TAM SEEN MANN ESTEFANIA v. CHAN NORMAN AND ANOTHER

CACV 186/2014 AND CACV 187/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPPEALNO. 186 of 2014

(on appeal from HCA NO. 627 OF 2010)

________________

_________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPPEALNO. 187 of 2014

(on appeal from HCA NO. 726 OF 2011)
________________

______________________________

REASONS FOR JUDGMENT
______________________________

Hon Cheung JA:

1. I agree with the Reasons for Judgment of Yuen JA.

Hon Yuen JA:

2. At the conclusion of the hearing of CACV186/2014 (“CACV186”) and CACV187/2014 (“CACV187”) on 11 March 2015, this court dismissed both appeals with costs.  My reasons appear below.

The proceedings

3. CACV 186 is an appeal from HCA627/2010 (“HCA627”).  CACV187 is an appeal from HCA726/2011 (“HCA726”).

4. Unfortunately these actions involved disputes between neighbours.  At the material times all the parties lived in 34F and 34G Braga Circuit, which is a single building with a common stairwell in the middle.

HCA627

5.1.  In HCA627, the plaintiffs are Mr and Mrs Tam and their daughter Ms Tam (collectively “the Tams”).

5.2.  Mr and Mrs Tam live in 34G on the Ground floor.

5.3.  At the material times, Ms Tam lived with her husband and their baby in 34F on the 2^nd floor.

6.1.  The defendant is Mr Chan.  At the material times, he lived with his mother Mrs Chan (collectively “the Chans”) in 34F on the 1^st floor – in other words, the floor directly below Ms Tam, and one floor above and across the stairwell from Mr and Mrs Tam.

6.2.  Mr Chan was unhappy about the presence of unauthorised building works in the development, including works at Mr and Mrs Tam’s residence, and made reports to the Buildings Department.  He took the matter very much to heart.

7.1.  In HCA627, the Tams alleged that Mr Chan had on a number of occasions acted in such a way as to make them fear for their personal safety.

7.2.  They commenced this action on 4 May 2010 in tort for assault and/or harassment, and sought an injunction against Mr Chan.

7.3.  Mr Chan gave an undertaking to the court on 7 May 2010.

7.4.  There is no claim for damages.

HCA726

8. In HCA726, the plaintiff is Ms Tam and the defendants are the Chans.

9.1.  In this action, Ms Tam alleged that on a number of occasions starting in November 2010 shortly after she had a baby and ending on 19 April 2011, she and her family were disturbed at night by thumping noises from the slab between the Chans’ ceiling and her floor, and by loud radio and television sounds coming from the Chans’ residence.

9.2.  Ms Tam commenced this action on 26 April 2011 pleading nuisance, and sought an injunction against the Chans.

9.3.  Both defendants gave an undertaking to the court on 6 May 2011.

9.4.  Again there is no claim for damages.

Judgment of the trial judge

10. The two actions were ordered to be heard together.  The trial before Deputy High Court Judge Linda Chan SC took four days.  A number of persons, including Mrs Tam, Ms Tam and Mr Chan, gave oral evidence and were cross-examined.

11. The learned judge handed down judgment on 13 August 2014 and gave various orders against Mr Chan in HCA627 and against the Chans in HCA726, which are the subject matter of these appeals.  The Tams have filed a Respondent’s Notice which I will refer to later in these Reasons for Judgment.

12. Dealing with HCA627, the judge found that after an incident on 16 December 2008 (referred to at trial as “the First Encounter”) between Mr Chan and Mrs Tam when he shouted foul language at her, there were five other occasions up to and including 11 March 2010 (“the Further Encounters”) when Mr Chan approached the Tams shouting obscenities and gesturing in an intensifying aggressive manner.  A video of one such occasion was produced which the judge watched, which showed that Mr Chan had to be physically restrained by his mother repeatedly from advancing towards Mrs Tam and Ms Tam.

13.1.  Further the judge found that on 12 March 2010, the wall near the front door of Mr and Mrs Tam’s residence and the adjacent stairwell area were spray painted with the following large words in English: “COMMON AREA”, “NOT A STORAGE SPACE”, “UNAUTHORIZED BUILDING WORKS”, and “NO BEGGING FOR MONEY”.  On 11 April 2010 the same areas were spray painted (this time in red) with large words in English: “COMMON AREA”, “NOT A STORAGE SPACE” and “UNAUTHORIZED BUILDING WORKS”.  Photographs were taken and had been produced in evidence in court.

13.2.  Ms Comon, a domestic helper whose employer resided in 34F on the Ground floor, testified that in the early hours on the first occasion, she saw a man spray painting the words “COMMON AREA” on the wall outside Mr and Mrs Tam’s residence.  She identified him as the man who lived at 34F on the 1^st floor.  The judge found that this man was Mr Chan.

