HO KWOK MING v. WONG HUNG HO AND OTHERS

DCCJ 5031/2021

[2022] HKDC 370

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5031 OF 2021

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BETWEEN

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DECISION

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A. BACKGROUND

1.  The plaintiff, together with the 2^nd and 3^rd defendants (collectively, “the 3 Brothers”), are the joint tenants of Lot 960 in Demarcation District 118, Yuen Long (“Lot 960”). Lot 960 was first acquired in 1973 by the 3 Brothers’ father (“the Father”), who subsequently assigned it to himself and the 3 Brothers as joint tenants in 2000.

2.  The Father passed away in 2002, and since then the 3 Brothers have become the only joint tenants of Lot 960.

3.  Section A of Lot 965 and the Remaining Portion of Lot 965 both in Demarcation District 118, Yuen Long (“Lot 965 SA” and “Lot 965 RP” respectively, and collectively, “the 1^st defendant’s Lands”) are both located in the close vicinity of Lot 960. The 1^st defendant purchased these two pieces of land (which are adjacent to each other) in October 2019.

4.  The plaintiff filed the writ of summons herein on 29 October 2021. It was alleged therein that ever since his family moved into the premises known as No.116 Nam Hang Tsuen, Yuen Long (“Premises”) which was situated on Lot 960 in 1973, he and his family have been enjoying a right of way through a path cutting through the 1^st defendant’s Lands (“the Lot 965 Path”) to and fro a public highway known as Tai Shu Ha Road West both on foot and also in vehicles. It was pleaded that since they have enjoyed such a right for at least 20 years and that such use was habitual, open and continuous, the plaintiff and his family have acquired the right to use the Lot 965 Path by prescription.

5.  Although the 2^nd and 3^rd defendants are supportive of this action, they did not want to be added as co-plaintiffs. The plaintiff has therefore added them herein as defendants.

6.  By summons filed on 29 October 2021 (“the Summons”), the plaintiff applies for an interlocutory injunction order in the following terms:

“1. Until trial or further order of the Court, there be an interim injunction:

(a) Restraining the 1^st Defendant, whether by himself, his servants, agents, nominees, or any of them or otherwise howsoever, from repetition or continuance of the acts complained in the Statement of Claim filed herein or of similar acts hindering and/or obstructing the Plaintiff’s right and/or easement over the Disputed Way as defined in the Statement of Claim filed herein and delineated in orange in the plan enclosed hereto.

(b) Requiring the 1^st Defendant to take all steps necessary to remove all fences and/or blockades from Lot 965 SA and Lot 965 RP within 14 days from today so as to enable the Plaintiff to exercise his right and/or easement over the Disputed Way as defined in the Statement of Claim filed herein and delineated in orange in the plan enclosed hereto at all times without hinderance and/or obstruction.”

7.  At the call-over hearing held on 5 November 2021, the plaintiff’s counsel informed the court that the plaintiff would no longer ask to have all fences and/or blockades at the 1^st defendant’s Lands be removed in the present application. Instead, the plaintiff would only ask for an interlocutory order for the 1^st defendant to open up the Lot 965 Path[1].

8.  In their written submissions, the plaintiff’s counsel had set out the revised terms of the proposed order as follows:

“an injunction requiring the 1^st Defendant to take all steps necessary to reopen the Disputed Way (as delineated in the diagram annexed hereto[2]) within 14 days from the date hereof, failing which the Plaintiff shall be at liberty to take all steps necessary to reopen the Disputed Way and the 1^st Defendant (whether by acting by himself or through his agent, servant, nominee or otherwise) shall be restrained from intervening with the Plaintiff’s acts of reopening the Disputed Way.”

9.  By consent, this application is disposed of on papers.

B. LEGAL PRINCIPLES

10.  It is trite that the American Cyanamid principles are applicable in an application for interlocutory injunction. Pursuant to those principles, the court has to consider:

(1) Whether there are serious issues to be tried;

(2) Whether damages would be an adequate remedy for either side and where the balance of convenience lies.

11.  In an application where interlocutory mandatory injunction is sought, the court should also bear in mind what Ma J (as his Lordship then was) said in the case of Music Advance Limited & Another v The Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041:

“11. The applicable principles for interlocutory injunctions are well-known and do not need repetition. Generally, one needs to look no further than American Cyanamid v. Ethicon Ltd [1975] AC 396 and the relevant text in Hong Kong Civil Procedure 2002 Volume 1 at paragraphs 29/1/8-29/1/50.

12. I would, however, only highlight one aspect. Where, as in the present case, the plaintiffs seek an interlocutory mandatory injunction (that is, an order requiring the defendant to do something, in contrast to a prohibitory injunction which restrains the defendant from doing something), the following matters should be borne in mind as being the court’s approach :

(1) In the case of interlocutory mandatory injunctions, it is often said or assumed that a court will not grant one unless it feels a high degree of assurance that at the trial of the action, it will be shown that the injunction was rightly granted : see Shepherd Homes Ltd v. Sandham [1971] Ch 340 at 351. This has been explained and sometimes understood as meaning that in the case of an interlocutory mandatory injunction, the applicant’s case on the merits has to be made out to a higher standard of proof than in the case of prohibitory injunction : see the Court of Appeal’s observations in TKI Limited v. New Happy Limited [1995] 1 HKC 551 at 554 B-D.

(2) Broad statements such as the above must, however, be properly put in context.

(3) The basic approach to interlocutory injunctions, whether mandatory or prohibitory, is the same. Section 21L of the High Court Ordinance, Chapter 4 makes no distinction between these two types of injunctions and simply states that interlocutory injunctions may be granted if it appears to be just or convenient to do so.

(4) At the interlocutory injunction stage, the principal concern of the court is that it might make a wrong decision in the sense that after trial, the party to whom an interlocutory injunction has been granted may lose or the party who has been refused one, may win. The court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong. This ‘fundamental’ principle is the source of the guidelines that have evolved for the determination of interlocutory injunctions (included are, of course, the American Cyanamid guidelines) and therefore, in the application of any guidelines, sight must not be lost of this principle. See here : Films Rover International Ltd v. Cannon Films Sales Ltd [1987] 1 WLR 670 at 680 D-G, in a passage from the judgment of Hoffman J which was approved by the House of Lords in R v. Secretary of State for Transport ex parte Factortame Limited (No.2) [1991] 1 AC 603 and recently reiterated in the English Court of Appeal decision of Zockoll Group Ltd v. Mercury Communications Ltd [1998] FSR 354 (which Mr Au was kind enough to place before me).

(5) Two common guidelines are of course the consideration of the merits of the plaintiffs’ claim and the balance of convenience. Here, it is of course easy to see at once how they are linked to the fundamental principle : there must be a risk of injustice if the plaintiff cannot even establish a serious question to be tried or that one or the other party will be put to substantial inconvenience or prejudice if an interlocutory injunction were or were not granted.

(6) In the case of interlocutory mandatory injunctions, the risk of injustice (being wrong in the sense referred to above) can be quite acute. In Films Rover International Limited, it was put thus by Hoffman J at 681 B-E :

‘In Shepherd Homes Ltd. v. Sandham, Megarry J. spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage : they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial. One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable. In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.’

(7) This passage in my view explains just why it is that generally a court will have to feel a high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given; all this being an exercise in assessing the strength of the plaintiffs’ case : see sub-paragraph(1) above. However, I emphasize that this is only generally the court’s approach. Where it is shown, as an exception to this general approach, that the case is one in which the withholding of on interlocutory mandatory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel the ‘high degree of assurance’ as aforesaid, it would be right to grant an interlocutory mandatory injunction : see Films Rover International Limited at 681 A-B.

(8) This of course brings into focus the balance of convenience. Thus, if a plaintiff in seeking an interlocutory mandatory injunction cannot demonstrate more than a serious question to be tried, it will have to show that the balance of convenience tilts so much in its favour that justice requires such an injunction to be granted, even taking into account those aspects of an interlocutory mandatory injunction expressed by Hoffman J in Films Rover International Limited.

(9) At no stage, however, in the consideration of the matter does the court lose sight of the practical realities of the situation to which the injunction will apply : see NWL Limited v. Woods [1979] 1 WLR 1294 at 1306C per Lord Diplock.”

