李早珠 AND ANOTHER v. 施純禧

DCCJ 206/2020

[2022] HKDC 1451

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 206 OF 2020

________________

________________

___________________

DECISION

___________________

1.  This is an application for leave for Appeal by the defendant against the decision of this court dated 13 July 2021 (“the Decision”).

Background

2.  This is a case concerning noise disturbance and nuisance between neighbours and the plaintiffs seek various injunctions against the defendant. The details of the background have already been set out in the Decision and needed not be repeated here.

3.  In summary, in the Decision, the court found that there was regular service but the defendant failed to acknowledge service within the prescribed time (Order 13 Rule 6 of the Rules of the District Court, Cap. 336H) and after considering the discretion under Order 13 Rule 9, found that the defendant does not have “a real prospect of success” and therefore entered judgment and granted various injunctions sought.

4.  The defendant applied for leave to appeal on 27 July 2021 but did not set out any grounds for appeal. In view of the COVID situation, the court gave directions for parties to submit written submissions and for the matter to be dealt with by way of paper disposal.

The applicable law

5.  The applicable law is section 63A of District Court Ordinance Cap. 336 under which it is stated:

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

The grounds for appeal

6.  According to the Skeleton Submissions of the Defendant for Leave to Appeal (“the defendant’s submissions”) prepared by his counsel, Mr. Lai Ming (“Mr. Lai”), the grounds of appeal appeared to be that the court has erred in mixed law and facts (paragraph 11 of the defendant’s submission).

7.  However, Mr. Lai does not dispute on the application of law Order 19 rule 9 nor the test applicable to set aside a regular judgment (paragraph 13 of the defendant’s submissions). The grounds for appeal was really against the finding of facts of the court: that is, despite of the evidence produced in the Defendant’s Affirmation filed on 29 April 2021, the court has erred in finding that there was no real chance of success.

8.  In short, the main ground of appeal was against the court’s comment that “the defendant only made a general denial without substance (“空泛的否定”) against the allegations of the 1^st and 2^nd plaintiffs on noise” when the defendant has submitted various documents from HKHA, the Police etc. documenting that there were many complaints made by the plaintiffs but the various investigations done did not detect any noise. Therefore, these indicated that “the defendant could not possibly produce any noise or the complained nuisance” (paragraph 14 of the defendant’s submission).

9.  Mr. Lai then went on to suggest that somehow, the court was unaware that this general denial concerned only with the noise from his unit, and that the defendant had not denied the two convictions he had.

10.  However, paragraph 20 of the Decision stated, as I translate:

“However, the defendant, in his affirmation, only made a general denial without substance against the allegations raised by the 1^st and 2^nd plaintiffs. He did not provide any evidence to show why the noise could not have come from the defendant’s unit.”

11.  Firstly, the court is clearly aware that this denial only concerned with noise from the defendant’s unit. The court actually asked the defendant who had a chance to clarify this during the hearing, and this was accepted by the court (see paragraph 25 of the Decision).

12.  Secondly, Mr. Lai had clearly taken the “general denial without substance” comment out of context of paragraph 20 of the Decision: the sentence that follows explains the comment: the defendant did not provide any evidence to show why the noise could not have come from his unit. Indeed, the only evidence he ever provided was that noise was not detected by HKHA or the police after the numerous complaints were made.

13.  In other words, the court has in hand two affirmations (one from each plaintiff with minute details of the history and characters of the many incidents of disturbance as well as actions taken which cumulated in one conviction on 6 November 2019 of the defendant for public nuisance (on 15 March 2019 to early morning of the next day, between 11:24pm and 3:41am, repeatedly pressing the plaintiffs’ unit’s doorbell about 50 times and banging on the front metal gate etc.) and another conviction on 7 January 2020 for common assault of the 2^nd defendant.

14.  Against all these allegations, the defendant only stated in his affirmation (“本人沒有製造噪音”) or, as I translate “I personally did not produce any disturbing noise” (paragraphs 4, 5 of the defendant’s affirmation).

15.  This is clearly a bare denial.

16.  It is also entirely inadequate: as Mr. Lai rightly conceded, the defendant failed to give any evidence on his household condition (e.g. household routine and habits), in particular, who else lived in the defendant’s unit and whether they might be producing the disturbing noise.

17.  Further, as stated in the Decision, the defendant also failed to produce any evidence to support the belief (if indeed that was his belief) that such noise could not have come from his unit.

18.  Thus, the case that the defendant brought forward was that, despite numerous complaints, he was never caught making noises and disturbance against the plaintiffs (except on the two occasions which accumulated in the convictions). So according the defendant, although he had repeatedly pressed the door bell and banged the front gate of the plaintiffs’ unit disturbing them over some 4 hours in one night, and he had also assaulted the 2^nd plaintiff, he had never himself caused any disturbing noise to be produced from his unit.

