HAU CHO SHING v. HAU CHI WING AND OTHERS

HCA 167/2016

[2018] HKCFI 686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 167 OF 2016

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D E C I S I O N

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THE APPLICATION

1.  This is the defendants’ application for those paragraphs of the Statement of Claim dated 19 January 2016 (“the Statement of Claim”) which relate to the cause of action based on easement be stuck out.  Although the defendants originally sought to have the entire Statement of Claim struck out, they no longer do so.  The part of their application relating to the cause of action of “Dedication and Acceptance” (as will be explained later) has been abandoned. The defendants further seek an order that paragraph 2 of the injunction order dated 29 January 2016 (“the Injunction Order”) be discharged. 

2.  At the end of the hearing on 12 February 2018, I requested parties to undertake further research on the interpretation of section 16 of the Conveyancing and Property Ordinance (Cap 219) (“C&PO”).  I subsequently on 21 February 2018 received some further authorities from the defendants.  I will return to them.

The background and the plaintiff’s claim

3.  Ping Kong Village (“the Village”) is situated at Sheung Shui.  Within it, amongst other lots of land, is Lot 53 in Demarcation District 91 (“Lot 53”).

4.  The plaintiff is an indigenous villager and the village representative of the Village.  He claims to have, pursuant to a tenancy agreement dated 31 December 2015 (“Lot 53 Tenancy Agreement”), become the tenant of a property on Lot 53 (“the Lot 53 Property”), and has thereby acquired an estate in Lot 53.  This is disputed by the defendants.  I will come back to this.

5.  Abutting the Village is the Remaining Portion of Taxlord Lot No 2333 in Demarcation District 91 (“RP 2333”).  The defendants are the registered owners in equal shares of RP 2333.  How the title to that lot devolved upon them will be an issue during the trial.  It is however not relevant here.

6.  The Village is served by Ping Kong Road (“the Road”).  The Road is the only vehicular link between the Village and (via Po Kin Road) Fan Kam Road.  Fan Kam Road is a major thoroughfare.  The Road is also used by pedestrians and cyclists.  A stretch of the Road between the Village and Po Kin Road is on RP 2333 (“the said Portion”), which is, as said, owned by the defendants.  This case involves a dispute between the plaintiff and the defendants over the right to use the said Portion.   

7.  What happened, according to the plaintiff’s case, was that on about 8 April 2015, the defendants erected or caused to be erected on the said Portion some metal poles and concrete bollards.  Vehicular access to and from the Village via the Road was thereby blocked.  The defendants also put up signposts in Chinese to the effect that except emergency vehicles, no vehicular access would be allowed unless with the owners’ consent. 

8.  On 19 January 2016, the plaintiff took out a Writ with the Statement of Claim indorsed.  Therein, the plaintiff avers, supported by other historical facts pleaded, that the villagers and the public have at all times since 1951 been using the Road and the said Portion as a pedestrian and the only vehicular access to and egress from the Village, and the said Portion as a space for vehicles going between the Village and the Road to maneuver U-turns (‘the User’). Two causes of actions are then pleaded, that:

(a)  a right of way over the said Portion has been acquired by villagers of the Village and members of the public through the doctrine of “dedication of acceptance” (“the Dedication and Acceptance Claim”); and

(b)  Lot 53 has an easement in the form of a pedestrian and vehicular access to and egress from the Road over the said Portion (“the Easement Claim”).

9.  The plaintiff seeks thereby:

(a)  basing upon the Dedication and Acceptance Claim, a declaration that the said Portion has since 1951 been dedicated to the public for use in the form of the User (paragraph (1) of the prayer);

(b)  basing upon the Easement Claim, “a declaration that [Lot 53] has an easement in the form of a pedestrian and vehicular access to and egress from [the Road] over the said Portion” (paragraph (2) of the prayer);

(c)  a prohibitory injunction restraining the defendants from blocking off vehicular traffic at the said Portion, and

(d)  a mandatory injunction for the removal of the metal poles and bollards.

10.  Specifically in relation to the Easement Claim, the plaintiff pleads that:

“ 9. Further and/or in the alternative [to the Dedication and Acceptance Claim]:

(1) The land lots in the Village including P’s Lot are dominant tenements and D’s Lot is a servient tenement in so far as the User over the said Portion is concerned.

(2) By virtue of S.4 of the New Territories (Renewable Government Leases) Ordinance Cap.152, on 1st July 1973 new Government Leases respectively of the land lots in the Village including P’s Lot and D’s Lot were deemed to have been granted for a term of 24 years less three days from 1st July 1973, subject to such rights as these land lots were subject to immediately before that date, including any public rights and any other rights, easements, tenancies or other burdens or encumbrances of whatsoever kind or nature.