12.  Cheung JA had also given the following reminder in Lai Hoi Ping (suing on his own behalf and on the behalf of all other members of Hong Kong Taxi Association) & Another v Persons Occupying Portions of Nathan Road near to and between Argyle Street and Dundas Street to prevent or obstruct normal vehicular traffic from passing and repassing the occupied areas & Others (HCMP 2975/2014, unreported, 15 November 2014):

“[…] it has to be borne in mind that the court’s jurisdiction to grant an injunction, whether interlocutory or final, is based on section 21L of the High Court Ordinance (Cap 4) which provides that where it appears to the court to be ‘just or convenient’ to grant an injunction, the court may do so. The cases have given various guidelines on when it is “just or convenient” to grant an interlocutory injunction, which, if granted, is, by definition, granted before the final outcome at trial is known. It is to address this peculiar feature of an interlocutory injunction that considerations such as whether there is a serious question to be tried (so that the plaintiff’s claim is not a “frivolous or vexatious” one), whether damages is an adequate remedy, and where the balance of convenience lies, come into the picture, so that the court may, putting it negatively, choose the course of “lesser evil”, or putting it positively, decide whether it is “just or convenient” to grant an interlocutory injunction before the final outcome at trial is known.” (at paragraph 9)

13.  Hence, it is clear that it is not an inflexible rule that whenever a mandatory injunction is sought, the plaintiff must satisfy the court that there is a high degree of assurance that he shall succeed at the trial. It all depends on the circumstances. At the end of the day, the ultimate question is whether the requirement in section 52B of the District Court Ordinance (Cap.336) is satisfied – whether the court considers it just or convenient to grant the injunction. The court will take whichever course that carries the lower risk of injustice if it turns out to be wrong.

C. “THE DISPUTED WAY”

14.  Before I proceed further, it is necessary to deal with one matter concerning the definition of “Disputed Way” adopted by the plaintiff.

15.  In his Statement of Claim, the term “Disputed Way” was defined in paragraph 7 thereof, which reads:

“Ever since the Ho Family moved into the Premises on Lot 960 in or around 13 September 1973, the Plaintiff and the Ho Family have been enjoying a right of way (1) from Lot 960 over Lot 965 SA and Lot 965 RP to a public way known as Tai Shu Ha Road West, and (2) back again from the said Tai Shu Ha Road West over Lot 965 SA and Lot 965 RP to Lot 960, on foot and also with vehicles, at all times of the year (the ‘Disputed Way’). The position and termini of the Disputed Way is more particularly delineated in orange in the plan enclosed as ‘Annex 1’ to this Statement of Claim.”

16.  “Annex 1” attached to the Statement of Claim is identical to the plan attached to the written submissions of the plaintiff’s counsel which is annexed to this Decision. It can be seen that, while the plaintiff described “Disputed Way” in the above quoted paragraph as the way which ran “over Lot 965 SA and Lot 965 RP”, he had coloured orange the entire path leading from his Premises all the way to Tai Shu Ha Road West. In my view, that is not right, because obviously the dispute in the present case only concerns the part of the path which is located within the 1^st defendant’s Lands, rather than the entire path between the plaintiff’s Premises and Tai Shu Ha Road West. According to the plaintiff’s evidence, if he walked or drove from his Premises to Tai Shu Ha Road West, he would have to walk/drive past the path within the 1^st defendant’s Lands; after leaving Lot 965 SA, he would have to go north for a distance before turning right, and he would then reach Tai Shu Ha Road West if he went along the path.

17.  For the purpose of avoiding any confusion or misunderstanding, in this Decision I will use the following terms to describe the paths mentioned above:

(1) “the Lot 965 Path” – the path which is within the boundary of Lot 965 SA and Lot 965 RP, which is coloured orange in the annexed plan;

(2) “the South-North Path” – the portion of the path which the plaintiff would use to travel north after leaving the Lot 965 Path upon leaving home;

(3) “the East-West Path” – the portion of the path which connects the South-North Path and Tai Shu Ha Road West, which is coloured orange in the annexed plan;

(4) “the Entire Connecting Path” – the entire path which connects the plaintiff’s Premises and Tai Shu Ha Road West, in other words, “the Disputed Way” as described by the plaintiff.

D. MERITS OF THE PLAINTIFF’S CLAIM

18.  As far as the law on easement by prescription is concerned, it is undisputed that it has been authoritatively set out in the case of China Field Limited v Appeal Tribunal (Buildings) [2009] 5 HKLRD 662 (CFA), in which Lord Millett NPJ stated that:

“[…] People who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangements accordingly.” (at paragraph 84)

19.  For the purpose of the present case, it would also be useful to refer to the case of Yik Wai Pong v Yick Pak Kin [2019] HKCFI 21, in which Wilson Chan J held that:

“The relevant principles concerning the acquisition of an easement by prescription or loss of modern grant can be summarised as follows: –

(1) If the owner of land uses a road as a means of access to, and egress from, his land for more than 20 years “as of right”, then, at least in the absence of special circumstances, he will obtain a right of way over the land for the benefit of his land.

(2) Whether the use is “as of right” depends on the claimant showing that it had been nec vi (without force), nec clam (without stealth) and nec precario (without permission from the owner).” (at paragraph 73)

20.  In this regard, the plaintiff has adduced evidence by way of his own affirmations and affirmations from a large number of neighbours who live in the same village (Nam Hang Tsuen), in an attempt to prove that:

(1) He and his family have been using the Lot 965 Path since at least 1973 on a daily basis;

(2) The use of the Lot 965 Path by the plaintiff and his family was habitual, open and continuous, and had never met with objection by anyone.

21.  The 1^st defendant has raised the following lines of defence:

(1) The East-West Path was not in existence before 1991;

(2) Even if the Entire Connecting Path was in existence prior to 1991 (which was denied), the width of this path was not wide enough to accommodate the use of vehicles;

(3) Before 1991, the Lot 965 Path was only a footpath;

(4) Since around 1985, the Father and the plaintiff’s family had been granted permission by Mr Wang Yeong-kao (“Mr Wang”), the then owner of Lot 965 SA and Lot 965 RP, to use the Lot 965 Path. Such permission was revoked and terminated when Mr Wang sold Lot 965 SA and Lot 965 RP on 6 August 2019;

(5) After entering Nam Hang Tsuen from Tai Shu Ha Road West, other than going through the Lot 965 Path, the plaintiff has 3 alternative routes to access Lot 960.

22.  I should say at the outset that I do not think the existence of any alternative routes would have any bearing on the merits of the plaintiff’s claim in this action because his claim is not made on the basis of easement of necessity. I will therefore not consider this aspect of the case at this point, but will only do so when I consider balance of convenience at the later part of this Decision.

23.  The rest of the 1^st defendant’s defence will be dealt with under two sub-headings below: “usage of the Lot 965 Path” and “permission”.

D1. Usage of the Lot 965 Path

D1.1 As a footpath

24.  The 1^st defendant accepted that the plaintiff and his family had been using the Lot 965 Path as a footpath (but a footpath only) rather than for access by vehicles since around 1985. However, he claimed that such use was expressly permitted by the then owner of Lot 965 SA and Lot 965 RP, Mr. Wang.

D1.2 As a path for vehicles

25.  It is trite that where an easement of way is acquired by long user, the right acquired must be measured by the extent of the enjoyment which is proved.

26.  In the present case, the plaintiff alleged that he and his family did not only use the Lot 965 Path as a footpath, but as a vehicular access also.

27.  The 1^st defendant argued that the plaintiff’s alleged use of the Lot 965 Path as a vehicular access since 1973 was impossible because, by relying on a surveyor’s report, the East-West Path was not in existence before 1991. The 1^st defendant further alleged, by reference to historical aerial photographs, Tai Shu Ha Road West was constructed between 1989 and 1991, and was open for use only in 1991.

