THE INCORPRATED OWNERS OF MARINA GARDEN AND ANOTHER v. TAI KAM CHUEN

HCA 997/2018

[2019] HKCFI 1637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 997 OF 2018

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D E C I S I O N

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INTROUCTION

1.  The 1^st plaintiff (“the IO”) is the incorporated owners of Marina Garden, an estate in Tuen Mun (“the Estate”). The 2^nd plaintiff is the manager of the Estate (“the Manager”). The defendant is an occupant of a unit in the estate (“the Unit”). He is living in the Unit together with his family members. The Unit is owned by his parents.

2.  On 2 May 2018, the plaintiffs commenced these proceedings against the defendant by issuing the writ of summons with a statement of claim annexed thereto. On 24 May 2018, the defendant filed the notice of intention to defend. On 21 June 2018, the defendant filed his defence.

3.  On 21 November 2018, the plaintiffs took out a summons (“the summons”) under the Rules of the High Court, Order 14 rule 1, for final judgment in this action against the defendant in the following terms:

(1)   An injunction restraining the defendant, whether by himself or his servants or agents, from doing, procuring, causing, authorizing or permitting any of the following acts:

(a) threatening, harassing, intimidating, causing disturbance and/or interference to the IO and/or the Manager and/or the committee members of the IO and/or staff of the Manager and/or person inside the management office in the estate (“the Management Office”) and other owners and/or occupants of the estate, including shouting or speaking obscenities or foul language towards such persons, in contravention of Clause I(1) of the First Schedule (“First Schedule, Clause I(1)”) and Clause 5 of the Third Schedule (“Third Schedule, Clause 5”) to the deed of mutual covenant of the estate (“the DMC”);

(b) entering the Management Office;

(c) going within a reasonable distance as the court shall think fit from the entrance of the Management Office; and

(d) communicating with the committee members of the IO and/or staff of the Manager with the intent to do any act restrained of, be it in writing or orally.

(2)   Damages to be assessed;

(3)   Interest; and

(4)   Costs.

4.  The summons is supported by the Affirmation of Kwok Lai Fun (“Kwok”) filed on 22 November 2018 (“the supporting affirmation”). Kwok is the secretary of the Management Committee of the IO.

5.  On 11 January 2019, the defendant filed his affirmation in opposition to the summons.

6.  On 29 January 2019, the plaintiffs filed Kwok’s 2^nd Affirmation in reply to the defendant’s affirmation.

THE PARTIES’ RESPECTIVE CASES

7.  The plaintiffs’ case, in gist, is that the defendant has committed acts of assault, intimidation, harassment against the committee members of the IO and the staff of the Manager since January 2017[1]. They have pleaded 15 specific incidents and some further incidents in the statement of claim:

(1)  20 January 2017 incident

On 20 January 2017, the defendant went to the Management Office and made a complaint that there was cement blockage in or around the Unit. 3 staff members went to the Unit to check. At or around the entrance to the Unit, the defendant assaulted one staff member and used a cutter to threaten the other two staff members.

(2)  9 May 2017 incident

On 9 May 2017, the defendant went to the Management Office to request the staff members of the Manager, a Mr Lau (“Lau”) and a Mr Lo (“Lo”), to remove certain notice containing his name and address. The defendant shouted at the staff members and spoke foul language to those staff members.

(3)  27 June 2017 incident

On 27 June 2017, the defendant went to the Management Office to find a staff member, but that staff member was not in the office at that time. The defendant then hit the glass partition at the reception area numerous times and shouted at the staff in the office, using foul language.

(4)  28 June 2017 incident

On 28 June 2017, the defendant assaulted Lau inside the Management Office. In relation to this incident, the defendant was convicted of common assault in the Tuen Mun Magistrates’ Court on 10 August 2017.

(5)  30 June 2017 incident

On 30 June 2017, the defendant made two phone calls to Lo, in which the defendant made threats against the committee members of the IO.

(6)  4 July 2017 incident

On 4 July 2017, the defendant made a phone call to Lo, in which the defendant made threats against the committee members of the IO.

(7)  5 July 2017 incident

On 5 July 2017, the defendant made a report to the police by phone, making accusations against the committee members of the IO and staff of the Manager. Thereafter, the defendant attended the outdoor podium area (“the OPA”) close to the entrance to the Management Office and spoke foul language to scold the committee members of the IO and the staff of the Manager.