(3) By virtue of Ss.6 and 7 of the New Territories Leases (Extension) Ordinance Cap.150, the said Government Lease respectively of the land lots in the Village including P’s Lot and D’s Lot was extended from 27th June 1997 to 30th June 2047, subject to the same encumbrances and interests as applied immediately before the period of extension including any public rights and any mutualcovenants, rights, easements, tenancies or other burdens of whatsoever kind or nature.

(4) The Plaintiff shall also rely on prescription as modified by the circumstances of Hong Kong as a ground for claiming easement in the form of the User over the said Portion of D’s Lot in that the government lessees of the land lots in the Village including P’s Lot have continuously since 1951 enjoyed openly and as of rightthe said User. In the premises an easement in the form of the User over the said Portion of D’s lot had been acquired by way of a lost modern grant.

10.    The Defendants are estopped from denying the dedication aforesaid, the User and the easement.”

11.  On the same day when the plaintiff took out the Writ, he also took out an inter partes summons for an interlocutory injunction in term of the injunctive relief sought (“P’s Injunction Summons”).  Affirmations were filed in support and opposition.  On 29 January 2016, after a contestedhearing, the application was granted.  Paragraph 1 of the Injunction Orderrequired the defendants to forthwith dismantle and remove the metal polesand concrete bollards on the said Portion.  That has since been done, thoughnot without some further complications, which complications are howevernot relevant for the present purpose.  Paragraph 2 of the Injunction Order, which has since then been continuing, reads as follows:

“ IT IS ORDERED that (2) the 1^st, 2^nd and 3^rd Defendant be restrained, whether by themselves acting singly or jointly or through their employees, agents or servants or otherwise howsoever from closing, blocking, obstructing, hindering, restricting, preventing or interfering with the said User at all times and for all purposes whether by means of erecting or placing metal poles and/or concrete bollards thereat and/or by any other means.”

The defendants’ summons

12.  On 16 August 2017, the defendants took out the present summons (“the present Summons”).  They seek thereby:

(a)  an order that the entire Statement of Claim be stuck out on the grounds that it (i) discloses no reasonable cause of action, (ii) it is frivolous and/or vexatious; and/or (iii) it is otherwise an abuse of process of the court.  They now no longer do so.  Mr Liu, counsel for the defendants, has in his written submissions confirmed that the defendants’ “latest position” is that only those parts of the Statement of Claim relating to the Easement Claim should be struck out.  This Court is now no longer concerned with the Dedication and Acceptance Claim, and the striking-out application is confined principally to paragraph 9 of the Statement of Claim[1];

(b)  an order that paragraph 2 of the Injunction Order be discharged.

13.  I will consider the application to strike out first.

THE APPLICATION TO STRIKE OUT

Applicable principles

14.  Mr Liu has cited to me a number of authorities on the principles relevant to the exercise of the Court’s powers upon an application for striking out[2].  They were distilled from paragraphs 18/19/4 to 18/19/9 of Hong Kong Civil Procedure 2018 Volume 1.  They were not disputed by the defendants.  I recite some of them as follows:

(a)   “ It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ… There should be no trial upon affidavit.  Disputed facts were to be taken in favour of the party sought to be struck out.  Nor should the court decide difficult points of law in striking out proceedings.  The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.  If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable causeof action or that the proceedings are frivolous or vexatious, then, there should be no striking out. …”    (paragraph 18/19/4)

(b)   “ A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered …”    (paragraph 18/19/5)

(c)   “ No evidence is admissible on [an application to strike out as disclosing no reasonable cause of action]: the court simply looks at the statement of claim and determines whether, on the assumption that the facts pleaded in it are true, the plaintiff has a cause of action in law (see O.18, r.19(2)).”  (Polytechnic University v Next Magazine Publishing Ltd [1996] 2 HKLR 260, at 263H)

(d)   “ A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possible succeed.  A proceeding is vexatious when it is oppressive and/or lacks bona fides.”                             (paragraph 18/19/7)

(e)   “ The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material.”                                                                         (paragraph 18/19/9)

The Easement Cause of Action—whether a reasonable cause of action

15.  Mr Liu’s submission that the Easement Claim discloses no reasonable cause of action runs in gist as follows.  On the plaintiff’s own case, he became a tenant of the Lot 53 Property only on 31 December 2015.  That was more than eight months after the defendants had erected the metalpoles and concrete bollards on the said Portion.  Hence, by the time of theLot 53 Tenancy Agreement, whatever easement over the said Portion which the plaintiff’s landlords had been enjoying before 8 April 2015, they were no longer enjoying it.  As a landlord cannot give his tenant a title better than he has, and upon a proper interpretation of the New Territories (Renewable Government Leases) Ordinance (Cap 152) (“Cap 152”), the New Territories Leases (Extension) Ordinance (Cap 150) (“Cap 150”), andsection 16 of the C&PO, “it is clear that the easement in question could not have been granted at the assignment, nor was it capable of being granted.  The alleged easement was not in fact enjoyed by P’s Landlords immediately prior to the Tenancy Agreement and thus no such easement can pass to P” ‌—paragraph 32 of Mr Liu’s submissions.