28.  Despite the 1^st defendant’s arguments, I hold the view that the plaintiff has shown a high degree of assurance that he would be able to establish at the trial that he and/or his family had used the Lot 965 Path as a vehicular access for no less than 20 years for the following reasons:

(1) Even if the 1^st defendant is right that the plaintiff and his family did not use the Lot 965 Path as a vehicular access since 1973, that would not assist the 1^st defendant much because the plaintiff would be able to prove that he has acquired easement of way by prescription based on the fiction of lost modern grant if he has used the Lot 965 Path as a vehicular access for 20 years (i.e. no later than 1999 or 2001);

(2) The 1^st defendant’s counsel alleged that, prior to 1991, Tai Shu Ha Road West was yet to be constructed into a highway/vehicular road, and that it had not yet reached even Lot 978. However, the plaintiff has shown, by reference to an aerial photograph taken in 1974, that Tai Shu Ha Road West was already in existence by then, even though the plaintiff and his family could only have access to Tai Shu Ha Road West by going further north of the South-North Path (the West-East Path was not built yet);

(3) The plaintiff has adduced the affirmation of a Mr Kong Tin On who stated that according to his recollection, the Lot 965 Path was of only around 1 metre-wide before 1990. It was subsequently widened by the villagers and converted into a cement-laid road as the villagers were minded to use it as a vehicular access. This is consistent with the fact that Tai Shu Ha Road West was extended southwards around that time (1989 – 1991).

29.  The 1^st defendant’s counsel argued that the confusing and vague definition of “Disputed Way” used by the plaintiff in this action has weakened the plaintiff’s case because the villagers who have purportedly given corroborative evidence in support of the plaintiff’s case did not make it clear which particular part or section of the “Disputed Way” (i.e. the Entire Connecting Path) which the plaintiff had been using.

30.  I do not accept this argument. In my view, a fair reading of the affirmations show that there cannot be any confusion on what those villagers were referring to, because most of them had expressly referred to the 1^st defendant’s Lands and all of them had mentioned that the “Disputed Way” had been blocked/enclosed. There is no evidence that, apart from the Lot 365 Path, any other part of the Entire Connecting Path had been blocked.

D2. Permission

31.  The 1^st defendant alleged that the Father had in around 1985 obtained permission from Mr Wang to use the Lot 965 Path after he had bullied Mr Wang.

32.  It was said that if the 1^st defendant’s case is accepted at the trial, that would defeat the plaintiff’s claim of easement by prescription.

33.  The only evidence that the 1^st defendant had obtained in support so far is the evidence of his mother-in-law (“Madam Li”), who stated in her affirmation that she was told by Mr Wang that he had allowed the Father to use the Lot 365 Path for the sake of his own personal safety.

34.  When considering the strength of the 1^st defendant’s case in this respect, this court must take into account the following features of the evidence:

(1) The description of what Mr Wang had informed Madam Li was very brief;

(2) The evidence given by Madam Li was hearsay evidence;

(3) There is a question on the reliability of Madam Li’s recollection as to what she had been told by Mr Wang back in 1985, because 34 years had gone by when she informed the 1^st defendant about this matter in around 2019[3];

(4) On 24 December 2021, the 1^st defendant sent a message to Mr Wang’s son, who agreed to forward the 1^st defendant’s message to Mr Wang so that the latter could confirm the correctness of the factual assertions relating to the aforesaid permission. However, Mr Wang had not replied to the 1^st defendant at all.

35.  Having taken the above matters into account, I have great doubt on the probability that the 1^st defendant would be able to prove that the plaintiff’s family had been given any permission by Mr Wang on the use of the Lot 365 Path. Thus, I am of the view that the plaintiff has shown that there is a high degree of assurance that the trial judge will find that no such permission had been given by Mr Wang.

36.  Furthermore, looking at the whole matter in another way, if the 1^st defendant was right in that:

(1) The permission to use the Lot 365 Path was granted by Mr Wang back in 1985; and

(2) The plaintiff and his family did not use the Lot 365 Path as a vehicular path back then,

but if the court accepts that the plaintiff and his family did use the Lot 365 Path for vehicular access before 1999, then such use could not be said to be permitted by Mr Wang as such.

D3. Conclusion

37.  For the above reasons, I hold the view that the plaintiff has shown that there is a high degree of assurance that he would succeed at the trial.

38.  For the sake of completeness, I would deal with one more argument raised by the 1^st defendant’s counsel, namely that the grant of the interlocutory injunction herein would have the effect of disposing of the entire action.

39.  With greatest respect, I totally disagree.

40.  In my view, in the circumstances of the present case, even if a mandatory injunction is granted, it is still open to the trial judge to hold that the plaintiff should not be entitled to any right of way over the Lot 365 Path, upon which the 1^st defendant would be entitled to enclose his lands again and forbid any further passing through by the plaintiff. Allowing the plaintiff right of way pending trial is therefore totally different from granting him such a right on a permanent basis. The “far-reaching consequences” as alleged by the 1^st defendant (demolition of old fences, erection of new fences and commission of legal wrong on his part against the tenant) will not change the position.

E. EXERCISE OF THE COURT’S DISCRETION

41.  When this court exercises its discretion, it should bear in mind the fundamental principle that the court “should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’”, “in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial”[4].

42.  Parties have raised various matters which they said the court must take into consideration when the discretion is exercised. I will consider these matters below.

E1. Alternative routes

43.  The 1^st defendant has relied on a surveyor’s report in an attempt to prove that the plaintiff has the option of going via 3 alternative routes so as to gain access to his Premises. On this basis, it was submitted that no inconvenience would be caused to the plaintiff even if the injunction sought herein is rejected.

44.  In paragraphs 68 to 69 of the 1^st defendant’s written submissions, it was submitted that:

“68. There is actually no inconvenience caused to the Plaintiff since there are the 3 Alternative Routes which the Plaintiff could take by which the Plaintiff would be able to access Tai Shu Ha Road West from Lot 960. The 3 Alternative Routes would only take around 2-3 minutes to reach Lot 960 from the Car Park […]

69. This Court is invited to consider Tai Sang Feed Company, where Coleman J at §75 refused to grant the interlocutory mandatory injunction in the case after finding that the plaintiffs had proper access to and egress from their various land lots via alternative routes, so that inconvenience for the plaintiffs was not a weighty consideration in the balance of convenience. His observations apply to the present case, since the Plaintiff would still be able to access Tai Shu Ha Road West by vehicles (if he wanted to) by using the 3 Alternative Routes to reach the Car Park from Lot 960.”

45.  The “Car Park” referred to in the 1^st defendant’s submissions quoted above is located roughly in the middle of the South-North Path.

E1.1 Route 1

46.  First of all, the 1^st defendant suggested that the plaintiff could walk back home via Route 1 after parking his car at the Car Park along the South-North Path. To use this route on his way home, the plaintiff should walk straight after leaving the South-North Path, rather than turning into the Lot 965 Path. When the plaintiff reaches Lot 964 RP (which is adjacent to (and to the south of) Lot 965 RP), he should turn left and walk through Lot 964 RP. The plaintiff’s Premises would be right in front of him once he has left Lot 964 RP. The 1^st defendant stated in his evidence that the plaintiff’s mother was seen using this route on 21 November 2021.