14. The judge held (para. 75, Judgment):

“In my view, any reasonable person faced with the First Encounter, the Further Encounters and the spray paint incidents would feel very threatened and would be put in fear of physical violence or injury, which is sufficient to constitute the tort of assault”. (Emphasis added).

She accordingly held that Mr Chan was liable for assault.

15. After considering various cases touching on the question, the judge held that there was no tort of harassment under Hong Kong law.

16.1.  The judge ordered that Mr Chan be restrained from assaulting, harassing, threatening or pestering the Tams, including:

(1) communicating with them with the intent to do any act restrained, whether in writing or orally;

(2) shouting or speaking obscenities or foul language towards them;

(3) taking photographs of them without their consent;

(4) causing damage to the Tams’ residences;

(5) spraying or applying any paint to their residences or to the immediate stairwell area outside the entrance of their residences.

16.2.  The judge also ordered that Mr Chan should pay the Tams’ costs of the action including those relating to his counterclaim which had in effect been struck out earlier.

17.1.  As for HCA726, the judge found that the Chans had caused or allowed excessive noises to emanate from their residence which interfered with and disturbed Ms Tam’s quiet enjoyment of her premises.  Accordingly she held that the Chans were liable for nuisance.

17.2.  In summary, the judge ordered that the Chans be restrained from:

(1) deliberately creating nuisance to Ms Tam by causing or allowing loud thumping noises, or excessive and unreasonably loud television or radio noises, to emanate from their residence at any time; and

(2) causing or allowing loud thumping noises, or excessive and unreasonably loud television or radio noises, to emanate from their residence between the hours of 11 pm and 7 am.

17.3.  The judge also ordered that the Chans should pay the Ms Tam’s costs of the action including those relating to their counterclaim which had in effect also been struck out earlier.

Appeals

18. Mr Raymond Fong, who appeared for the Chans at trial and before this court, did not seek to challenge the principle that an appellate court generally does not interfere with findings of primary fact.  That is well-established law.

Principles

19.1.  Before I proceed to examine his submissions challenging the judge’s findings of fact, it is necessary to remind ourselves of the rationale for the court’s approach.

19.2.  As Lord Hoffmann said in Biogen Inc v Medeva plc [1997] RPC 1 and repeated in Piglowska v Piglowski [1999] 1 WLR 1360:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation”. (Emphasis added).

19.3.  To this, Bokhary PJ added in Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC 601:

“Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v Edinburgh Tramways at p.36, ‘sometimes broad and sometimes subtle’. The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness”. (Emphasis added).

Discussion

20. With those passages in mind, I shall now consider Mr Fong’s submissions, first in respect of CACV186 (from HCA627).

21.1.  Mr Fong sought to submit first, that in respect of the First Encounter, the judge was in error in finding that a report made by a policeman Sgt Wong corroborated Mrs Tam’s evidence (para. 70, Judgment).

21.2.  To set the scene, the First Encounter occurred on 16 December 2008.  Mr Chan had brought some Buildings Department officers to the development and the watchman had asked to register their identifications.  This led to a dispute between Mr Chan and the watchman, resulting in Mr Chan calling the police.  Two police officers including Sgt Wong arrived at the scene.

21.3.  Mrs Tam, who was the chairman of the Incorporated Owners of 34G, happened to pass by and asked the watchman why police officers were present.  After the watchman told her why Mr Chan had called the police, Mrs Tam remarked that it was a waste of police resources.

21.4.  Words were exchanged.  Mr Chan spoke in English.  Mrs Tam retorted, objecting to Mr Chan speaking in English.

21.5.  Mrs Tam said Mr Chan then pointed at her, called her an “old woman” and scolded her for being “stupid”.  However in Mr Chan’s witness statement, he denied this and said he “did not reply to [Mrs Tam].  The Defendant [Mr Chan] could not behave in any uncivilized manner, since [Mr Chan] was aware that he is educated and a professional, which could not allow him to behave improperly even to the slightest degree” (para. 55, Witness Statement).

21.6.  On this issue, Sgt Wong’s record stated:

“Informant [Mr Chan] pointed and scolded Subject 3 [Mrs Tam] of being ‘Old Woman’ ‘Stupid’ etc”.

21.7.  Accordingly it is clear that in respect of this issue at least, the judge was right to say at para. 70 of her Judgment that Mrs Tam’s evidence was corroborated by the record made by the police.

22.1.  Mr Fong also submitted that Sgt Wong’s record showed that Mrs Tam was exaggerating because her evidence was that Mr Chan said he would scold her every time he saw her (見你一次就鬧你一次), which statement was not recorded in Sgt Wong’s record.