16.  Central to Mr Liu’s submissions is the proposition that undersection 16 of the C&PO, only those rights, privileges etc which are enjoyed with the land “at the time of the assignment” can be passed by operation of that section.

17.  Mr Cheung, counsel for the plaintiff, submits that there is in law nine ways in which easements can be acquired.  He relies onChina Field Ltd v Appeal Tribunal (Buildings) (2009) 12 HKCFAR 342 and Hong Kong Land Law by Sarah Nield, 2^nd edition at para 13.3.  Whilst some of those ways are not applicable in Hong Kong, “lost of modern grant” [3]and the rule in Wheeldon v Burrows (1879) 12 Ch D 31 in conjunction with Cap 152 and Cap 150 [4] are, and they have been specifically pleaded in paragraph 9 of the Statement of Claim.  He further submits, upon the premise that the User has been acquired at some stage prior to 8 April 2015, the User would have been annexed and attached to Lot 53, and what the defendants unilaterally did on about 8 April 2015 could not have the effect of extinguishing the User.  Viewed in such a way, the plaintiff’s case is good in law, and there is no need for him to rely on section 16 of the C&PO.   

18.  Mr Liu’s submission on this limb of his application is indeed anarrow one.  For the purpose of this application, he does not challenge the part of the plaintiff’s pleaded case that the User had been acquired as an easement.  In any event, he cannot.  This being an application for strikingout, disputed facts are to be taken in favour of the party sought to be struck out.  Mr Liu submits rather, as clarified in his supplemental submissions, that Cap 152 and Cap 150 govern only the relationship between the Government and the lessees deriving title from the Government, that all subsequent assignments between those lessees and their assignees must be governed by section 16 of the C&PO, and that given what his clients did on about 8 April 2015, the easement was no longer being enjoyed when the Lot 53 Tenancy Agreement was signed in December 2015, and the plaintiff therefore could not have benefited from or sued on the User. 

Section 16 of the C&PO

19.  Section 16 of the C&PO stipulates as follows (the rearrangement and those words in brackets are mine to facilitate discussion and understanding):

“ Unless the contrary intention is expressed in the assignment, an assignment shall operate to assign, with the land,

• all rights, interests, privileges, easements or appurtenances (“rights and privileges”)

○ in, over, belonging or appertaining to that land (“Limb #1”)

or

○ at the time of the assignment used, held, occupied or enjoyed with that land (“Limb #2”) and

• things attached to the land or permanently fastened to anything attached to the land.”

20.  The plain language of section 16 suggests that it governs the deemed assignment of two different types of rights and privileges: (i) all rights, interests, privileges, easements or appurtenances in, over, belonging or appertaining to that land (“Limb #1”), and (ii) all rights, interests, privileges, easements or appurtenances at the time of the assignment used, held, occupied or enjoyed with that land (“Limb #2”).  If this distinction between Limb #1 and Limb #2 is a valid one, the requirement that the rights and privileges have to be enjoyed “at the time of the assignment” is applicable only to those rights and privileges under Limb #2.

21.  I refer to The Hong Kong Conveyancing and Property Ordinance by Sarah Nield(1988), where the learned author at pages 66 to 67 discusses those two Limbs within section 16:

(a)  Under Limb #1, the learned author comments that:

“ To fall within the subsection, the right must be capable of existing as an easement … and not be merely a personal or temporary right.

The right need not be enjoyed as an easement but may be enjoyed by permission of the servient owner…

The right must be appurtenant to the land but it need not be appurtenant to the particular estate in the land assigned…”

(b)  The above should be contrasted with the comments the learned author makes in respect of Limb #2, that:

“The subsection originally did not require the rights to be enjoyed at the time of the assignment provided they had at some time been enjoyed. Thus it was possible for extinguished rights to be revived. However, because of the uncertainty that such a revival could cause, the 1988 amendments to the Ordinance brought the subsection in line with section 62 of the Law of Property Act 1925 and the right must now be enjoyed at the time of the assignment.