19.  The plaintiffs stated the whole history of the incidents of disturbances which, inter alia, explained how difficult it was to catch the disturbances (e.g. the noises were randomly made or that “guerrilla tactics” were used when the security guards came round etc.), and the two convictions were part of the whole history.

20.  On the other hand, the defendant did not address any of the allegations except stating that “I personally did not produce any disturbing noise”. He made no mention of the convictions but now sought to argue that these convictions should be treated as somehow separate events without attempting to explain how they could have occurred without the previous history of disturbance as alleged by the plaintiffs.

21.  Mr. Lai then went to argue that the complaints of noise made by the plaintiffs were “improbable” being “round the clock”, “so powerful that internal facilities in the plaintiffs’ apartment were damaged”, that “soundwaves can only be unidirectional” and question why no other neighbours were complaining etc.

22.  In my view, these are new arguments bordering on expert opinion coming from the bench. It is entirely inappropriate.

23.  Mr. Lai then went on to attempt to give evidence regarding the household habits of the defendant. Not only that this is new and unsupported evidence, it is again evidence coming from the bench and is entirely inappropriate.

24.  On evaluation of all the evidence submitted by the parties, the court is entitled to make a decision as to whether the defendant has demonstrated a defence which has a real prospect of success.

25.  It is trite that an appeal on the finding of facts is not a chance for the party concerned to take another bite at the cherry simply because the party does not agree with the court’s decision. Instead, the threshold was a “formidable one”: the party needs to demonstrate that “(i) that there was no evidence to support the finding; or (ii) that it was contrary to documentary or other incontrovertible evidence which the judge overlooked” (see Rossington Investments Ltd v Lam Ping Kwong & Another [2002] 4 HKC 671) and, as such, the finding was “plainly wrong”.

26.  In my view, Mr. Lai has not demonstrated that.

Further considerations

27.  Furthermore, it not to say that even if the defendant is able to demonstrate a defence which has a real chance of success, he has an automatic entitlement to have the default judgment set aside. In exercising the discretion under Order 13 Rule 9, the court has regard to all relevant circumstances of the case. These other relevant factors will then have to be weighed against the dominant factor of the merit in order to see where the justice of the case lies (paragraph 13/9/13, Hong Kong Civil Procedure 2022)

28.  The Decision clearly stated the conduct of the defendant during the application: despite the court allowing two time extensions for the defendant to file and serve his affirmation in opposition (pending application for Legal Aid) until 27 October 2020, the defendant did not comply with the order. Even when Legal Aid was refused on 11 March 2021, the defendant did not file and serve his affirmation until one day before the hearing (29 April 2021), thus depriving the plaintiffs the chance to file and serve any affirmations in reply according to the direction of the court (paragraphs 9 to 13 of the Decision).

29.  Thus, there was a delay of some 6 months for the defendant to file and serve his affirmation, and this was for an application for default judgment for failure to file and serve an acknowledgement of service and defence.

30.  It was made clear in the Decision that under usual circumstances, the court could consider refusing to accept the defendant’s affirmation. The fact the court considered it at all was already an exercise of discretion in favour of the defendant (paragraphs 14 and 15 of the Decision).

31.  Another consideration is that the plaintiffs are only seeking injunctive relief against disturbing noises (paragraphs 27 i) a) and b) of the Decision, “injunctions a and b”); various inappropriate behaviours towards the plaintiffs (paragraphs 27 i) c) of the Decision, “injunction c”); and spraying of insecticides (paragraphs 27 i) d) of the Decision, “injunction d”).

32.  If the defendant’s position is that no disturbing noise has ever been produced from his unit by anyone living there and that he has never sprayed any insecticide into the plaintiffs’ unit as alleged (both of which he did not quite state as his case in his affirmation), then he should not have any concern nor hardship in complying with injunctions a and b, and injunction d. As for injunction c, the defendant is clearly not in a position to dispute given his previous two convictions.

33.  These are clearly relevant factors “to be weighed against the dominant factor of the merit in order to see where the justice of the case lies”.

Conclusion

34.  Taking all the relevant circumstances of the case, the court is not satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

35.  As such, the application must be dismissed with costs of the application be to the 1^st and 2^nd plaintiffs. If no agreement as to costs can be achieved, the plaintiffs shall lodge and serve a summary bill of costs within 28 days of this decision and the defendant shall lodge and serve a summary list of objections 28 days thereafter, with costs to be summarily assessed on paper. The 1^st and 2^nd plaintiffs’ own costs be taxed in accordance with the Legal Aid regulations.