22.2.  However in my view it does not follow from the absence of that statement in Sgt Wong’s record that Mrs Tam was exaggerating when she said Mr Chan said those words. It is clear from Sgt Wong’s record that it contained general references to Mr Chan and Mrs Tam “scolding each other” and “quarrelling with each other”.  It is obvious from these general references that Sgt Wong, who was not called as a witness, had not purported to make a verbatim record of everything that was said by the persons at the scene.

22.3.  Mrs Tam was adamant during her cross-examination that Mr Chan had said those words, and after having seen and heard her give evidence first-hand, the judge accepted that she was an honest witness (paras 42 and 44, Judgment).

23.1.  Mr Fong further submitted that Mr Chan’s conduct at the First Encounter did not amount to a threat of violence and/or assault.  This was Sgt Wong’s view as confirmed in his record.  If it were otherwise, Sgt Wong would have arrested Mr Chan at the scene.  Therefore Mr Fong submitted that the judge erred when she found that any reasonable person faced with the First Encounter would feel very threatened and would be put in fear of physical violence or injury.  Mr Fong quoted para. 75 of the Judgment in support of this submission.

23.2.  However it is clear from para. 75 (set out in para. 14 above) that Mr Fong had only quoted part of the judge’s holding.  It was not the First Encounter only, but Mr Chan’s cumulative acts (as pleaded in para. 11 of the HCA627 Statement of Claim) that led to the judge’s finding that Mr Chan was liable for assault and should be subject to an injunction.

24.1.  Indeed on the basis of the incident captured on the video alone, the judge would have been entitled to find Mr Chan liable for assault and to order an injunction. The judge described the incident captured on the video in paras. 71(2) and 72 of the Judgment and held (para. 72):

“Having seen how Mr Chan behaved in the video, which was only one of the five occasions complained of by the plaintiffs, I consider that a reasonable person in the circumstances faced by the plaintiffs would be put in fear of physical violence or injury”.

24.2.  Mr Fong accepted that that was a correct formulation of the test.

24.3.  However Mr Fong submitted that Mr Chan should not be found liable for assault at the incident captured by the video because he did not have a weapon and had been restrained by his mother before getting to “punching distance” of Mrs Tam and Ms Tam.  This is not founded in law or in fact, and must be rejected.  It is clear from the judge’s finding, having watched the video, that Mr Chan’s acts threatened direct physical contact with the two women.

25. As for the spray painting incidents, Mr Chan denied that he was the person responsible.

26.1.   Mr Fong submitted first that in Ms Comon’s statement to the police on 22 March 2010, she had said that the incident occurred on 5 March 2010, a date one week before the date of the first incident.  However she said in her witness statement that she saw the incident on 12 March 2010 and explained that the wrong date had been given in the police statement (para.20).  When she was cross-examined in court, she confirmed the truth of her statement to the police, including the date she gave of 5 March 2010 (Transcript p.65).

26.2.  In my view, it is clear from the evidence that the first spray painting incident occurred on 12 March 2010.  That is established not only by Mrs Tam’s evidence but also by the watchman’s evidence and by contemporaneous documentation, ie the management company’s logbook.  There was no evidence, oral or written, that any areas in the development had been spray painted on 5 March 2010.  It is obvious that Ms Comon was confused about the date, but the rest of her evidence was clear as to what she had seen of the first spray painting incident.

27.1.   Mr Fong submitted that the judge failed to take into account the fact that when Ms Comon identified the person she had seen spray painting in her statement to the police, she did not identify Mr Chan by name.  She identified the “WP” (wanted person) as someone whom “I always see ... going in and out of No.34.  I know WP lives at No.34F 1^st floor ...”.  Mr Fong submitted the judge failed to consider the watchman’s evidence that Mr Chan’s younger brother also stayed at 34F on the 1^st floor.

27.2.  However the watchman’s evidence was that Mr Chan’s younger brother was seldom seen (Transcript p.17 G-H).  Not surprisingly therefore, Ms Comon referred to Mr Chan as the only man who lived at 34F on the 1^st floor.  In her Witness Statement, she referred specifically to the defendant as being the only man who lived at 34F on the 1^st floor, and in cross-examination she was clear that it was definitely him who she saw.

27.3.  Further there was no evidence at all that Mr Chan’s younger brother was interested in the issue of unauthorised building works, or had any disputes with the Tams.

27.4.  Clearly therefore the only reasonable inference was that it was Mr Chan who had spray painted the areas outside Mr and Mrs Tam’s residence.

28.1.   Finally Mr Fong also submitted that even if Mr Chan had been responsible for the spray painting, he had merely stated the truth that there were unauthorised building works.

28.2  With respect, that misses the point completely.  The vandalizing of the wall and stairwell areas, not once but twice, was completely out of line and showed an intensification of irrational behaviour.

