HU WEI HSIN v. MA HUNG WING AND OTHERS

DCCJ 273/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 273 OF 2011

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BETWEEN

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JUDGEMENT

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1.  This is a claim for nuisance by an occupant in a residential apartment against her neighbour for the burning of incenses in the common area of a multi-storey building.

Background

2.  The Plaintiff is a tenant residing with her husband, namely Mr. Mak Wing Chuen (“the Plaintiff’s Husband”), at Flat C1 (“Flat C1”) on 8^th Floor, Block C, Laichikok Bay Garden (“the Building”), No. 272 Lai King Hill Road, Kwai Chung.  On the other hand, the Defendants are the occupiers and owners of Flat C3 (“Flat C3”) on the same floor of the Building.

3.  The Plaintiff’s parents lived in Flat C2 on the 8^th Floor of the Building.  As the health of the Plaintiff’s father was not good and to facilitate the taking care of his father, the Plaintiff rented Flat C1 as her residence for a term of 2 years in about May 2010.

4.  Ever since the Plaintiff had moved to live in Flat C1 in May 2010, she found that the occupants of Flat C3 have been burning incenses in the corridor of the 8^th Floor of the Building.  There were 2 censers in the corridor of the 8^th Floor besides the main gate of Flat C3: one at the eyesight level of the wall and the other one on the floor landing.  3 sticks of incenses were burnt in each of the censers on various times in a day for more than an hour with most of time unattended.  It is the Plaintiff’s case that the smell and the smoke emitted from the burning of the incenses continued to be trapped in the corridor of the 8^th Floor for many hours.  Further, the Plaintiff claims that the Defendants used unnecessary noise and foul language in the course of the ceremony after burning the incenses, swept the dust resulting from the burning of the incenses towards the main door of Flat C1 as well as the corridor of the 8^th Floor and threw some white powder of unknown nature towards the main door of Flat C1.  As a result of such alleged nuisance, the Plaintiff claims that the smell and the smoke emitted from the burning of the incenses went into Flat C1 including the living room and the bedrooms.  Consequentially, the Plaintiff, the Plaintiff’s Husband and the new-born baby all suffered discomfort in breathing, and the former two also suffered from headaches and choking.  To avoid the smell and the smoke from getting into Flat C1, the Plaintiff and the Plaintiff’s Husband kept the main door closed all the time, and they also used wet towels and door wraps to seal the gap between the main door and the door frame.  They also purchased 2 air purifiers to purify the air.  At one time, they put an electrical fan in the gap between the metal gate and the wooden door in the main entrance of Flat C1 to get rid of the smell and the smoke but with no apparent result.

5.  The Plaintiff commenced the present action against the Defendants on 21 January 2011.  On 25 February 2011, the Plaintiff took out an application for interlocutory injunction to restrain the Defendants from burning incenses in the common area of the Building.  In the hearing before myself on 18 March 2011, the Defendants gave an undertaking to the Court in the following terms (“the Undertaking”):

(i) the Defendants would only burn incenses twice a day once in the morning and once in the evening;

(ii) the number of incenses in each of the 2 censers would be limited to 3; and

(iii) the burning time of the incenses would be limited to 35 minutes for each of the burning.

6.  Since the Defendants had agreed to provide the Undertaking, I did not consider it necessary to order any interlocutory injunction at that stage, and a speedy trial would be more appropriate to resolve the dispute between the parties.  As there was not much preparation needed for the trial, I also proceeded to fix the date for trial 2 months later on 19 May 2011.

7.  The parties also made an attempt to resolve their dispute by way of mediation in the limited time before the trial. Unfortunately, the mediation was not successful and here comes before me the trial of the action.

8.  The Plaintiff’s claim is one based on nuisance. In the Amended Statement of Claim, the Plaintiff also claims that the Defendants were in breach of the various provisions in the Deeds of Mutual Covenant of the Building (“the DMC”) and the Residents’ Handbook passed in Annual General Meeting of the Incorporated Owners of the Building on 15 November 2009 (“the Residents’ Handbook”).  However by reason of s. 16 of the Building Management Ordinance, Cap. 344, Ms. Gwilt, counsel for the Plaintiff, accepts that only the Incorporated Owners of the Building has the right to enforce the provisions in the DMC and the Residents’ Handbook insofar as they are related to the use and the rights in the common area of the Building, and so the Plaintiff does not pursue the claims based on the breach of the provisions in the DMC and the Residents’ Handbook.