The time of the assignment is the date of the instrument itself, notwithstanding that the purchaser may have gone into possession of, or, where a lease is granted, the term commenced before the date of the assignment …. The change in wording enables a vendor to prevent a permissive right passing by expressly terminating the right immediately prior to the assignment.”       (Emphasis supplied)

22.  Section 16 of our C&PO follows the wording of the corresponding provisions in section 6 of the Conveyancing Act 1881 (subsequently evolved into section 62 of the Law of Property Act 1925).  In International Tea Stores Company v Hobbs [1903] 2 Ch 165, Farwell J had before him a right of way which use was wholly permissive.  He analyzed that the right of way must have been either licensed or unlicensed.  In either case, it was precarious in nature.  He observed, at page 171 that:

“ … in my opinion, precariousness has nothing to do with this sort of case, where a privilege which is by its nature known to the law—namely a right of way—has been in fact enjoyed.”

In the end, Farwell J held that despite the permissive and precarious nature of that right of way, it passed under the section 6 of the Conveyancing Act 1881.

23.  Noting that the authorities cited before me were not specific inaddressing the distinction between Limb #1 and Limb #2, I towards the end of the hearing on 12 February 2018 requested parties to undertake further research on the issue.  I subsequently on 21 February 2018 received some further authorities from Mr Liu.  I was informed that despite efforts, no further materials could be found which shed direct light on the issue.  I however find, among the further materials brought to my attention, the additional case of Silver Carnival Limited v Longbase Investments Limited(unreported, CACV 339/2004, 14 June 2005) relevant.  In that case, Rogers VP observed at paragraph 14 of the judgment that:

“ The wording of this section follows the wording of the corresponding provisions in the Conveyancing Acts commencingwith the Conveyancing Act 1881. As explained in, for example, Williams on Vendor and Purchaser, Third Edition, p. 599–600, prior to 1882 it was the practice in drawing up conveyances of land to add to the description of the property a number of general words comprehending all easements, rights, privileges or advantages appertaining or reputed to appertain to the land or therewith used and enjoyed. Since the coming into force of the Conveyancing Act 1881 it had been the practice to omit the general words from conveyances. The equivalent sections in theConveyancing Acts have been held to apply to ‘rights’ which wereentirely permissive and precarious at the date of the grant: see, for example, International Tea Stores Co. v Hobbs [1903] 2 Ch 165. As Neville J pointed out in Lewis v Meredith [1913] 1 Ch 571 at page 579, even though an easement or right might not be an easement or right in the strict sense because, for example, there was common ownership which might preclude the acquisition of any right or easement by the occupier, it could still be a quasi right which was enjoyed.”         (Emphasis added)

24.  Given the nature of the application before me, there is no necessity for me to reach a definitive ruling on the effect of section 16 of the C&PO.  However, in the light of the discussion and authorities considered above, I find that it is clearly arguable that section 16 is concerned with the deemed assignment of two different types of rights andprivileges. In respect of those which are appurtenant to the land (Limb #1),the added requirement that they are enjoyed “at the time of the assignment”is not applicable.  They pass with the assignment, despite any attempt on the part of the assignor to prevent their enjoyment immediately before the assignment. That added condition is only required when it comes to those lesser rights or privileges which are not appurtenant to the land (Limb #2), but are, for example, quasi rights, or are otherwise merely permissive and precarious.  This interpretation makes very good sense to me.  Further, ifit were otherwise, an assignor of an assignment would be at liberty in effectto unilaterally prevent the passing of, for example, acquired easement rights appurtenant to the land concerned, despite not having any lawful right to extinguish the same.  This cannot be correct.

Application for the law

25.  In his written submissions, and in the context of the operationof section 16 of the C&PO, Mr Liu does not draw any distinction between the two types of rights and privileges discussed above.  His argument ignores and overlooks the scenario of the User having been acquired prior to 8 April 2015.  His challenge is made purely on the basis that the defendants on about 8 April 2015 blocked off vehicular traffic at the said Portion.  But it is clearly arguable, based on my view of the law above, that if the User had been acquired before 8 April 2015 (whether based on “lost of modern grant”, the rule in Wheeldon v Burrows, or otherwise), thesame would have been appurtenant to Lot 53, and the defendants’ unilateralacts of erecting metal poles on the said Portion could not as a matter of law extinguish the User, and further could not have prevented the subsequent passing of that User rights to the plaintiff pursuant to the Lot 53 Tenancy Agreement.  The added condition of enjoyment “at the time of the assignment” would have no application. 

26.  By reason of the above, the defendants’ application on the basis that the Easement Claim discloses no reasonable cause of action must fail. 

The Easement Cause of Action—whether frivolous, vexatious and abuse of process

27.  Mr Liu in his written submissions deals with the balance of the defendants’ striking out application together.  I will do the same.

28.  Mr Liu firstly repeats his submission that the Easement Claim discloses no reasonable cause of action and is doomed to failed.   He submits that the Easement Claim is therefore on this basis frivolous.  For the same reasons as I have set out above, this sub-limb of the defendants’ application must also fail.