29. The judge was clearly entitled to find that the tort of assault had been established and to give the injunctions sought.  That was sufficient for HCA 627.

30.1.   As for the interesting issue whether the tort of harassment exists in the common law of Hong Kong, the judge held that there was none.

30.2.  This is the subject matter of the Tams’ Respondents’ Notice.  However their counsel Mr Christopher Chain said, correctly, that if the judge’s finding of liability for assault is upheld and Mr Chan’s appeal in CACV186 is dismissed, it would not be necessary to consider the Respondents’ Notice.

30.3.  During the hearing of this appeal this court has considered whether it would be appropriate to deal with this issue in the present case.  We concluded that it would not be appropriate to set out our views on this important and possibly far-reaching issue in an obiter decision.

31.1.   Finally Mr Fong submitted that the injunctive reliefs granted were too wide.  By way of elaboration in his oral submissions, he said first that the injunctions were not necessary as Mr Chan no longer lived at 34F on the 1^st floor and secondly, that the acts of assault and/or nuisance had not been repeated.

31.2.  In my view neither submissions are founded.  Although there was evidence that Mrs Chan’s residence has been put on the market, there was no evidence before the judge or this court that the property has been sold to a third party severing the Chans’ ties with the building.

31.3.  Secondly, the fact that the acts of assault and/or nuisance were not repeated after the undertakings were given to the court is neither here nor there.  There is no indication that the judge was asked to rule whether permanent undertakings would be sufficient in lieu of injunctive relief.

31.4.  As these were the only matters concerning the scope of the injunctive relief that were advanced before this court, it is not necessary to consider the relief further.

32. In respect of CACV187 (from HCA726), the persons who gave oral evidence at trial included Ms Tam, her baby’s nanny Madam Chan Tsui Jean, and the Chans.

33. Ms Tam’s oral evidence was that starting from November 2010 when she had just had a baby, loud thumping and radio and television sounds emanated at night from the Chans’ residence just one floor below her residence.  This evidence was corroborated by the nanny, who had left Ms Tam’s employ some three years before trial.

34. The oral evidence was corroborated by contemporaneous written evidence in the form of 18 complaints in the management company’s logbook, 16 of which had been made by Ms Tam or her husband.

35.1.   In respect of the 18 complaints, the police were called to the scene on five occasions.  The police officers who attended on the 2^nd, 3^rd and 4^th occasions considered the radio and television noise was at a “very low volume” or at a “reasonable level”.

35.2.  Mr Fong submitted that the judge erred in not considering the police findings.

35.3.  The judge was aware of the police findings as she had referred to it in para.29 of her judgment.  However she took the view that the Chans could not rely on them as they denied that they caused or allowed the noises to be made, and as Mr Chan had said during his evidence that he did not accept the contents of the reports to be accurate.

35.4.  Be that as it may, even if the judge should have taken the police reports into account, they were but one piece of evidence in the fact-finding exercise. Needless to say, the opinions of the individual police officers as to the level of noise were not binding on the judge who had to consider the entirety of the evidence.

35.5.  In my view it is important to note that the officers did not give evidence and they were not examined on their opinions as to what level of noise they considered to be “reasonable”.

35.6.  Such examination would have been important as on the 3^rd occasion, it was already past 2 am when the police officers attended, and on the 4^th occasion, it was already past 3 am.  One wonders why the police officers would have considered any radio or television noise to be “reasonable” at that time of night.

36.1.   Mr Fong also challenged the judge’s findings on the basis that Ms Comon said there had been noises at other times, and he submitted the thumping noises could not have caused nuisance to Ms Tam.

36.2.  The judge was entitled to prefer the evidence of Ms Tam and in particular the independent evidence of the nanny who testified that she and the baby had to move to another room, and that she suggested to Ms Tam that she (Ms Tam) should sue so as to stop the noises (para. 80, Judgment).

36.3.  In placing greater weight on these pieces of evidence and in rejecting the Chans’ evidence that they had not caused or allowed any noises, the judge was making primary findings on factual issues, and as explained by Lord Hoffman and Bokhary PJ in the authorities cited above, these are areas in which an appellate court should not intervene.

37.1.   Mr Fong also submitted that even if there were excessive noises, the judge was wrong to assume that they were caused by the Chans, as Mr Chan’s younger brother also stayed in the same premises, although not as often.

37.2.  However there was no alternative defence pleaded by the Chans that if (which was denied) there were excessive noises emanating from 34F on the 1^st floor, it was not they who caused them.

37.3.  Accordingly in my view, it was not necessary for the judge to have examined this aspect of the matter.

Order

38. For the reasons set out above, I dismissed both appeals with costs to be paid by the appellant(s) to the respondent(s) respectively.

Hon Poon J:

39. I agree.