9.  The Plaintiff herself was confirmed pregnant in August 2010.  The Plaintiff claims that because of the smoke and the smell of the incenses, she had suffered so much stress that she was often unable to sleep.  As a result of inhaling the smoke and the stress caused, the Plaintiff was suffering from dysmaturity complicating pregnancy.  On 9 March 2011, the baby was born prematurely with low birth weight by way of urgent caesarean delivery.  On 13 March 2011, the baby was discharged from hospital and was soon found to have suffered from respiratory discomfort.  Dr. Chan Sze Man, a paediatric specialist, is of the opinion that there may be many causes for the symptom.  However, exposure to environmental air pollutants including smoke from burning joss-sticks is “an important consideration”.  Further, according to some of the research done by the Plaintiff’s Husband, the smoke emitted from the burning incenses contains carcinogenic and other chemical substances which are harmful to pregnant woman and baby.

10.  However, the Plaintiff is required to obtain expert evidence to substantiate these allegations.  As the Plaintiff has not obtained any leave from the court in adducing expert evidence at the trial, Ms. Gwilt accepts that the court should not proceed on the basis that the burning of the incenses was the cause of the dysmaturity complicating pregnancy suffered by the Plaintiff, or that the smoke emitted from the burning of the incenses does contain carcinogenic or other harmful substances.  Despite that, I am prepared to accept the evidence of the Plaintiff and the Plaintiff’s babysitter, Madam Suen Lai Ha, that because of the alleged nuisance on the part of the Defendants, the Plaintiff could not sleep well and that the Plaintiff’s baby was suffering from some kind of respiratory discomfort after discharging from hospital.

11.  The Plaintiff also made a report to the Police on 2 occasions to complain about the burning of incenses after 10:45 pm: the first time on 31 October 2010 and the second time on 7 November 2010.

12.  Apart from seeking an injunction to restrain the Defendants from continuing to burn incenses in the common area of the Building, the Plaintiff is also claiming damages in a sum of $100,000 caused by the alleged nuisance on the part of the Defendants.  In the earlier stage of the proceedings, the Defendants had also filed a Counterclaim against the Plaintiff for the nuisance allegedly caused by the installation of a surveillance camera in the main door of Flat C1, but the Defendants had dropped the Counterclaim before the commencement of the trial.

The law

13.  It is a nuisance if a defendant unduly interfered with his neighbour in the comfortable and convenient enjoyment of his land.  A good summary about the law of such kind of nuisance can be found in paragraphs 20-10 and 20-11 of Clerk & Lindsell on Torts, 19 ed.:

“Question of degree In nuisance of [interference with his neighbour in the comfortable and convenient enjoyment of his land], ‘the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves’, there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of as constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as the time, place, extent or the manner of performance. In organised society everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours. Ordinary domestic use of premises therefore cannot constitute a nuisance, even though interference with the enjoyment of neighbouring premises is caused, if that interference results solely from construction defects for which the defendant is not responsible. In attempting to fix the general standard of tolerance the vague maxim sic utere tuo ut alienum non laedas has been constantly invoked. But the maxim is of no use in deciding what is permissible limit in inconvenience and annoyance between neighbours, and the courts 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 claimant 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.

‘Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact.’

Standard of comfort A nuisance of this kind, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man.  An interference which alone causes harm to something of abnormal sensitiveness does not of itself constitute a nuisance.  A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or for pleasure. … … … But once the nuisance is established, the remedies by way of damages or an injunction will extend to delicate and sensitive operations such as the growing of orchids.  When it is said that a householder is entitled to have the air in his house untainted and unpolluted by any acts of his neighbour, that means that he is entitled to have ‘not necessarily air as fresh, free and pure as at the time of building the plaintiff’s house the atmosphere then was, but air not rendered to an important degree less compatible, or at least not rendered incompatible, with the physical comfort of human existence’.  Moreover, the discomfort must be substantial not merely with reference to the claimant; it must be of such a degree that it would be substantial to any person occupying the claimant’s premises, irrespective of his position in life, age, or state of health; it must be ‘an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people’.  … … … Thus, to send regularly large volumes of heavy smoke over a field habitually used for sporting activities may well be accounted a nuisance.  And normal horticulture is certainly protected.  It is not necessary to prove injury to health.  …  … …”

14.  The following principles are clear from the said passage:

(i)   there is no precise or universal formula for determining whether there is an actionable nuisance, and it is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance;

(ii)   everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours;

(iii)   the court has to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property;

(iv)   a nuisance, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man, and an interference which alone causes harm to something of abnormal sensitiveness does not of itself constitute a nuisance; and

(v)   once the nuisance is established, the court can take into account the delicate and sensitive characteristics of the plaintiff in determining the issue of remedy.