47.  However, in the plaintiff’s 1^st Affirmation, he stated that:

“31. 在2021年7月15日左右，第一被告人完全封閉爭議路段後，本人和家人需要以步行的方式穿過其他私人擁有的土地方 (sic) 的狹窄通道可(sic)到達政府道路。本人和家人都深感不便及安全受到威脅。

32. 另一方面，其他路段的業主已經開始圍封他們的地段。在2021年9月24日左右，新界元朗丈量約份118約第964地段的業主透過楊振文律師行發信，表明反對其他人進入(於本案無直接關連的) 964地段。該地段是前述所指的狹窄通道。楊振文律師行的律師信現呈堂為 ‘HKM – 11’。如果情況繼續下去的話，本人和家人就再沒有其他道路通行。

33. 這不僅是方便與否的問題，也涉及安全問題。本人居住於960地段上的牌照屋。如果牌照屋不幸失火，本人和家人的安全將受到威脅。

34. 與本人同住的母親年事已高，已經年屆80歲。母親患有心臟病及腳患等一系列長期病患，時常需要醫療協助。事實上，在2021年9月25日左右，母親突然感到非常不適。然而，當救護車奉召到場後，救護員未能找到進入960地段的通道。由於爭議路段已被第一被告用鐵板圍上，如移除要用燒焊方法。最後，我們需要報警求助。經過一番擾攘後，得警方介入將置在964地段內狹窄通道的閘鎖切開，救護員才能用擔架床將母親送往醫院治理。事發當日的相關相片現呈堂為 ‘HKM – 12’。此外，我們的報警記錄現呈堂為 ‘HKM – 13’。萬幸的是，母親的病況沒有因此惡化。但是，母親可能隨時再次需要醫療協助。如果母親因為爭議路段被封鎖而不能獲得及時醫治的話，後果可能不堪設想。

[…]

36. 事實上，自母親一事以後，在2021年10月21日左右，同類事件再次發生。當晚，本人的表哥江天德感到不適，並要求救護車到場協助。江天德是長期病患者，並不時需要我們的照顧。然而，由於土地被圍封，消防員需要用上述同樣的方法鑿開門鎖，才可把表哥送院治理。事發當日的相關相片現呈堂為 ‘HKM – 14’。我方亦就此事報警求助。報警記錄現呈堂為 ‘HKM – 15’。”

48.  The plaintiff stated further in his 2^nd Affirmation:

“2. 本人曾經提及過年屆80歲的母親。不幸地，在2021年10月30日左右，母親再次感到身體非常不適。母親感到氣促、胸痛和心跳加速。

3. 於下午3時左右，救護車奉召到場後，救護員決定將母親送往博愛醫院治理。現將相關照片呈堂為 ‘HKM – 17’。

4. 幸好，經上次表哥江天德先生事件(2021年10月21日左右)，消防員鑿開964地段的門鎖後，964地段的業主暫時未有再把通道上鎖，母親的治理才不至於被延誤。然而，我們不知情況會維持多久。正如先前提到，964地段的業主已經開始透過楊振文律師行發信(證物 ‘HKM – 11’)，表明反對其他人穿越其土地。964地段的業主可能隨時再把小路封鎖，令我們無法歸家。”

49.  It can therefore be seen that the plaintiff does not have any right to go through Lot 964 RP. The fact that his mother was still seen to be using this route on 3 November 2021 is neither here nor there. There is no guarantee that Lot 964 RP would be kept open forever. In fact, as the plaintiff pointed out, the owner of Lot 964 RP had already issued a letter through his solicitors and reiterated his objections against others trespassing his land. If the owner of Lot 964 RP decides to lock the gate to Lot 964 RP again, Route 1 would immediately become inaccessible.

50.  I should also observe at this point that since it is undisputed that the 1^st defendant had completely blocked the Lot 965 Path since 15 July 2021, the plaintiff and his family must have been able to gain access to the plaintiff’s Premises through Route 1 all along (see paragraphs 31 and 32 of the plaintiff’s 1^st Affirmation). However, the medical incidents referred to above show that even if they had been using Route 1, this is not a reliable route in the sense that it could be locked at any time. The plaintiff and his family would be at the mercy of the owner of Route 1.

51.  The 1^st defendant’s counsel submitted boldly that “since the Plaintiff had been consistently using Route 1, an argument could be made that [the plaintiff] could apply for an injunction against the owner of Lot 964”[5]. With greatest respect, this argument is just stated to be rejected. I do not know, and the 1^st defendant’s counsel did not elaborate, what cause of action the plaintiff would have against the owner of Lot 964 RP particularly when there is no evidence that the plaintiff and his family had used Route 1 before the Lot 365 Path was blocked. In fact, the 1^st defendant’s solicitors accepted in their letter dated 22 October 2021 that:

“There are various other ways adopted by people to travel between Lot 960 and the main road Tai Shu Ha Road West including:

A． Through the unauthorized access into The Remaining Portion of Lot No.964 in Demarcation District No.118 and access into the public road […]”

52.  Furthermore, it is undisputed that the plaintiff could not drive through Route 1 and he had to park his car at the Carpark first before walking back (it is undisputed that it would take around 1 to 1.5 minutes to walk from the Carpark to the plaintiff’s Premises via Route 1). I will discuss the significance of this matter further below.

E1.2 Route 2 and Route 3

53.  The 1^st defendant’s surveyor suggested that the plaintiff could also use Route 2 and Route 3 to go back home after parking his car at the Car Park.

54.  The suggestions made by the 1^st defendant’s surveyor were disputed by a villager known as 唐嘉敏 (“Tong”) who affirmed that these routes could not reach the plaintiff’s Premises at all, but could only reach the entrance of Tong’s home at Section B of Lot 958.

55.  As far as Route 2 is concerned, by reference to a marked up plan exhibited as “WHH-14”, it appears that Route 2 would go through Section B of Lot 959. It is not alleged that this piece of land is owned by the plaintiff as well. In other words, if the plaintiff were to use Route 2, he would have to go through a piece of land owned by others.

56.  In relation to Route 3, the surveyor alleged in his report that:

“22. I shall set out my findings in respect of the alternative routes to access Lot 960 other than passing through Lot 965 SA and Lot 965 RP.

[…]

26. Route 3 was accessed on foot during field inspection. The access to route 3 is shown in […] of the attached video. The portion of Route 3 marked in Purple colour was not accessed during field inspection due to the existence of the unlocked gate (Figure 37), however it is identified on the Orthoimage that the route is accessible […]”

57.  However, in Tong’s affirmation, Tong positively identified the “unlocked gate” referred to by the surveyor in “Figure 37” as the entrance to Tong’s home, rather than to the plaintiff’s Premises.

58.  That being the case, I do not think, for the purpose of this application, I can accept that Route 2 and Route 3 could be used by the plaintiff as alternative routes as suggested by the 1^st defendant.

59.  In fact, even the 1^st defendant’s solicitors admitted that the alternative routes to Lot 960 were not routes which the plaintiff could use as of right. I have referred to a similar concession made by the 1^st defendant’s solicitors in relation to Route 1 above. In respect of other routes, it was stated in the letter of the 1^st defendant’s solicitors dated 22 October 2021 that:

“There are various other ways adopted by people to travel between Lot 960 and the main road Tai Shu Ha Road West including:

[…]

B． Through the unauthorized access into pieces of lands south of Lot 960 and the land The Remaining Portion of Lot No.963 in Demarcation District No.118 and access into the public road”

60.  The route mentioned under paragraph “B” in the said letter is part of both Route 2 and Route 3.

61.  The importance of this letter is that it shows that, according to the 1^st defendant’s knowledge at the time, all the alternative routes would involve gaining unauthorised access into the lands owned by others.

62.  The 1^st defendant further argued that the fact that the plaintiff’s Premises had encroached into neighbouring lots had made Lot 960 accessible via Route 3. I do not accept this argument. The surveyor’s video clearly shows that Route 3 only took him to the “unlocked gate” referred to above which was owned by Tong. Putting aside the question of whether the plaintiff could enter Lot 960 through the land owned by Tong (there is no evidence on this), in my view, the fact that the plaintiff had to go through Tong’s gate before reaching home has rendered a complete answer to the 1^st defendant’s argument.

63.  Indeed, if Routes 2 and 3 are viable alternative routes, the plaintiff did not have to call for police’s (and firemen’s, as the case may be) assistance in September and October 2021 when the ambulance staff could not gain access to his Premises, and the police (and firemen, as the case may be) in turn did not have to forcibly remove the lock of the gate at Lot 964 RP.

64.  Therefore, the case of Tai Sang Feeds Company Limited & Others v Sharply Development Limited [2021] HKCFI 163 cannot assist the 1^st defendant at all, for the facts in that case are clearly distinguishable. In that case, the subject land was accessible via a road which was a “properly constructed concrete road built by the Government”[6].

E1.3 Conclusion on alternative routes

65.  Hence, if no injunction is granted, the plaintiff and his family will be at the mercy of the owner of Lot 964 RP not locking the gate thereat, as they will have no access to their home when the gate thereat is locked. This is a very important matter to be taken into account.