(8)  July 2017 incident

On 6 July 2017, the defendant attended the Management Office and made threatening statements to the staff of the Manager, in which the defendant expressed an intention to cause trouble to the committee members of the IO and a particular staff member of the Manager.

(9)  21 July 2017 incident

On 21 July 2017, the defendant made a call to Lo, in which the defendant spoke threatening words to Lo.

(10)  22 July 2017 incident

On 22 July 2017, the defendant made a phone call to Lo and threatened him.

(11)  22 August 2017 incident

On 22 August 2017, the defendant went to the Management Office and shouted foul language to the staff therein. The defendant also forcefully hit the counter inside the office.

(12)  4 January 2018 incident

On 4 January 2018, the defendant went to the Management Office and threatened the staff therein. In the course of doing so, the defendant claimed that he was a member of a triad society. The defendant was later arrested and charged with claiming to be a member of a triad society.

(13)  24 January 2018 incident

On 24 January 2018, the defendant made a phone call to the Management Office and threateningly said that the chairperson of the IO should have security protection when he went out.

(14)  12 February 2018 incident

On 12 February 2018, the defendant repeatedly shouted foul language in the Management Office and hit the counter in the office.

(15)  9 March 2018 incident

On 9 March 2018, the defendant made a phone call to the Management Office and threateningly said that nothing could be negotiated in future and they should be careful.

(16)  Further incidents

(a) During the period from January 2017 to April 2018, the defendant called the Management Office 186 times for a total of 43 hours 25 minutes. In particular, the defendant made calls to the Management Office totaling over 10 hours in January 2017, totaling nearly 8 hours in March 2017, and totaling nearly 9 hours in May 2017.

(b) During the period from November 2016 to April 2018, the defendant visited the Management Office and the OPA 66 times and constantly harassed and/or interfered with the work of the IO and the Manager, and as a result, 45 incidents were reported to the police for investigation.

8.  In the supporting affirmation, Kwok has verified the matters pleaded in the statement of claim and produced documents prepared by the Manager and some CCTV recording in support of the plaintiffs’ claim.

9.  The defendant has made a reply to these incidents in his affirmation. In that affirmation, the defendant said:

(1)  20 January 2017 incident

The defendant agreed that on 20 January 2017, he did go to the Management Office and ask the staff to go to the Unit to check something. However, he did not assault nor threaten any staff member of the Manager. The defendant queried if the IO and the Manager’s allegation is true, why no report has been made to the police.

(2)  9 May 2017 incident

The defendant agreed that he did go to the Management Office on that date. The purpose of that visit was to ask the Management Office not to publish the defendant’s name and address on notices issued by the office. The defendant was not satisfied with the reply given by the staff, and the defendant had raised the complaint several days ago and the staff had not carried out any follow-up action.

(3)  Incidents on 27 June 2017 and 28 June 2017

The defendant agreed that these incidents did take place. He said that he assaulted Lau out of momentary impulse. After hitting Lau, he immediately surrendered himself to the police and pleaded guilty to the charge in court.

(4)  Incidents on 30 June 2017, 4 July 2017, 5 July 2017, 6 July 2017, 21 July 2017, 22 July 2017 and 22 August 2017

The defendant said that he was only continuously requesting the staff of the Management Office not to disclose the defendant’s personal information in any notice published by the office, otherwise the defendant would make a complaint to the Privacy Commissioner for Personal Data. The defendant requested the staff to follow up his case, for it was their duty to do so. The defendant said he had never harassed the staff.

(5)  4 January 2018 incident

On 4 January 2018, the defendant went to the Management Office to ask the staff therein to handle the water seepage problem in the Unit. There was an unhappy discussion in the Management Office. Police was called. The defendant was accused of claiming to be a member of a triad society in that meeting. However, he was acquitted after trial, with costs awarded to him. The defendant denied that he had done anything improper in the Management Office on 4 January 2018.

(6)  Incidents on 24 January 2018, 12 February 2018, 9 March 2018, and the further incidents

The defendant said that he did not have a good relationship with the IO and the Manager, but he had not harassed or threatened the committee members of the IO and the staff members of the Manager as alleged.  The defendant queried if he had done all these, why no report had been made to the police.