29.  Mr Liu then submits that the Lot 53 Tenancy Agreement was in fact not in law a lease. There was another occupant at the Lot 53 Property.  The plaintiff was at most a licensee.  He does not therefore have sufficient interest to sue.  The Easement Claim is therefore frivolous.  From there, Mr Liu goes further and submits as follows: the plaintiff was seldom at the Lot 53 Property; he did not have the habit of driving; he wasnot inconvenienced by the erection of metal poles and concrete bollards atthe said Portion; the terms of the Lot 53 Tenancy Agreement were “dubious,illogical and commercially unsound”; the Lot 53 Tenancy Agreement “couldnot have been a genuine transaction between P and his landlords”; and that “P was acting in collusion with his landlords to sign the Tenancy Agreement in order to gain or create the necessary ‘locus’ or ‘interest’ to sue, which P would not otherwise have had”.  The Easement Claim is therefore, Mr Liu submits, an abuse of process and is liable to be struck out.

30.  Mr Cheung submits on behalf of the plaintiff that in the light of the nature of the application, it is not for the Court to resolve the many factual issues involved.  He further submits that “if P has exclusive possession to the part of the house where he stores his belongings, there is still exclusive possession”.  On that point, he raises the alternative argument that even if the plaintiff were a mere contractual licencee (as opposed to a tenant), he would still be entitled to use the Road via the said Portion, and he would still be entitled to sue.  He relies in this regard on paragraph 9-89 of Gale on Easements 20^th Edition, that:

“When the grant is in general terms, and there are no circumstancessubsisting at the date of the grant, and nothing in the grant itself, sufficient to point in an opposite direction, a way may be used, with the authority of the person entitled to possession of the dominant tenement, by anyone whose user is not inconsistent with the quantity and purpose of user envisaged by the grant.”

The evidence

31.  I first of all summarize the evidence which Mr Liu seeks to rely on.  On 16 August 2017, the 3^rd defendant filed his 2^nd affirmation insupport of the present Summons.  He described therein that on 12 July 2017 he chanced upon a Mr Tsang Wai Ping (“Mr Tsang”) inside the Lot 53 Property.  Mr Tsang was not willing to be a witness.  The 3^rd defendant reproduced in the affirmation what Mr Tsang allegedly told him on that occasion.  In gist, he said that Mr Tsang had told him that he was a renovation worker and had been renting the Lot 53 Property from his landlord Hou Kin Hing since about early 2015.  There was no written agreement.  He used it for storage purposes.  He had never seen the plaintiff appearing at the property (paragraphs 7 – 12).  The 3^rd defendant said that he was able to watch the footages of the CCTV installed outside the Lot 53 Property and found that whilst Mr Tsang always appeared at the property, the plaintiff had never done so (paragraph 13).  He said that the plaintiff had not in fact rented or occupied the Lot 53 property, that the plaintiff’s evidence that he had was untrue (paragraph 14), and that there was malicious intention on the part of the plaintiff in commencing these proceedings (paragraph 16).  He further pointed out that the plaintiff had been “extreme close” with his landlords (paragraph 17), and that:

“ 18. In light of the extremely close relationship between Hau Tim Hing and the Plaintiff, and the proximity between thedate of the Alleged Tenancy Agreement and the date of the Writ/ Summons for Injunction, I verily believe that the two of themwere acting in collusion in order to ‘create’ the necessary locusfor the Plaintiff to commence these proceedings (as the Plaintiff would otherwise have no locus to sue).

19. In fact, since the Poles were removed and the public began to have vehicular access in the Village, the Plaintiff has not driven any vehicle in and out of the Village at all. This is because: (i) he does not actually have a habit of driving; and (ii) he is not the real tenant of the said Unit and does not actuallyoccupy and travel to and from the said Unit at all. This can be confirmed by many other residents of the Village.

20. This buttress my observation above that the Plaintiff did not bring the proceedings bona fide, nor has he ever suffered any inconvenience from not being able to drive in the Village.  His claim for damages and injunctive relief prayed for in the SOC is most irrelevant and frivolous.”

32.  In his 4^th affirmation in reply of 26 September 2017, the plaintiff confirmed that he was a tenant to the Lot 53 Property, and that a copy of the Lot 53 Tenancy Agreement had been produced in his 1^st affirmation. He said that he first orally rented it from the three registered owners (Hau Kin Hing, Hau Tim Hing and Hau Wai Shing) in about late 2013.  He used it for storage and the items would only occupy part of the Lot 53 Property.  He said that Hau Kin Hing told him that he or his brothers might later also allow other people to store things there in return for rental payment.  He agreed to the arrangement.  In about 2015, he discovered other items inside the property.  Upon his enquiry with Hau Kin Hing, the latter confirmed that a friend of his had also rented the Lot 53 Property for the purpose of storage.  The plaintiff said that until about 23 August 2017, he had never met the other tenant, and it was only upon reading the 3^rd defendant’s 2^nd affirmation that he learnt, for the first time, the name of that other tenant.  