15.  Both parties agree with these legal principles.

Application of the legal principles and the findings of fact

16.  The Defendants do not dispute that they have been burning incenses in the 2 censers placed outside Flat C3.  They say that it has been their family tradition for 40 years, and they did it twice a day.  There are also 21 flats in the Building which have similar censers placed outside their flats.  However, they dispute that they had been sweeping the dust resulting from the burning of the incenses out to the corridor, in particular in the direction of Flat C1.  The 2^nd Defendant also disputes that she had thrown some substance of unknown nature in the corridor in the direction of Flat C1.  She also disagrees that she had cursed the Plaintiff and the Plaintiff’s Husband when she was worshipping, whether with the use of foul language or not.

17.  For security purpose, the Plaintiff had installed a surveillance camera in the main door of Flat C1 pointing in the direction of the corridor.  After looking at the video clips taken by such surveillance camera, I have no doubt in my mind that the Defendants had done all the acts mentioned in the last paragraph.  The video clips clearly show that:

(i)   on 11 occasions from 19 November to 15 December 2010, the 2^nd Defendant had been deliberately sweeping the dust resulting from the burning of incenses out to the corridor, sometimes in the specific direction of Flat C1;

(ii)   on 21 November 2010, the 2^nd Defendant had been throwing some substance out to the corridor in the direction of Flat C1, and the Plaintiff’s Husband later confirmed that there was some white dust in that particular location when he later returned home that day; and

(iii)   on 8 occasions from 25 November 2010 to 13 January 2011, either the 1^st Defendant had spoken foul language in the direction of Flat C1 when he left or returned to Flat C3, or the 2^nd Defendant had cursed the Plaintiff and the Plaintiff’s Husband sometimes with the use of foul language (on one particular occasion, the 2^nd Defendant had expressly cursed the Plaintiff and the Plaintiff’s husband that they should soon “return to heaven” (回歸天國)).

18.  After looking at the video clips, the 2^nd Defendant says that she is deeply remorseful for her irresponsible conduct in sweeping the dust out to the corridor, and she blames her lack of education for such behaviour.  For the use of the foul language and the cursing, the 2^nd Defendant claims that she was frustrated because of the noise of the fan installed by the Plaintiff’s Husband at the main door of Flat C1, and so she uttered the foul language to release her tension.  She also claims that she does not know the meaning of “returning to heaven”, and so she had no intention of cursing the Plaintiff and the Plaintiff’s Husband when she uttered those words.

19.  I do not accept these explanations by the 2^nd Defendant.  The noise of the Plaintiff’s fan could be captured in the video clips.  But as shown in such video clips, the Plaintiff’s fan was not turned on most of the time when the 2^nd Defendant uttered the foul language in the direction of Flat C1, and so I do not accept that the 2^nd Defendant was just voicing out her frustration in response to the noise of the fan.  Further, the 2^nd Defendant had not mentioned any of such frustration in her previous affirmation, and so I doubt whether that was indeed the case.  It also defies common sense that the 2^nd Defendant does not know the meaning of “returning to heaven”.  To me, it is clear that the 2^nd Defendant was cursing the Plaintiff and the Plaintiff’s Husband as a revenge for the lodging of the complaint relating to the burning of incenses.  I also accept the evidence of the Plaintiff and the Plaintiff’s Husband that they could sometimes hear the foul language and the curses inside Flat C1 without the use of the surveillance camera.

20.  I have reminded myself that cursing the Plaintiff and the Plaintiff’s Husband was not a nuisance by itself.  Further, I should not allow such offending behaviour to cloud my judgment as to whether the Defendants’ burning of the incenses had substantially interfered with the Plaintiff’s enjoyment of the land.  However, since the 2^nd Defendant’s conduct as shown in the video clips is plainly inconsistent with her denials in her earlier affirmation, the 2^nd Defendant has lost all her creditability as a reliable or honest witness.  Hence, insofar as there is any dispute of fact between the 2^nd Defendant’s evidence and the testimony of the Plaintiff’s witnesses, I prefer to accept the latter.  Further, I would certainly take into account the 1^st and the 2^nd Defendants’ irresponsible and hostile behaviour prior to the commencement of the proceedings in deciding the issues of quantum of damages, if the matter so arises, and costs in due course.

21.  The 2^nd Defendant’s daughter also testifies in the hearing.  However, since she was mainly responsible for purchasing the joss-sticks and she was not involved in most of the incidents mentioned above, her evidence carries very little weight in my determination of the merits of the case.  Some of her other evidence, for example that relating to the unpleasant conversation with the Plaintiff’s mother, has not been included in her witness statement, and so I would ignore it for the purpose of the trial.