THE PRINCIPLES

10.  The principles concerning applications under Order 14 have been succinctly summarized by DHCJ Wilson Chan (as he then was) in Li Chuen Kwai v Po Lam Construction Development Ltd[2], which include:

“11. As far as the plaintiff’s claim is concerned:

(1) An application for summary judgment must be supported by an affidavit verifying the facts on which the claim is based [Order 14, rule 2(1), Rules of the High Court].

(2) The Statement of Claim must be good and complete in itself; any defect or omission in the Statement of Claim cannot be corrected or supplemented by the plaintiff’s affidavit. If the defect is one of substance, the application for summary judgment will be dismissed [see: Hong Kong Civil Procedure 2014 at Practice Note 14/1/5].

(3) This means that an Order 14 application has to proceed on the case as pleaded, and it is those facts (as pleaded) which have to be verified on affidavit.

(4) Where the assertions in the plaintiff’s affirmation constitute a material deviation from the plaintiff’s pleaded case, the plaintiff will have failed to verify his claim as pleaded, and summary judgment should not be granted [Lin Jan v Long Xiaobo, HCA 1516/2012 (Judgment dated 4/09/2013)].

(5) Equally, summary judgment will not be granted where the plaintiff’s affidavit evidence is materially different from and inherently inconsistent with his/her case in the Statement of Claim [see: Sin Yuk Hung v Sin Tung San, HCA 474/2013 (Judgment dated 18/12/2013)].

12. As far as the defendant’s defence is concerned:

(1)  The defendant shoulders the burden to satisfy the court that he has a real or bona fide defence (ie that there are triable issues), or that there ought for some reason to be a trial of the plaintiff’s claim.

(2)  However, a complete defence need not be shown. The defence set up need only show that there is a triable issue or question or that for some other reason there ought to be a trial; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact.

(3)  Although the mere assertion in an affidavit does not, ipso facto, provide leave to defend, the court will not embark upon a mini trial of the action on paper and leave to defend will be granted unless the defence raised is so incredible or so contradicted by contemporaneous documents or circumstances that it becomes clear that the defence is a sham.

(4)  The test is not whether the defendant’s assertions are to be believed, rather it is whether those assertions are believable, ie capable of being believed. If so, the defendant must have leave to defend.

(5)  Whether the defendant’s assertions are believable is a question that should be answered not by taking those assertions in isolation bur rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute.”

11.  Order 14 proceedings are only for clear and obvious cases. The reminder given by Roger JA (as he then was) in Ng Lung Sang Anita v Lam Yuk Lan[3] should always be borne in mind:

“Those advising clients ought to be very cautious before commencing O86 and O14 proceedings. They are there only for clear and obvious cases. The old adage that if you have to sit down, it is not a case for O14 is equally applicable today as it was when it was first coined.”

ANALYSIS

12.  In my view, the plaintiffs have several insurmountable hurdles in this Order 14 application.

13.  Firstly, the basis of the injunction claimed by the plaintiffs is First Schedule, Clause I(1) and Third Schedule, Clause 5[4]. It is the plaintiffs’ case that the Management Office is a common facility as defined in the DMC. The relevant provisions in the DMC are as follows:

(1)  DMC, Clause 4

“Each equal undivided Share of and in the Estate Together with the full and exclusive right and privilege to hold use occupy and enjoy such portion(s) of the Estate shall be held by the person or persons from time to time entitled thereto subject to and with the benefit of the easements, rights, privileges and obligations set out in the First Schedule hereto.”

(2)  First Schedule, Clause I (1)

“Full right and liberty for the Owner of a Unit and his servants, agents and licensees (in common with all other persons having the like right) to go pass and repass over and along the Common Areas and other common parts of the Estate and to use the Common Facilities for all purposes connected with the proper use and enjoyment of his Unit PROVIDED that in exercising such rights of use no Owner shall interfere with or permit or suffer to be interfered with any of the Common Facilities and that each owner shall comply with the Estate Rules and other regulations (if any) from time to time in force in respect of the same.”