33.  On 26 September 2017, Hau Tim Hing also filed an affirmation.  He was one of the three registered owners of Lot 53.  He was also one of the signatories on the Lot 53 Tenancy Agreement as the landlord.  He confirmed and supported the version of events given by the plaintiff in his 4^th affirmation.

Whether exclusive possession

34.  The significant of the concept of exclusive possession to a lease is trite.  There is no need for me to deal with the number of authorities Mr Liu has cited to me on this point, save reciting paragraph 17-013 of Megarry & Wade: The Law of Real Property 8^th Edition, that:

“ It had always been of the essence of a lease that the tenant should be given the right to exclusive possession, that is the right to exclude all other persons, including the landlord, from the premises.”

35.  However, the mere fact that there is shared accommodation does not necessarily mean that there is no lease.  I refer to paragraphs 17-021 to 022 of Megarry & Wade, that:

“ Where there is single occupancy of residential accommodation,it is comparatively straightforward question of fact whether or not the occupier has exclusive possession of the property. Where two or more persons share accommodation, the issues are more complex. ‘It is not simply that the court has to interpret against their respective backgrounds two or more documents rather than one. It must also take into account the possibility that the documents are linked’. There are at least three conclusions at which the court may arrive:

(i) The occupants are joint tenants, being collectively entitledto exclusive possession of the property as a whole. This will only be the case where the requirements for a joint tenancy are satisfied so that there is unity of interest, title and possession between the occupants.

(ii) Although the occupants are not joint tenants of the whole property, each occupant is a tenant of a particular part of the property of which they have exclusive possession, such as a bed room.

(iii) The parties are neither joint tenants of the shared property(because one or more of the four unities is absent) nor do they have exclusive possession of any defined area. In such circumstances, they will be merely licensees. Indeed, the landlord is not excluded from the property because he continues to enjoy possession of it through the other licensees whom he has permitted to occupy the premises. This third construction will often be appropriate ‘given the informality of may sharing situations, and the obviouscontemplation that they may terminate earlier than expected.

Although these three situation are theoretically distinct, it can be difficult to distinguish them in practice, particularly where two or more persons simultaneously enter into separate, albeit identical agreements for the occupation of a flat, and each is severally liable for his share of the rent.  In making its determination, the court will have to decide whether any of the terms are to be disregarded because they are a sham and it will be required to construe the relevant written agreements having regard to the surrounding circumstances ‘including any relationship between the prospective occupiers, the course of negotiations and the nature and extent of the accommodation and the intended and actual mode of occupation of the accommodation.”

Consideration of the evidence

36.  The nature of the Lot 53 Tenancy Agreement is in dispute.  I note that Mr Tsang has not even filed any affirmation in the proceedings.  I cannot rule on the matter.  Indeed, given the nature of the present Summons, it would be wrong for the Court to even try to do so at this stage. 

37.  But then Mr Liu submits that it was not disputed that there wasanother occupier/tenant there, who the plaintiff did not know.  He also, relying on several photographs showing the interior of the Lot 53 Property,submits that there was no partition inside.  He urges me to conclude on that basis that the plaintiff had no exclusive possession of the Lot 53 Property and therefore had no title to sue.

38.  I am not prepared to do that.  As is obvious from the passagesfrom Megarry & Wade cited above, the issues of share accommodation can be complex, the different possible scenarios can be difficult to distinguish in practice, and the decision process will entail a detailed consideration of all the surrounding circumstances.  Any attempt to do so would be akin to (if not worse than) conducting a mini-trial on affirmatory evidence, which the Court will not undertake for the purpose of an application for striking out. 

39.  On this point, I am in any event of the view, on the strength ofparagraph 9-89 of Gales on Easements cited above, that even if the plaintiffwere a mere contractual licensee, it remains arguable that he would still be entitled to enjoy the User, and that he could still have sufficient interest to sue.

40.  I have further considered Mr Liu’s submission on the issue of abuse.  Issues like whether the Lot 53 Tenancy Agreement was a sham, whether there was any malicious intention on the part of the plaintiff in commencing the proceedings, whether there had been any collusion between the plaintiff and his landlords, whether he went back often to the Lot 53 Property, whether he had the habit of driving, the reliability of the CCTV footages which the defendants had viewed, etc are way beyond those matters which the Court can legitimately consider and decide in an application for striking out.  The limb of the application on the basis that the Easement Claim constitutes an abuse of process ought also to be dismissed.