22.  Despite such findings, did the smoke, smell and dust caused by the burning of the incenses constitute a nuisance?  One must bear in mind that even accepting the Plaintiff’s evidence in its entirety, there was still a possibility that the Plaintiff and the Plaintiff’s Husband were simply too sensitive to the smoke and the smell caused by the burning of the incenses.  In determining the issue of nuisance, the court is not applying the standard of the Plaintiff but that of an average person.

23.  In order to assess the effect of the smoke and the smell, I have conducted a site visit to Flat C1 together with the parties on the first day of the trial.

24.  Here are my observations.  The surroundings of the corridor on the 8^th Floor of the Building are more or the less the same as those shown in the photographs and the layout plan included in the trial bundle.  Flats C1, C3 and C5 are one side of the corridor and Flats C2, C4 and C6 are on the other side.  The lift is near the middle part of the main corridor. As shown in the layout plan, there is a window in the corridor near to the lift measuring about 4 feet by 3 feet 10 inches in size.  Outside the window, I can see a long and narrow gap between Flats C5 and C6 leading out to the street. 

25.  In order to experience the smoke and smell caused by the burning of incenses, we have burnt 4 kinds of joss-sticks during the site visit, with 3 joss-sticks each time in the upper censer and in the lower censer.  We first started with the 11-cm long so-called “environmental friendly” joss-sticks.  I am given to understand that this was the kind of joss-sticks used by the Defendants after the making of the Undertaking.  After burning the joss-sticks for about 3-4 minutes, I detected some smell inside Flat C1 in the living room at a spot of about 5-6 feet from the main door, but the smell was not strong.  By that time, the main door was closed and I noticed that there was some door wraps at the door frame of the main door.  One of the windows of the living room was open and the ventilation fan of the kitchen of Flat C1 was turned on during the test.  After the burning of the joss-sticks of about 15 minutes, I went out to inspect the corridor of the 8^th Floor.  The smell was more noticeable outside in the corridor, though I would not describe the smell as strong.  The smell was certainly one of the burning of incenses.

26.  We then burnt the 16-cm long “environmental friendly” joss-sticks.  After burning the joss-sticks of about 3-4 minutes, I detected the smell at the same spot in the living room but again the smell was not strong.  After about 15 minutes, I went out to the corridor.  This time the smell of the burning incenses was much stronger and I noticed some visible smoke in the corridor though not to a very serious extent.  I also felt that the smoke and the smell went into Flat C1 when we opened the main door of the flat.

27.  As the smell was quite strong and there was some accumulation of smoke, we decided to wait for 5 minutes before the burning of the next joss-sticks.  During the interval, we switched on a few fans with a view to get rid of the smell and the smoke. 

28.  We then burnt the third and the fourth kinds of joss-sticks, both of which were 24 cm in length.  I am given to understand that these joss-sticks were similar to the ones used by the Defendants prior to the commencement of the proceedings.  The third kind of joss-sticks were smaller in diameter and the fourth kind larger in diameter.  These were not the so-called “environmental friendly” joss-sticks.  Since the Defendants have not used the “non-environmental friendly” joss-sticks anymore, the Defendants borrowed the third and the fourth kinds of joss-sticks from their neighbours for the purpose of the test.  The Plaintiff claims that the diameter of the joss-sticks used by the Defendants prior to the giving of the Undertaking was somewhat in the middle between those of the third and the fourth kinds of joss-sticks.

29.  After the burning of the third kind of joss-sticks for about 3-4 minutes, I detected the smell of burning incenses at the same spot in the living room of Flat C1, though I would not describe the smell as very strong.  After the burning of about 10 minutes, we went out to inspect the corridor.  This time the smell of the burning incenses was very strong and I saw visible and serious accumulation of smoke in the corridor outside Flats C1 and C3.  I also felt that the smell and the smoke rushed into Flat C1 when we opened the main door of the flat.  I also went to inspect the other side of the corridor on the 8^th Floor outside Flats C2, C4 and C6.  I could smell burning incenses on that side of the corridor, though the smell was not so strong as compared with that in the section of the corridor outside Flats C1 and C3.

30.  We then waited for 5 minutes before the burning of the fourth kind of joss-sticks.  The result was more or less the same as that demonstrated by the burning of the third kind of joss-sticks.