E2. Access by ambulances

66.  Relying on the 2 medical incidents which happened in September and October 2021 referred to above, the plaintiff argued that the rejection of this injunction application could potentially put lives of his mother and his cousin at stake because ambulances would not be able to have direct access to his Premises.

67.  To deal with this argument, the 1^st defendant attempted to produce evidence for the purpose of showing that it is useless even if the Lot 365 Path is not blocked because ambulances could not have access to the plaintiff’s Premises anyway.

68.  In the 1^st defendant’s 2^nd affirmation, he stated that:

“7. I have previously expressed that ambulances and fire engines have never been able to enter into Lot 960 and/or the Village via the Disputed Way as the route leading into Lot 965 SA and RP is very narrow. The Surveyor has found that the narrowest part of the access route is 2.46m. I have observed that in the previous years, there was usually a type of ambulance appearing around the Village, but I was not sure of the model. I then searched online and looked at photos of ambulances, and found that image of ambulance model 519cdi at http://www.flickr.com/photos/10895300@N08/albums (the ‘website’) matched the model of ambulance appearing around the Village in my memory. There is now produced and shown to me an exhibit marked ‘WHH-31’, a copy of the said image of ambulance model 519cdi extracted from the website. Therefore, I came to understand that model 519cdi was the usual type of ambulance to appear around the Village, and they were never able to enter into the Village. To make good my point, I have asked my solicitor Fung Lim Kai of Benny Kong & Tsai to write to the Hong Kong Fire Services Department to enquire about the width of an ambulance, the email correspondence of which is produced in Fung Lim Kai’s affirmation dated 30 December 2021 (‘FLK-1’). I have read FLK-1 and I shall refer and adopt the contents therein.” (emphasis added)

69.  The 1^st defendant’s solicitor (“Mr Fung”) in turn stated in his affirmation as follows:

“3. At the behest of the 1^st Defendant, I wrote an email to the Hong Kong Fire Services Department to enquire about the width of an ambulance of model 519cdi on 15 December 2021 (the 1^st Defendant told me that the usual type of ambulance appearing around the Village was the model 519cdi). Therefore, on 21 December 2021, the Hong Kong Fire Services Department wrote back by email to confirm that for ambulances of model 519cdi, the width of the ambulance is 2.2m, the width of the ambulance including the rear-view mirror is 2.7m, while the turning radius of a road for the ambulance is 14m. There is now produced and shown to me an exhibit marked ‘FLK-1’, a copy of the said email correspondence between the Hong Kong Fire Services Department and myself dated 15 December 2021 and 21 December 2021.

4. On 29 December 2021, I called the Hong Kong Fire Services Department by the general enquiries number +852 2723 8787. There is now produced and shown to me an exhibit marked ‘FLK-2’ the website of the Hong Kong Fire Services Department showing the general enquiries number. I asked how the Hong Kong Fire Services Department chooses the size of ambulances when they receive calls of emergency originating from 元朗南坑村 and whether model 519 cdi was the most common form of ambulance in Hong Kong. The general enquiry line answered that (a) the Hong Kong Fire Services Department sends the ambulance which is nearest and most convenient to the site of emergency without regard to the size of the ambulance; and (b) it did not matter if the road in villages was too narrow as they would be able to get emergency personnel into the village no matter what. There is now produced and shown to me an exhibit marked ‘FLK-3’, a copy of the said phone call recording between the Hong Kong Fire Services Department general enquiries line and myself on 29 December 2021.

5. This answer matches the official policy of the Hong Kong Fire Services Department, which indicates that the practice is to send the nearest ambulance to the site of emergency. There is now produced and shown to me an exhibit marked ‘FLK-4’, the first chapter of 救護服務: 救護車調派分級制 dated July 2009 (the ‘report’). In the report, it is indicated at paragraph 1.4 that the policy is to send the nearest ambulance to the site of emergency.” (emphasis added)

70.  The 1^st defendant’s counsel argued that:

“31. […] However, as emphasised by the 1^st Defendant, contrary to the Plaintiff’s claim, ambulances and fire engines have never been able to enter into Lot 960 via the Disputed Footpath prior to 2019.

(1) Reference is made to WHH-20, which is a video of the route along the Disputed Way prior to entering into Lot 965 SA and Lot 965 RP, showing that it is very narrow and cannot accommodate large vehicles such as ambulances and fire engines.

(2) The Surveyor upon a site visit and making measurements has found that narrowest part of the access route to Lot 965 SA and Lot 965 RP from Tai Shu Ha Road West (‘access route’) is 2.46m.

(3) Enquiries have been made to the Hong Kong Fire Services Department, which confirmed that the width of an ambulance including the rear-view mirror is 2.7m, while the turning radius of a road of an ambulance is 14m. Therefore, the width of an ambulance (2.7m) is actually wider than the narrowest part of the access route (2.46m). It follows that ambulances, and by extension fire engines, have never been able to drive into the access route.

(4) – (6) […]”

71.  I find that there are quite a number of problems in this aspect of the 1^st defendant’s case:

(1) The 1^st defendant’s case is built upon the assumption that he was correct when he stated in paragraph 7 of his 2^nd Affirmation that the image of ambulance model 519cdi which he found on the internet (by reference to the “Website” which he defined therein) matched the model of ambulance appearing around Nam Hang Tsuen in his memory, because all subsequent enquiries made by Mr Fung were made in respect of model 519cdi only. However, the Website shows that there are other models of ambulances which look alike model 519cdi (for example, 518cdi and 516cdi). I just wonder (and the 1^st defendant did not explain) how come the 1^st defendant could be sure that he had not mixed up those different models of ambulances. I have serious doubt whether the court should give much weight to the 1^st defendant’s evidence in this respect;

(2) Even assuming that the 1^st defendant is right in that the most commonly used ambulance model is 519cdi, his argument that ambulances of this model cannot go through the Entire Connecting Path (since the narrowest part thereof is only 2.46m wide) is still bad. According to the surveyor[7], this “narrowest point” is located right after one has gone past the Car Park (i.e. along the South-North Path). According to the video taken during the surveyor’s visit, at that particular location, while there was a wall on the left hand side of the path, there were just iron railings on the right. Those railings were not high. There is no evidence as to the measurement of such railings’ height, but it can be seen that they were only up to the position of the surveyor’s waist. In other words, given Mr Fung’s evidence that the width of the ambulances was only 2.2m (without the rear-mirrors), there is no problem for ambulances to go through the so-called “narrowest point”; the only question is whether there is enough space on both sides of the ambulances for the extruded rear-mirrors to pass through. If those rear-mirrors are located at a height which is higher than the railings, then the extrusion of the rear-mirrors would not create any problem for the ambulances to go through the said “narrowest point”. However, the 1^st defendant has produced no evidence on this particular matter;

(3) As shown by the video, Mr Fung did not ask in the telephone conversation whether model 519cdi was the most common model of ambulances as he alleged in his affirmation;

(4) When Mr Fung asked the operator of the telephone enquiries hotline what ambulance would be sent, the operator replied that the ambulance which could arrive at the scene soonest would be sent. This is of course common sense and must be right under normal circumstances. However, what he did not enquire further is whether the Hong Kong Fire Services Department would send a smaller ambulance if the 999 Hotline is informed expressly that the most common model of ambulance could not go past the narrow path of the village. There is no evidence produced by the 1^st defendant that ambulance model 519cdi is the smallest type of ambulance.

72.  Even if the 1^st defendant is right in that ambulances would not be able to have access to the plaintiff’s Premises anyway, I agree that lives can be at stake if the ambulance staff’s access to the plaintiff’s Premises is blocked. As demonstrated by the medical incidents, this can happen if the injunction is not granted – ambulance staff may find upon their arrival at Nam Hang Tsuen that Route 1 cannot be used because the gate thereof is locked again. Police may have to be called for assistance. That will take time, and such delay in rendering medical assistance may lead to serious consequences.