Conclusion on striking out

41.  By reason of the above, the defendants’ application to strike out the Easement Claim is dismissed.

DISCHARGE OF PARAGRAPH 2 OF THE INJUNCTION ORDER

42.  Mr Liu submits that paragraph 2 of the Injunction Order “ought to be discharged” on the grounds of:

(a)  the plaintiff’s unclean hands;

(b)  new facts coming to light; and/or

(c)  the plaintiff’s delay in bringing the claim to trail after the Injunction Order.

Discharge—Unclean hands/new facts coming to light

43.  The first two grounds are related and can be considered together.  The crux of the complaint is that the plaintiff failed to reveal to the Court when applying for the Injunction Order the then known fact that he had been “co-renting” the Lot 53 Property with Mr Tsang.

The applicable legal principles

44.  The Court may refuse to grant interlocutory relief, or set it aside if granted, if the applicant has not come to the Court with clean hands — Macau First Universal International Ltd v Ding Xiaohong (No 2) [2012] 2 HKLRD 494, at paragraph 28.

45.  But what grime on the hands would cause an equitable remedyto be refused?  That was considered by Lord Scott at paragraph 90 of Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024, that:

“ … the grant of an injunction is the grant of an equitable remedy and it is long-established practice that an equitable remedy should not be granted to an applicant who does not come before the court with ‘clean hands’. The grime on the hands must, of course, be sufficiently closely connected with the equitable remedy that is sought in order for an applicant to be denied a remedy to which he ordinarily would be entitled. And whetherthere is or is not a sufficiently close connection must depend on the facts of each case.”

46.  Also relevant to that issue is Poon Ka Man Jason v Cheng Wai Tao & Others (unreported, CACV 135/2013, 21 January 2015), where Cheung JA observed that:

“ 6.7.1) The principle is that in order for the inequitable conduct to bar any claim for equitable relief, the conduct must be legally attributable to the claimant (Royal Bank of Scotland v Highland Financial Partners [2013] 1 CLC 596 at 642C–D, per Aikens LJ). …

6.7.2) Related to the first point is that in order for the misconduct to give rise to a bar to equitable relief, the misconduct must have an immediate and necessary relation to the relief sought so that it would be unjust to grant that particular relief. Scrutton LJ in Moody v. Cox [1917] 2 Ch 71 reviewed the authorities at pages 87 to 88 and stated :

‘ … equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for.’”

Consideration of the facts

47.  I have carefully considered the submissions and the evidence.  I state my observations and findings as follows:

(a)  The Dedication and Acceptance Claim and Easement Claim are two distinct causes of action.  The complaint about the plaintiff’s title to and interest in the Lot 53 Property has nothing to do with the Dedication and Acceptance Claim. Despite the present Summons, the defendants are no longer seeking to challenge the Dedication and Acceptance Claim. The Dedication and Acceptance Claim could have, by itself, provided the legal basis for the Court to grant the Injunction Order.  Conceptually, the Court could grant the Declaration sought under this claim (paragraph (1) of the prayer), refuse the Declaration sought under the Easement Claim (paragraph (2) of the prayer), and then proceed nonetheless to grant the injunctive relief.  The alleged dirt or grime in the plaintiff’s hands has no direct connection with the equity sued under the Dedication and Acceptance Claim.

(b)  In any event, I am not satisfied that the evidence at this stage is sufficient to establish any dirt in the plaintiff’s hands whichjustifies discharge of the Injunction Order.  The exact natureof the plaintiff’s interest under the Lot 53 Tenancy Agreementis subject to competing evidence.  His version is supported by Hau Tim Hing, one of the three registered owners of the lot.  Mr Tsang has filed no affirmation.The allegation of maliciousor collusion were nothing more than bare (and verging on wild)assertions by the 3^rd defendant.  The legal implications of theexistence of a co-tenant (ie Mr Tsang) are subject to different interpretation, which cannot be decided upon until after all the circumstances have been carefully considered;

(c)  For these reasons, I reject the first two grounds.

Discharge—Delay

48.  I now consider the third ground raised in support of the defendants’ application for discharge—delay.

The legal principles

49.  Mr Liu has brought to my attention Newsgoup Newspapers Limited v The Mirror Group Newspapers (1986) Limited [1991] FSR 487, where Hoffmann J observed at page 489 that:

“ … An interlocutory injunction is an order which restricts a defendant’s liberty at a time when there has been no finding of wrongdoing by the court. It is done in order to preserve the position, pending a determination of the merits, in cases when the court thinks that justice so requires. In my judgment it is incumbent upon a plaintiff whose position has been protected in that way by an interlocutory injunction to proceed with the action with due diligence so as to limit as far as possible the period during which the defendant’s liberty is restricted without there having been any determination of the merits. In Lloyds Bowmaker Limited v. Britannia Arrow Holdings plc [1988] 1 W.L.R. 1337 Glidewell L.J. said (at page 1347) in relation to a Mareva injunction that a plaintiff who has succeeded in obtaining such an injunction is ‘in my view under an obligation to press on with his action as rapidly as he can so that if he should fail to establish liability in the defendant the disadvantage which the injunction imposes upon the defendant will be lessened so far as possible.’