31.  The third and the fourth kinds of joss-sticks are similar to the ones used by the Defendants prior to the commencement of the proceedings.  After attending the site visit and feeling the effect of the burning of these two kinds of joss-sticks, I have reason to believe that, prior to the commencement of the proceedings, there was a strong smell and serious accumulation of smoke in the corridor when the Defendants burnt the incenses in the censers.  As I observe it, the problem was already quite serious when the joss-sticks were burnt for a period of 10-15 minutes during the site visit, and we need to wait for a short while to clear the smell and the smoke before testing the next kind of joss-sticks.  In such circumstances, I can imagine that the smell and the smoke would have been much more serious when the Defendants were burning the incenses for over an hour prior to the commencement of the proceedings.  Furthermore, the types of joss-sticks used in the site visit might be different from the ones actually used by the Defendants, and I accept the evidence of the Plaintiff that the smell experienced by her prior to the commencement of the proceedings was stronger and much more offending, and the Plaintiff could detect the smell even when she was in the bedroom of Flat C1.

32.  During the site visit, I could experience for myself that the smoke and the smell rushed into Flat C1 when we opened the main door of the flat.  In fact, the layout of the corridor explains why this was the case.  There is a window in the corridor and so there would be some air blowing into the corridor from the direction of the window.  In the event that there is a serious accumulation of smoke and smell in the corridor between Flats C1 and C3, the flow of air would cause the smoke and smell to rush into Flat C1 when the Plaintiff opens the main door.  One does not need an expert to explain such phenomenon.

33.  Apart from the smell and the smoke, the 2^nd Defendant did not clean the dust after the burning of the incenses.   Even worse, the 2^nd Defendant deliberately swept the dust out to the corridor, sometimes in the direction of Flat C1.  From the video clips taken by the surveillance camera, I can actually see a cloud of dust blowing in the direction of Flat C1 when the 2^nd Defendant was sweeping the dust.  In such circumstances, a significant amount of dust would be blown into Flat C1 causing considerable nuisance and disturbance.  Hence, taking into account the overall effect, I have no doubt in my mind that the Defendants’ burning of the incenses prior to the giving of the Undertaking had seriously interfered with the Plaintiff’s enjoyment of the land to the extent that it constituted a nuisance.  It exceeded the tolerance that the law expects from an average person, and the Plaintiff is therefore entitled to claim for damages resulting from such wrongful acts on the part of the Defendants.

34.  Ms. Tse, counsel for the Defendants, submits that the burning of the incenses did not constitute nuisance.  The Defendants have been burning incenses ever since they had moved to live in Flat C3 in 2006.  Apart from the family members of the Plaintiff who resided in Flat C2, there has been no complaint by any of occupants on the 8^th Floor of the Building (which is disputed by the Plaintiff), in particular the previous occupant of Flat C1.  Further, there are about 21 flats in the Building with censers placed outside in the corridors, and yet there has been no serious complaint by the other residents of the Building.  Finally, if the Plaintiff was so concerned about the welfare of her baby, she should have put the baby in her parents’ residence in Flat C2.  As the Plaintiff has not done so, she has exaggerated the extent of the problem.

35.  However, the absence of complaint does not legitimise the act.  As I see it, the occupants of Flat C1 would suffer the most if there is any serious accumulation of smoke and smell in the corridor between Flats C1 and C3. Further, the previous occupant of Flat C1 was an old man and there might be a lot of reasons why he did not have any strong feeling about the performance of such traditional Chinese ritual.  Indeed, if such activity was not causing any disturbance to the neighbours, the Incorporated Owners of the Building would not have included a provision in the Residents’ Handbook in 2009 prohibiting the burning of incenses in the common area of the Building.  It also explains why there are similar provisions in the deeds of mutual covenant of many other buildings in Hong Kong.  Finally, I accept the Plaintiff’s explanation that, because of limited available space, it would not have been convenient to ask the baby to stay in Flat C2 most of time.

36.  What is most important is that I can experience for myself the extent of the smoke and smell caused by the burning of the incenses during the site visit.  There is also concrete evidence to show that the 2^nd Defendant was sweeping the dust resulting from the burning of the incenses out to the corridor sometimes in the direction of Flat C1.  To me, such act alone constituted a nuisance.  I do not want to repeat the observations that I have made above, save that to say that, in my judgment, the smoke, the smell and the dust produced by the burning of the incenses prior to the giving of the Undertaking had exceeded the tolerance that the law would expect from an average person, and hence the Plaintiff has successfully established an actionable nuisance against the Defendants in the present case.

The improvement after the making of the Undertaking

37.  The next and perhaps the more difficult question is whether the burning of the new kind of joss-sticks after the making of the Undertaking still constitutes a nuisance.  It is common ground that there was an improvement in the situation after the making of the Undertaking. The Defendants switched to use to the 11-cm long “environmental friendly” joss-sticks.  Because the sticks were shorter, the burning time was reduced to about 25 minutes.  Apparently, the smell was not that strong and they also produced less smoke.  In such circumstances, does the burning of the new kind of joss-sticks still constitute a nuisance so that the court should grant a permanent injunction prohibiting the burning of all kinds of incenses on the part of the Defendants?