73.  Moreover, even if ambulances would not be able to go through the Lot 365 Path anyway, there is no dispute that the plaintiff’s car could in the past. Blocking the Lot 365 Path would render it impossible for the plaintiff to drive his car all the way back to the entrance of his home. It can be imagined that, if there is any emergency medical condition on the part of the plaintiff’s mother, the plaintiff would not even have the option of driving his mother to the hospital directly himself (assuming that ambulances cannot go through the Entire Connecting Path as alleged by the 1^st defendant) if he could not make use of the Lot 365 Path. Of course this court has not forgotten that the Car Park is not far away from the plaintiff’s Premises. However, at the time of medical emergency, whether it is possible for the plaintiff’s mother to walk to the Car Park herself is a big question mark.

74.  The 1^st defendant alleged that the plaintiff had failed to provide medical records to support the genuineness of the medical incidents, and pointed out that the plaintiff’s mother was seen “rigorously doing her morning stroll on 3 November 2021 (after she was escorted to the hospital for allegedly feeling unwell)”[8]. This is indeed a very desperate argument and I would reject this argument without hesitation. Firstly, the plaintiff had already explained that at the end of the day, his mother’s condition was not worsened in the incident which happened on 25 September 2021. Secondly, it is neither here nor there to point out that the plaintiff’s mother was found fit enough to do her morning stroll more than a month after the said incident. Thirdly, there is no dispute that the plaintiff’s mother is already 80 years old and no one can really doubt that she is so old that she may need medical assistance at any time. Fourthly, the focus should be placed on the potential serious consequences in the event timely medical assistance cannot be obtained.

E3. Delay

E3.1 The legal principles

75.  It is trite that an application for interlocutory injunction has to be made promptly. The 1^st defendant’s counsel have referred this court to the case of King Fung Vacuum Ltd & Others v Toto Toys Ltd & Others [2006] 2 HKLRD 785 in which Rogers VP held that:

“20. There has traditionally been a strong requirement when interlocutory injunctions have been sought, that the plaintiff must show that it has acted promptly and without delay. Promptly in the circumstances of interlocutory injunctions has been commonly understood to be a period of six weeks or so of unexplained delay and three months with an explanation given for the delay in making application for an injunction. Since the American Cyanamid decision the importance of irreparable damage in an application for an interlocutory injunction is paramount. If there is no irreparable damage demonstrated then the need for an interlocutory injunction has not been shown. This is important because of the approach that the courts take to interlocutory injunctions. They are not the trial of the action and the court is concerned with whether irreparable damage will occur before a trial can take place. It stands to reason that if a party is prepared to allow matters to proceed and takes no action with respect to matters which have been extant for lengthy periods, it lies ill in their mouth top say that there is likely to be irreparable damage […]”

76.  Le Pichon JA further explained in her Judgment in Wong Chung Ming Development Fund Co Ltd v Profit Surplus Ltd [2009] 3 HKLRD 514 that:

29. Mr Yuen submitted that the defendant had known of the plaintiff’s position as early as March 2007 but did not apply for interlocutory relief until June 2008. He submitted that on that ground alone interim relief should have been refused. He sought to rely on the observations of Rogers VP (at §§20-21) in King Fung Vacuum Ltd v Toto Toys Ltd [2006] 2 HKLRD 785:

‘Promptly in the circumstances of interlocutory injunctions has been commonly understood to be a period of six weeks or so of unexplained delay and three months with an explanation given for the delay in making application for an injunction.’

30. That statement is a rule of thumb that has been used as a guide for many years. As Oliver J, as he then was, said in Radley Gowns Ltd. v Costas Spyrou (1975) FSR 455 at page 469, the court does not countenance a ‘leisurely stroll to the court door’ if a party seeks an interlocutory injunction. The question of delay is relevant when considering the question of irreparable damage because a party seeking an injunction is unlikely to stand by for any period of time if the party against whom the injunction is sought is truly causing serious and irreparable damage. Delay in seeking relief may also cause prejudice to a party against whom the injunction is sought because that party may have altered its position in the intervening period and be prejudiced by reason of the delay.

31. The date from which the period runs is the date on which the person seeking an interlocutory injunction knew or ought to have been aware that interlocutory relief would be required in order to prevent what is said to be irreparable damage.” (emphasis added)

77.  It can therefore be seen that even though the Court of Appeal described the time-lines of “6 weeks” and “3 months” as a “guide” and “a rule of thumb”, the ultimate question is whether it would be just to grant the injunction. In this regard, the court has to consider whether there was any irreparable damage, and whether the delay (if any) has caused any prejudice to the respondent of the application.

78.  Support for this view can be found in Harbour Front Limited v Money Facts Limited & Others [2019] HKCA 916 in which Kwan VP held that:

“26. The judge is right to find that the delay here was six weeks, from the newspapers advertisements on 2 October 2018. A delay of six weeks, even if unexplained (which we do not think is the case here), in the circumstances of interlocutory injunctions has been commonly regarded as acceptable (King Fung Vacuum Ltd & Ors v Toto Toys Ltd & Ors [2006] 2 HKLRD 785 at §20). Besides, delay is not an absolute bar to the grant of an injunction. The ultimate question is still, after taking into account all the circumstances, including the nature and length of the delay, whether it is just to grant the injunction (Kwoon Chung Motors Co Ltd v Kwok Cheuk Kin & Ors, HCA 2222 & 2223/2014, 1 December 2014, §58).”

79.  Further, in Re Wako Giken (H.K.) Company Limited [2010] 4 HKLRD 121, Harris J also had the following to say:

“24. I of course accept that applications for interlocutory injunctions should be made promptly and that there are authorities that suggest that mere delay can be fatal to an application, but as Spry observes at page 488 of the 8^th edition of The Principles of Equitable Remedies ‘Statements such as these, however, are in several respects misleading and do not reflect the actual practice of the courts of equity.’ In my view the correct approach is summarised by Eichelbaum J. in Monsanto Company v Stauffer Chemical Company [1984] FSR 599 at 571:

‘Further, and without wishing to detract from the proposition that equitable relief needs to be sought promptly, it is not sufficient for a defendant to show that the applicant has delayed unreasonably. It must be shown that because of that delay, it would be unreasonable to grant the remedy; that it has become practically unjust to do so. As Megarry J. said in: Legg v. Inner London Education Authority [1972] 1 W.L.R. 1245:

‘What seems to me important is not so much the length of the delay per se, but whether the delay has in some ways made it unjust to grant the injunction claimed.’ (pp. 1259-1260).

And see Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221, 240 and Spry, Equitable Remedies, 2^nd Ed., pp. 405, 454 – 455.”

80.  In this regard, the 1^st defendant’s counsel referred to the case of Ko Shun v Royal Mortgage Ltd [2019] HKDC 85 which was also a case involving right of way. I doubt whether it is useful to refer to other cases for the purpose of showing how the court exercised the discretion in those cases because the facts of different cases are bound to be different. As far as the case of Ko Shun is concerned, this may be demonstrated by quoting the following paragraphs of the Decision:

“50. Given the substantial delay in commencing these proceedings and in taking out this application for an interlocutory injunction, I doubt whether there is any irreparable damage to Madam Ko if the injunction sought is not granted.

51. Further, Mr Yeung has produced evidence showing that the operator of the Parking Lot is prepared to allow Madam Ko or the younger son’s vehicles to pass through the Parking Lot and the Gate on the condition that there would be a payment of HK$700.00 per month to the operator. By being able to pass through the Parking Lot and the Gate, vehicles can travel to and from House 43C. Madam Ko has not said that she is unable to pay the HK$700.00. By adopting this as an interim measure, Madam Ko would be able to have vehicular access to and from House 43C pending the outcome of the trial in these proceedings. If Madam Ko succeeds at the trial, she can recoup the fees paid from the mortgagee and from Mr Yeung.

52. On the other hand, if the injunction sought is granted and Madam Ko fails at the trial, Madam Ko may not be able to compensate the losses suffered by the mortgagee as a result of the injunction.

53. If the injunction sought is granted, that would be equivalent to making a provisional order declaring that Lot 2121 RP and Lot 2122 are subject to the right of way claimed by Madam Ko, and that would adversely affect the mortgagee’s interest. The market would treat the right of way as an encumbrance on these 2 lots. The mortgagee would have more difficulties in getting these 2 lots being sold. Further, the selling price would be discounted to reflect the encumbrance. Bearing in mind that Madam Ko is unable to offer any undertaking as to damages, if the injunction sought is granted but Madam Ko fails at the trial, the mortgagee may not be able to get any compensation from Madam Ko.”