     Dillon L.J. (at page 1349) said ‘where a party has obtained a Mareva injunction, that party is bound to get on with the trial of the action—not to rest content with the injunction.  The injunction is merely ancillary to the trial of the action to hold the position until the action comes on for trial.”

Mr Cheung did not dispute the same.

Consideration of the evidence

50.  In the present case, the Writ indorsed with the Statement of Claim was issued on 19 January 2016.  The Injunction Order was granted inter partes on 29 January 2016.  On 3 February 2016, the plaintiff took out another summons to enforce the Injunction Order.  On the same day, the metal poles and concrete bollards were removed.  The Defence was only filed on 10 June 2016 after an unless order had been issued (which setthe deadline of 10 June 2016).  The plaintiff filed his Reply on 7 July 2016,and his List of Documents on 13 July 2016.  The defendants however did not file theirs until almost a year later on 3 July 2017.  In the meantime, the defendants took out a Case Management Summons on 7 April 2017.  On 16 August 2017, the present Summons was filed.

51.  The brief chronology which I have set out above shows quite clearly that there has been delay on the part of the defendants also.  Despite that, Mr Liu complains as follows:

“ 70. P on 13^th July 2016 filed his List of Documents. While Ds accept that Ds did not file their List of Documents then, no action was taken on part of P either.

71. It was until 7^th April 2017 then Ds took the initiative to file a Case Management Summons to seek various filing directions and put the house in order. This, Ds submit, shouldhave been done by P as he is the party in the driver’s seat insofar as these proceedings are concerned.

72. The delay is even more inexcusable when the Injunction Order would in fact have the effect of finally disposing of the action altogether.”

52.  In reply, Mr Cheung submits that the allegation that there has been delay on the plaintiff’s part is untrue. He points out that it was the defendants who had caused delay, and that in the Defence, the defendants dispute almost all material parts of the plaintiff’s claim.  The entire history of the Road and the development of the vicinity has been called into question.  He further submits that in the circumstances, a land surveying expert is required, whose engagement requires approval from the Legal Aid Department, and that the approval has taken some time to process.

53.  Given Mr Cheung’s submissions, I during the hearing on 12 February 2018 directed the plaintiff to, without prejudice to any legal profession privilege, disclose to the defendants relevant correspondence which the plaintiff’s legal advisers have had with the Legal Aid Department on the issue.  That has been done.  I have viewed the correspondence.  Steps were in fact being taken, primarily between January 2017 and September 2017, to obtain the Legal Aid Department’s approval to engagean expert.  There was also correspondence between the parties’ respective legal advisers on the same issue.  In the circumstances, I am not satisfied that the plaintiff has not been prosecuting the case with due diligence. 

54.  On the issue of discharge, I have also considered the question of balance of convenience.  Whilst the defendants dispute the timing of the erection of the concrete bollards, they do not dispute that on about 8 April 2015, they erected or caused the metal poles to be erected on the said Portion.  They do not dispute that those metal poles blocked off vehicular traffic. The say that the blockage was however not substantial.  They further say that the reason of doing what they did was to stop illegal parking on their land.

55.  On the other hand, the erection of metal poles on the said Portion inconvenienced a large number of villagers from the Village.  According to the plaintiff’s 1^st affirmation, some 600 villagers were affected.  A total of 351 villagers also signed on a letter of 10 April 2015 to the DistrictOfficer North by way of protest and petition.  Drainage works undertaken by the Drainage Services Department were affected.  Sewage services provided by the Food and Environmental Hygiene Department to public toilets within the Village were affected.  Importantly, police cars, ambulances and fire services vehicles could also have been delayed.

56.  On the issue of balance of convenience, the balance tips clearly in favor of continuing the second paragraph of the Injunction Order.

Conclusion on the application for discharge

57.  Having carefully considered all the evidence, authorities and submissions, and having weighed the relevant countervailing factors, I have decided that the application for discharge of paragraph 2 of the Injunction Order ought to be dismissed.

COSTS

58.  At the end of the hearing, I indicated that I will invite submissions before making any order for costs.  I direct that the plaintiff should file and serve his submissions on costs within 10 days from the date hereof, and the defendants within 10 days thereafter upon receipt.