said to abut on the south-east side to a public street. I have had other plans produced to me which confirmed the existence of this area as a street. Before the matter was interrupted, as I understand it, by MTR construction works, it was not a cul-de-sac as it now seems to be, but extended into an adjoining street at something like T-junction which was at one time called "Nam On Street". It is at present being reconstructed in some new form. So there is no doubt that the parts of this structure now complained of, in my judgment, have been erected upon Crown land which was many years ago dedicated as a highway.

3. Following the proceedings before the Tenancy Tribunal the plaintiffs sought to enlist the help of various government agencies. They were in this position. They had recovered possession of the site, but by reason of the existence of these structures they could not get it. Although there were time limits imposed upon them in the original exclusion order (it goes back as far as 1981), they have not in fact been able to start this development at all. Sadly as it seems to me the plaintiffs got no help at all. They were referred from one government agency to another, but none of those agencies seemed to concern themselves in the least with the preservation of the public highway as a highway. The position adopted by the Squatter Control of the Hong Kong Housing Authority was that they, that Authority, tolerated the presence of there structures. These proceedings have resulted.

4. As a matter of law, it seems to me that the occupier of premises abutting on to a public highway, is entitled to access from that highway to his premises along the length of his frontage. These plaintiffs have no access at all. Although the obstruction to the highway caused by the erection of these structures primary constitutes a public nuisance, these plaintiffs seem to me obviously to have suffered special damage. Accordingly there is ample authority for the proposition that they are entitled to sue in respect of such obstruction. But it has been made plain to me by their counsel that they are not concerned with the recovery of any financial penalty by way of damages or costs. They simply want to see these structures removed. They simply want to get access to their site, and they are prepared to give time to these defendants for that event to happen.

5. Both these defendants, I think, recognised that they are squatting on a street area, and that they have some difficulty in maintaining their position there, notwithstanding that in the case of the 3rd defendant in particular, he has been there for many years. Both have asked the court to help them to find other accommodation. Both have said that since the plaintiffs in their estimation are clearing them off their site the plaintiffs should have to provide them with resettlement accommodation elsewhere. I have great sympathy with their position, but I am bound to tell them that the plaintiffs are under no such obligation at all. The only governmental body that I believe is in the position to help, and which I hope will now extend some assistance, is the Squatter Control Department of the Hong Kong Housing Authority. I cannot do anything more to help the defendants than to give time for representations to be made to that Authority. They are perfectly free to transmit my views to that Authority if they want to do so.

6. What I would say to that Authority is this: Until now, you, the Authority, have been prepared to tolerate the structures on this street, and on that basis you rejected the plaintiffs' request for assistance by the letter of 4th March of 1983. That situation no longer applies, because this Court is not prepared to tolerate the existence of these structures any longer. I therefore hope that the Authority may be able to see its way to lend some assistance to both these defendants now.

7. In these circumstances the plaintiffs in my judgment are entitled to the injunction that they claim in paragraph 1 of the prayer, which in simple terms is equivalent to an order for possession. But I am not going to make that operative for a period of two months. I will grant the injunction, but say that it is not to take effect for a period of two months from today. The object to that is that the defendants will be able to go back to Squatter Control and tell them what this Court had done. Tell them that this Court no longer tolerates their position on this street, and that it hopes that they can now render some assistance to them. I hope that that request will be well received by Squatter Control.

8. Since no other relief or costs is asked for, my order will simply be an injunction in the terms of paragraph 1 of the prayer which is not to issue until two months from today.