81.  It is clear from the above that the court in Ko Shun was simply following the well-established approach and conducted the “balance of convenience” exercise. The factual circumstances therein are totally different. This court is not assisted at all thereby.

E3.2 Was there any delay on the part of the plaintiff?

82.  The 1^st defendant contended that there had been delay on the part of the plaintiff to make this application.

83.  Before considering this question, I should set out the chronology of the relevant events:

25 October 2019		The 1st defendant started to put up fence around Lot 965 SA and Lot 965 RP
24 November 2019		A group of villagers wrote to the 1st defendant: “本村一眾居民在上述地段於本月五日進行[…]工程之初，已即時向地盤負責人黃先生表示需留出行車路給予村民車輛出入，而經黃先生明確回覆已與地段擁有人溝通一定會留出車路。 惟現時工程進度卻見有圍封自久以來村民日常使用車路之可能性，而工程負責人黃先生亦未有明確之答覆，[…]，祈請新地主及地盤負責人黃先生信守承諾，留出車路給村民車輛出入。”
3 December 2019		The plaintiff’s solicitors sent a letter to the 1st defendant and threatened to bring legal action (for injunctive relief) if the latter denied the plaintiff to exercise his right of way
30 December 2020		The 1st defendant’s solicitors, by their letter to the plaintiff’s solicitors, denied the plaintiff’s alleged right of way
13 April 2021		The 1st defendant’s solicitors, in their letter to the plaintiff’s solicitors, stated that the 1st defendant “is to exercise his right to fence off the Land” without further notice
18 June 2021		The 1st defendant’s solicitors put up a public notice and declared that their client would fence off Lot 965 SA and Lot 965 RP
15 July 2021		Lot 965 SA and Lot 965 RP were completely fenced off
25 September 2021		Police had to forcibly remove the lock at the gate of Lot 964 RP so that the ambulance staff could gain access to the plaintiff’s Premises and take the plaintiff’s mother to the hospital
15 October 2021		The plaintiff, through his solicitors (assigned by the Director of Legal Aid), demanded the 1st defendant to reopen the Lot 965 Path within 7 days
21 October 2021		Firemen had to forcibly remove the lock at the gate of Lot 964 RP so that the ambulance staff could gain access to the plaintiff’s Premises and take the plaintiff’s cousin to the hospital
22 October 2021		The 1st defendant’s solicitors by letter denied the plaintiff’s alleged right of way
29 October 2021		The plaintiff filed the Writ of Summons and the Summons herein

84.  The plaintiff’s counsel submitted that there was no delay on the plaintiff’s part in making the present application, because:

(1) There was no need to apply for injunction in 2019 because the Lot 365 Path was not completely enclosed by then;

(2) Lot 365 SA and Lot 365 RP were only completely fenced-off on around 15 July 2021. This triggered the need for the plaintiff to apply for legal aid so as to protect his rights;

(3) The necessity for legal action “stepped up” in September/October 2021 by reason of the medical incidents referred to above;

(4) It took time for the Director of Legal Aid to process the plaintiff’s application for legal aid, and the plaintiff could only proceed with the present application after legal aid was granted.

85.  On the other hand, it was submitted on behalf of the 1^st defendant that:

(1) The plaintiff had offered no explanation whatsoever for failing to make the present application for nearly 1 year 11 months;

(2) The plaintiff’s counsel should not have given evidence from the Bar Table that the delay was caused by the time taken to apply for legal aid. In any event, it is not clear when the plaintiff started to apply for legal aid;

(3) The plaintiff was aware of the 1^st defendant’s intention to fence-off the 1^st defendant’s Lands in October 2019. In any event, the plaintiff was informed in April 2021 that the 1^st defendant’s Lands would be completely fenced-off. Hence, even if the plaintiff needed to apply for legal aid, he should have done that much earlier;

(4) After the 1^st defendant’s Lands had been completely fenced-off in July 2021, it had taken the plaintiff another 3 months to issue the Summons.

86.  It is noteworthy that, while the fence installation work was started back in October 2019, the Lot 365 Path had all along not been enclosed before July 2021. Furthermore, it is noted that:

(1) From the letter in Chinese dated 24 November 2019, it appears that the 1^st defendant’s contractor initially promised that the Lot 365 Path would not be enclosed. His attitude had only become more ambiguous subsequently;

(2) From the photographs captured from CCTV footages[9] which show the progress of the fence installation work, it appears that it would not take more than a few weeks for the 1^st defendant’s contractor to enclose the 1^st defendant’s Lands completely;

(3) Both parties were completely silent as to what happened in the period between 4 December 2019 (after the plaintiff’s solicitors sent the letter dated 3 December 2019 to the 1^st defendant) and 29 December 2020 (before the 1^st defendant’s solicitors replied to the plaintiff’s solicitors for the first time on 30 December 2020).

87.  On the basis of the aforesaid, in my view, it can be inferred that there was really no urgency for any injunction application to be made back in 2019 or even in 2020.

88.  However, the position started to change on around 30 December 2020.

89.  Even if the plaintiff assumed that the 1^st defendant had succumbed to his threat of legal action upon reading his solicitors’ letter dated 3 December 2019 (the 1^st defendant did not reply at all and did not proceed to completely enclose the Lot 365 Path thereafter), the plaintiff should start to review his position when he finally received a letter from the 1^st defendant’s solicitors dated 30 December 2020. Even though the 1^st defendant’s solicitors did not indicate that the 1^st defendant was going to enclose his lands completely, the plaintiff’s claim of right of way was expressly denied. The fact that the 1^st defendant had engaged solicitors should have alerted the plaintiff that the 1^st defendant might well take further action after his silence for more than a whole year.

90.  When the 1^st defendant’s solicitors sent another letter to the plaintiff’s solicitors on 13 April 2021, the 1^st defendant’s position had been made clearer, because it was expressly stated that:

“our client, as the owner of the Land, is to exercise his right to fence off the Land against trespasser(s) without further notice to you.”

91.  In my view, the plaintiff should have taken prompt action thereafter to protect his alleged right. However, the plaintiff did not explain why he did not take immediate action thereafter. It seems that he only instructed his solicitors to take legal action upon the happening of his mother’s medical incident on 25 September 2021.

92.  Even though the 1^st defendant had very clearly protested in his opposing affirmation that the plaintiff did not make this injunction application earlier, the plaintiff still did not offer any explanation in his affirmation in reply.

93.  Therefore, there has been an unexplained delay on the part of the plaintiff in making this application, because it has taken the plaintiff more than 6 months (since 13 April 2021) to file the Summons.

94.  I cannot accept the plaintiff’s submission that the delay was caused by his legal aid application, because there is no evidence at all as to when the plaintiff started the legal aid application process.

E3.3 Prejudice caused to the 1^st defendant

95.  Although there has been an unexplained delay on the part of the plaintiff in taking out this application, I do not think that I should dismiss his application right away on this basis. As aforesaid, the ultimate question which the court has to consider is whether it is still just for the court to make the injunction order despite such delay.

96.  The 1^st defendant submitted that it is unjust for the court to do so because he had suffered prejudice caused by the plaintiff’s delay:

(1) The 1^st defendant has spent $794,200 on erecting fences around the 1^st defendant’s Lands. Such costs were incurred only because of the 1^st defendant’s belief that the plaintiff was not going to take any legal action;

(2) Even if the 1^st defendant is only required to reopen the Lot 965 Path rather than removing the entire fence pursuant to an injunction, he would still have to spend money on installing fences along the two sides of the Lot 965 Path for preventing people from trespassing into other areas of the 1^st defendant’s Lands;

(3) The 1^st defendant has leased Lot 965 RP to a tenant on 1 March 2021. If the injunctive relief is granted, the tenant’s private use and enjoyment of the leased land would be seriously affected and the 1^st defendant may be sued for breach of the tenancy agreement;

(4) The 1^st defendant has obtained approval documents from various government departments for the development of the 1^st defendant’s Lands.