38.  That was the first kind of joss-sticks that we tested during the site visit.  As I have mentioned above, after burning the joss-sticks for about 3-4 minutes, I detected some smell inside Flat C1 in the living room at a spot of about 5-6 feet from the main door, but the smell was not strong.  After burning the joss-sticks for about 15 minutes, I went out to inspect the corridor of the 8^th Floor.  The smell of the burning incenses was more noticeable in the corridor, though I would not describe the smell as strong.  These joss-sticks also produced less smoke and so there was no serious accumulation of smoke in the corridor.  During the site visit, after the burning of the first kind of joss-sticks, we did not need to wait for some time before conducting the next test.  To a great extent, it showed that the smell and the smoke produced by the 11-cm long “environmental friendly” joss-sticks were not serious.  This was not the same with the other kinds of joss-sticks tested in the site visit.

39.  In such circumstances, I have serious doubt in my mind whether the Defendants’ activity has still crossed the threshold of nuisance. In particular, the law requires everyone in an organised society to put up with a certain amount of discomfort and annoyance caused by the activities of his neighbours.  After the making of the Undertaking, the amount of smell and smoke produced by the burning of the incenses was much less.  The Defendants also cleaned the censers regularly with a view to avoid the blowing of the dust.  The duration of the burning was also much shorter.  With these improvements, subject to the conditions that: (i) the joss-sticks are of the kind that we used in the first burning during the site visit; (ii) the burning is limited to 2 times a day; (iii) each burning should not be more than 30 minutes; and (iv) the Defendants have to clean the censers on a regular basis, the Defendants should be allowed to continue with their family tradition of burning incenses in the corridor of the Building.

40.  Ms. Gwilt is asking the court to ban the burning of all kinds of incenses in the corridor.  Despite the Plaintiff acknowledges that there was an improvement in the situation, the Plaintiff’s new-born baby and babysitter are still suffering from breathing difficulty by reason of the smoke produced by the burning of the incenses.

41.  In this regard, I must stress that there is no expert evidence to prove the causal link between the breathing problem suffered by the Plaintiff’s baby and the smoke produced by the burning of the incenses.  In fact, I am given to understand that the Plaintiff was putting the baby in the bedrooms of Flat C1 when the Defendants burnt the incenses.  Taking into account the mild smoke and smell that I observed during the site visit, I doubt very much whether the baby could have been affected under such circumstances, and whether there might be other factors causing the respiratory discomfort.  Further, there is no evidence to prove that the smoke emitted from the burning of the incenses contains carcinogenic or other chemical substances which are harmful to human beings.  If the Plaintiff can substantiate such allegation, I would have no hesitation in granting an injunction banning the burning of all kinds of incenses, which would certainly have a grave impact on the survival of such Chinese religious tradition and ritual.

42.  The Plaintiff also points out the fire hazard associated with the burning of incenses.  However, since the Fire Services Department had carried out an inspection of Flat C3 and did not raise any particular complaint about the burning of incenses, I do not think that it is a material consideration.

43.  In determining the issue of nuisance, the court is not applying the standard of that set by the Plaintiff or her witnesses. Instead, the law requires the court to apply the standard of an average person.  If the Plaintiff still complains about the burning of incenses after the making of the Undertaking and that she is still a prisoner in her own home, I would say that she is now too sensitive.  However, with her sad experience in the past year, in particular the hostile reception that she received from the Defendants, I can fully understand why the Plaintiff and the Plaintiff’s Husband have become so sensitive now and why they want the Defendants to stop the burning of all kinds of incenses.  This can avoid all the arguments in the future.  However, one should not lose sight of the “average man” test as mentioned above, and the Plaintiff therefore has to put up with a certain amount of discomfort and annoyance caused by the burning of the new kind of incenses.

44.  In the case that the court is to allow the burning of the new kind of incenses, Ms. Gwilt asks the court to limit the number of joss-sticks to one for each censer to minimise the disturbance. However, in view of the findings that I made during the site visit, there is simply no basis for the court to impose further restriction in this regard.

Breach of the provisions in the DMC and the Residents’ Handbook

45.  It is the Plaintiff’s case that the Defendants were clearly in breach of the provisions in the DMC and the Residents’ Handbook.  Amongst other complaints, the Plaintiff claims that the Defendants were in breach of: (i) Clause 10(k) of the DMC by placing the censers in the common area of the Building; and (ii) Clause 6 of Chapter 6 of the Residents’ Handbook by burning incenses in the common area of the Building.  By reason of such obvious wrongful conduct on the part of the Defendants, Ms. Gwilt seems to ask the court to grant a permanent injunction restraining the Defendants from burning all kinds of incenses in the corridor irrespective of the effect of such activity.