(3)  Third Schedule, Clause 5

“No Owner or occupier shall make or permit any disturbing noise in his Unit(s) especially outside normal working hours or do or permit anything to be done which will interfere with the rights comfort and convenience of other occupants. ……” (Emphasis added)

14.  In my view, First Schedule, Clause I (1) and Third Schedule, Clause 5 arguably concern the rights enjoyed by the owners and occupants of the Estate, not the rights enjoyed the IO or the rights enjoyed by the Manager. According to the plaintiffs’ case, the defendant may have assaulted, intimidated and harassed the committee members of the IO and the staff of the Manager. However, in all the incidents mentioned by the plaintiffs, it has not been shown how the right of using the Management Office enjoyed by any owner or occupant of the Estate has been interfered. In fact, there is no plea in the statement of claim saying so. That being the case, even assuming that the alleged wrongful acts of the defendant are proved, the plaintiffs may still have difficulties in saying that the defendant has breached these covenants.

15.  Secondly, if the defendant’s acts do not constitute any breach of the DMC but constitute assault, intimidation, and harassment against some committee members of the IO and some staff members of the Manager, arguably the proper plaintiffs should be the individuals injured by the defendant’s acts, and not the IO or the Manager.

16.  Thirdly, in my view, there is some reason that the dispute between the plaintiffs and the defendant ought to be resolved at trial.

(1)  Kwok does not say that she has witnessed any of the incidents pleaded in the plaintiffs’ case in the supporting affirmation. Save and except the incidents on 27 and 28 June 2017, the incident on 22 August 2017, and the incident on 4 January 2018, the evidence in support of the other incidents are merely some incident reports exhibited in the supporting affirmation. In respect of each incident report, it is not clear who is the author, and on what basis the author has made the incident report. The author of an incident report may not be the witness of the incident but may have made the report on the basis of some hearsay evidence. The defendant has made an affirmation denying the plaintiffs’ allegations. Given that this is a situation in which one man’s word against the other’s, and given that the reliability of the incident reports has to be investigated, it would not be appropriate to determine this case summarily.

(2)  In respect of the incidents on 27 and 28 January 2017, it is clear that the defendant did assault Lau on 28 January 2017. However, in a civil claim against the defendant on the basis of the assault, the proper plaintiff arguably should be Lau and not the IO nor the Manager, for only Lau is the victim of the assault.  Further, if the plaintiffs can only prove the incidents relating to the assault but fail to prove the other incidents at the end, the incidents relating to the assault may be viewed as isolated and non-recurring events, and the court may not grant the injunction sought by the plaintiffs in these circumstances.

(3)  In respect of the incident on 22 August 2017, apart from an incident report, Kwok has also produced CCTV recording concerning this incident. I have watched the CCTV recording. As shown in the CCTV recording, the defendant went to the Management Office on that date. He said that he came to pay management fees. After paying the management fees, the defendant claimed that the receipt issued by the office was not a proper receipt and made a scene there.  He was impolite to the staff in the office, and he spoke foul language repeatedly. Notwithstanding all these, the defendant did not assault anyone in the office. Arguably, the defendant might not have committed any intimidation or harassment either. Merely speaking foul language and being impolite to the staff does not necessarily mean that the defendant has made any unlawful threat.  Further, this incident itself may not show that the defendant has done anything which is sufficiently repetitive in nature and may constitute harassment. Even if any intimidation or harassment has been committed, the proper plaintiff perhaps should be the individuals injured by the tortious acts and not the IO or the Manager.

(4)  In respect of the incident on 4 January 2018, Kwok has also produced CCTV recording, which I have watched. As captured by the CCTV, the defendant went to the Management Office and demanded to see some staff members, but was told that the staff members were not on duty.  The defendant was not satisfied with the answer and demanded to see the staff members named by him. Some police officers arrived the scene to handle the matter. The defendant was impolite and spoke foul language at the office. However, the defendant did not prevent anyone from using the Management Office.  He also did not assault anyone in the office. Further, for the reasons stated in the subparagraph above, arguably the defendant might not have committed the tort of intimidation or harassment. It is also arguable that even if the tort of intimidation or harassment has been committed by the defendant, the proper plaintiff would be the individuals injured by the tortious acts and not the IO or the Manager.

17.  For the reasons above, in my judgment, it is not clear and obvious that the plaintiffs should have summary judgment. The dispute herein has to be resolved at trial.

DISPOTISTION

18.  I refuse to give summary judgment to the plaintiff. The defendant is entitled to have unconditional leave to defend. I so order. Costs of the summons be to the defendant and be summarily assessed at HK$160.