46.  However as conceded by Ms. Gwilt at the commencement of the trial, this is a pure claim on nuisance and the Plaintiff has no locus to enforce the provisions in the DMC and the Residents’ Handbook insofar as they are related to the use and the rights in the common area.  In determining whether to grant a permanent injunction, the court is therefore only concerned with the effect of the Defendants’ activity on the Plaintiff’s enjoyment of the land, and the court would not try to enforce the provisions in the DMC and the Residents’ Handbook through the backdoor.  It is a matter between the Plaintiff and the Incorporated Owners of the Building.  If the Incorporated Owners refuses to take action against the Defendants, the Plaintiff can consider to commence legal proceedings against the Incorporated Owners in order to compel it to do so.   Having reached such conclusion, it is not necessary for me to consider the academic question whether the Incorporated Owners can waive the enforcement of the provisions in the DMC and the Residents’ Handbook.

Damages

47.  The Plaintiff is claiming a sum of $100,000 as damages for distress and inconvenience caused by the nuisance on the part of the Defendants.  As I find that the burning of the incenses prior to the giving of the Undertaking did constitute a nuisance, the Plaintiff is entitled to claim for such damages suffered by her in the period from about May 2010 to 18 March 2011.  Further, Ms. Tse concedes that, if liability of nuisance is established, all 3 Defendants would be liable for the tort.

48.  So far as quantum is concerned, Ms. Gwilt refers me to a number of water leakage cases in which the courts made similar kind of awards for the nuisance caused by the defendants.

49.  As shown by the authorities, there is no scientific way of translating inconvenience and discomfort into a sum of money, and the award has to be a conventional sum (see: So John v Lau Hon Man [1993] 2 HKC 356, at p. 359G).  In So John, the court awarded $10,000 in 1993 for water leakage lasting for a period of about 1.5 months.  In Leung Yung Chun v Chan Wing Sang, unreported, HCA No. 12235 of 1998 (decision of Cheung J. on 28 January 2000), the court awarded $80,000 in 2000 for damages for inconvenience caused by the water leakage which lasted for a period of nearly 2 years.  In Chung Che Shum v Dong Sai Ming Fernando, unreported, DCCJ No. 21504 of 2001 (decision of Deputy District Judge M. Chow on 15 February 2007), the court awarded $80,000 for such kind of damages relating to water leakage which affected 3 bedrooms for about 2 years.  However, it would not be easy to compare the distress and inconvenience suffered as a result of two different kinds of nuisance.

50.  As I find that the burning of the incenses prior to the giving of the Undertaking did constitute a nuisance, the tort in the present case lasted for a period of about 9 months.  There may be some dispute as to when the Defendants switched to use the 16-cm long “environment friendly” joss-sticks which produced less smoke and smell, but I do not think that it matters very much in the assessment exercise. Ultimately, the court can only try its best to put a figure to represent the inconvenience and distress suffered by the Plaintiff during such period of time.

51.  The smoke and smell had caused the Plaintiff to suffer headaches and difficulty in breathing.  These are physical discomfort which would not have been suffered by victims in water leakage cases.  Although there is no evidence to support the causal link between the nuisance and the dysmaturity complicating pregnancy suffered by the Plaintiff, I accept that the nuisance was causing a lot of psychological stress on the part of the Plaintiff and as a result she could not sleep well at nights. The nuisance was made worse when the Defendants were reacting in a hostile manner against the Plaintiff and she was pregnant at the relevant time.  As laid down in the passages in Clerk & Lindsell on Tort mentioned above, once an actionable nuisance is established, the court can take into the personal circumstances of the individual plaintiff in assessing his or her damages.  When the flat she was living in was flooded with smell and smoke caused by the burning of incenses, it was only natural that the Plaintiff had genuine concern for her own health and the health of her baby, and one should not underestimate the distress suffered by the Plaintiff during such difficult time.

52.  Despite such observations, I am of the view that the figure claimed by the Plaintiff is too high.  The duration of the nuisance was much shorter than that experienced in some other water leakage cases, and the nuisance only occurred at certain times of the day.  Taking into account all the circumstances of the case, I award a sum of $75,000 as damages for distress and inconvenience which is equivalent to three-quarters of the sum claimed by the Plaintiff.

53.  In arriving at the said figure, I have taken into account the special features in this case, including the psychological stress caused to the Plaintiff by the Defendants’ nuisance and hostile behaviour during the difficult time of her pregnancy.  Had there been no such special features in the case, I am of the view that the quantum of damages should be much less.

Final observations

54.  I would add a few more observations about this case.  In a multi-cultural society like Hong Kong, we should always respect the Chinese culture and the right of individuals to carry out any kinds of worship or religious ceremony.  However, if such activities constitute a nuisance to the neighbours, in particular if the activities are performed in the common area of a multi-storey building, then such kind of activities should not be allowed.  This has nothing to do with the right to worship.

55.  Similar disputes would not occur in a lot of the buildings in Hong Kong where there are clear provisions in the deeds of mutual covenant prohibiting the burning of incenses in the common area.  In some of the older buildings where there are no clear provisions, like that in the present case, similar disputes between neighbours may continue to occur. However, this case should not be construed as a precedent which provides that the burning of certain kinds of joss-sticks is permissible whilst the burning of other kinds is not.  Nuisance is very much a fact-sensitive claim.  In determining whether certain activity affects the neighbour’s enjoyment of the land, the court can only make a decision based on the facts of the particular case concerned.  Further, there is positive evidence in the present case that the 2^nd Defendant was sweeping the dust out to the corridor sometimes in the direction of the Plaintiff’s flat which, by itself, was a nuisance.  The ventilation and the layout of the corridor concerned may also be important factors.  Hence, if the facts are different in some other cases, then different considerations apply.

56.  As we all know, the living condition in Hong Kong is rather crowded.   Most of us have to live in multi-storey buildings with very little space between neighbours.  In such kind of environment, disputes between neighbours are not uncommon. As the neighbours would continue to live in the same building, it is certainly desirable for them to resolve their dispute in an amicable manner so as not to destroy the harmonious living environment. They should also be more considerate about the welfare of the others.  Unfortunately, I do it see it happening here in the present case.

57.  It first started when the Plaintiff made a complaint against the Defendants about the burning of incenses.  Since no similar complaint had been made before by other occupants on the 8^th Floor of the Building, the Defendants, without carrying out any investigation or trying to understand the extent of the problem, simply dismissed the Plaintiff’s complaint as unfounded and concluded that the Plaintiff and the Plaintiff’s Husband were too sensitive and they were the ones creating the trouble.  It was such kind of mentality and lack of objectivity that caused the 1^st and the 2^nd Defendants to react in a hostile manner against the Plaintiff and the Plaintiff’s Husband, resulting in the escalation of the dispute which eventually ended up in the court.   Further, if the Defendants were willing to take remedial measures at an earlier time, such as using the new kinds of incenses and cleaning the censers and the dust regularly, I am quite sure that this legal action could have been avoided. Hence, the Defendants have only themselves to blame for losing the substantial part of the case.  The only comfort I have with this case is that the whole action can be concluded about 4 months after the issuance of the Writ, which, to some extent, can reduce the pressure of the parties experienced in the course of litigation.

58.  Since I do not ban the burning of all kinds of incenses, there may still be disputes between the parties in the future. However, I can only urge them to be more considerate about the welfare of their neighbours.  This is the lesson that they should learn from this case.  If they still adopt the same attitude in approaching the issue, I am quite sure that there will be more litigations to come.  I do not think that this would be in the interest of the parties.

59.  By reason of the aforesaid, I grant judgment in favour of the Plaintiff against all 3 Defendants in the sum of $75,000.  I would also grant an injunction restraining the Defendants from burning incenses unless under the conditions mentioned in paragraph 39 above.  I direct the parties to submit to the Court the terms of the injunction for approval within 14 days.  In the case that there is any dispute about the wording of the injunction, the parties are directed to fix a further hearing before myself.  In the meantime, the Undertaking is still binding on the Defendants.

60.  The Plaintiff should get all her costs of the proceedings up to the giving of the Undertaking.  For the proceedings after that, the Plaintiff is not successful in all her claims, at least the Plaintiff cannot obtain an injunction to restrain the Defendants from burning all kinds of incenses.  Hence, I make an order nisi that:

(i)   there be interest on the said judgment sum at the rate of 8% per annum, which is the existing judgment rate, from 21 January 2011, which was the date of the Writ, to the date hereof and thereafter at judgment rate;

(ii)   the Defendants do pay to the Plaintiff: (a) all the costs of the action up to and including the hearing on 18 March 2011; and (b) 75% of the costs of the action incurred after the hearing on 18 March 2011; and

(iii)   there be certificate for counsel.

The order nisi shall be made absolute 14 days after the date of the handing down of this judgment.