97.  I agree that if the plaintiff has taken legal action earlier, and if as a result an injunction is granted, the 1^st defendant might not have spent the entire costs on fencing off his lands in the way he did. He would have left the Lot 965 Path open, even though he could still proceed to enclose other parts of his Lands. Hence, in the event this court accedes to the plaintiff’s request now, part of the costs incurred by the 1^st defendant would be wasted, and the latter would also have to incur further costs in enclosing the 2 sides of the Lot 365 Path.

98.  Moreover, in the event an injunction is granted, the right of the 1^st defendant’s tenant to use Lot 965 RP for farming and storage would also be affected. I accept that, in such circumstances, the 1^st defendant may well be sued by his tenant.

99.  In relation to the 1^st defendant’s right to develop his lands, although his counsel alleged that “it is wrong for the plaintiff to suggest at §72(b) of the plaintiff’s skeleton that the 1^st defendant has no right to develop Lot 965 SA and Lot 965 RP”, and alleged that “the 1^st defendant has obtained approval documents from various Government departments”[10]:

(1) it is evident that the “approval documents” had nothing to do with Lot 365 SA at all;

(2) the “development” referred to by the 1^st defendant in his affirmation was to use Lot 365 SA and Lot 365 RP as farmland[11].

100.  In my view:

(1) The 1^st defendant would not suffer any irreparable damage as far as the fences are concerned, because he could be adequately compensated by damages if it is found subsequently that an injunction should not have been made against him;

(2) The plaintiff has produced a quotation to show that it would only cost $12,000 to reopen the Lot 365 Path (presumably to remove some of the fences). It is unclear whether this would include the costs of enclosing the two sides of the Lot 365 Path (i.e. to install fences thereat). However, even if it has not taken the installation costs into account, it would just be a matter of “how much”;

(3) In relation to the tenancy agreement which the 1^st defendant has entered into, again, the 1^st defendant could be adequately compensated by damages even if he is sued by his tenant. It should also be noted that the monthly rental payable under the said tenancy agreement was only in the sum of $6,800. In other words, even if the 1^st defendant is obliged to repay his tenant the total rental received under the tenancy agreement, he would only be liable for $163,200[12]. The 1^st defendant has not suggested that he would be liable for any sum more than that;

(4) As far as the 1^st defendant’s alleged development plan is concerned, he could also be adequately compensated by damages.

101.  It seems that the 1^st defendant is challenging the plaintiff’s ability to pay any damages if the latter were so liable. In this regard, there is no dispute that the plaintiff is one of the joint owners of Lot 960. While there is no evidence placed before the court on the value of Lot 960 and the structures built thereon, given the fact that the 1^st defendant had spent $3.7 million to purchase Lot 965 SA and Lot 365 RP, I do not think it is realistic to say that the value of Lot 960 is so low for the 1^st defendant to suggest that any judgment to be obtained against the plaintiff is likely to be empty judgments[13].

102.  All in all, I do not think the plaintiff’s delay would render it unjust for this court to grant an injunction.

E4. Ambiguity of the order

103.  The 1^st defendant’s counsel argued that the ambiguity of the size of the reopening of the Lot 365 Path is oppressive to the 1^st defendant and he cannot be adequately compensated by damages.

104.  This argument is disingenuous. The simple answer is that, if an injunction order is made, the plaintiff should be entitled to use the full width of the Lot 365 Path which he and his family had used before October 2019.

105.  Indeed, in the 1^st defendant’s surveyor report, the surveyor could indicate very clearly the location and dimension of the Lot 365 Path (see paragraph 19 thereof). I cannot see any ambiguity as alleged.

E5. Deprivation of the 1^st defendant’s opportunity to present his full case

106.  Lastly, the 1^st defendant argued that the grant of injunction herein would in effect be giving the plaintiff nearly the whole of the relief claimed in the writ, and thereby dispensing the need for a trial. Thus, the 1^st defendant would be deprived of a fair opportunity to present his full case before an injunction order is made.

107.  As I explained in the earlier part of this Decision, I do not agree that the grant of an injunction would in effect be disposing of the entire action as alleged.

108.  I therefore reject this argument.

E6. Balance of convenience

109.  Taking all the circumstances into account, I am of the view that granting an injunction would carry the lower risk of injustice if it should turn out that this decision is wrong:

(1) If this court grants the injunction but it turns out to be wrong, the 1^st defendant may suffer damages but he can be adequately compensated by damages;

(2) If this court refuses to grant the injunction but it turns out to be wrong, the plaintiff will not be able to drive his car back home. There is even a risk that the plaintiff and his family will not be able to go back home or leave Nam Hang Tsuen at all. In the event his mother needs urgent medical assistance, ambulances cannot be driven to the entrance of the plaintiff’s Premises directly. Medical assistance may not be made available to her on a timely basis because of the blockage of Route 1. Her life may be at stake. All these are irreparable damage, and the plaintiff cannot be adequately compensated by damages.

110.  In fact, I am of the view that the balance of convenience tilts so much in the plaintiff’s favour that justice requires such an injunction to be granted even if the plaintiff could not show a high degree of assurance that he will succeed at the trial.

F. FORTIFICATION OF UNDERTAKING

111.  The 1^st defendant seeks fortification of the plaintiff’s undertaking as to damages.

112.  The applicable principles in this regard are well settled. In Hui Chi Ming v Koon Wing Yee [2011] 1 HKLRD 260, Deputy High Court Judge Coleman SC (as he then was) held that:

“31. In the case of Chatwani v. Bhimji (No. 2) [1992] BCLC 387, at 404, it was held that:

‘Where a company against whom an injunction is granted wishes to obtain fortification of a cross-undertaking in damages, it must show the likelihood of a significant loss arising as a result of the injunction, and to demonstrate why it believes the other party will be unable to make good that loss’.

[…]

33. In Chow Chor-Leung trading as Rayontex Trading Co. v. Rafaella Sportswear Inc [1990] 1 HKLR 449, at 453 it was held that:

‘The court will order fortification where it appears just and proper to protect the defendant by making such an order; and in arriving at the amount to be put up by way of fortification, the court has to take a broad view. Indeed, there have been cases where the courts have said that if a detailed enquiry were necessary, that may be a very good reason for not ordering fortification. That is not to say that the party seeking fortification does not have to make out a case for fortification and provide the court with some material for the purposes of selecting a figure. What it does mean is that if there are arguments and counter-arguments on the amount, the court has to take a broad view without resolving all those arguments.’

34. In essence, at least where there is an application for fortification at the time of the original grant of the injunction, a court can order the fortification where it appears just and proper to protect the defendant by making such an order, and it falls to the defendant to show that there is a likelihood of a significant loss arising as a result of the injunction granted, and that there is a basis for the belief that the plaintiff would be unable to make good the loss.”

113.  The 1^st defendant submitted that there may be potentially legal costs arising from potential litigations brought by the 1^st defendant’s tenant for his breach of the tenancy agreement and misrepresentation. The 1^st defendant did not allege that there would be any other heads of damages which would be significant enough to justify the fortification of undertaking.

114.  In accordance with the 1^st defendant’s evidence, his tenant was going to use Lot 965RP for farming and storage. There is no evidence as to whether the tenant had started to farm, and it is unknown what the likely range of damages which the 1^st defendant would be liable would be. The only thing we know is that the total amount of rental to be received by the 1^st defendant from his tenant during the whole term of the said tenancy agreement (2 years) is $163,200. This is not a large amount at all. If the litigation is dealt with reasonably, in the circumstances of the case, the potential legal costs to be spent by the 1^st defendant cannot be significant.

115.  I therefore hold the view that the 1^st defendant has clearly failed to discharge his burden to show that the plaintiff will be unable to make good the 1^st defendant’s loss. I refuse to order fortification as requested.

G. THE FORM OF THE ORDER

116.  As I explained at the beginning of this Decision, the plaintiff initially applied in the Summons for a prohibitory injunction and a mandatory injunction. However, at the call-over hearing, the plaintiff’s counsel confirmed verbally that, instead of asking the 1^st defendant to pull down all the fences, the plaintiff would be content with the 1^st defendant’s reopening the Lot 365 Path only.

117.  When the plaintiff’s counsel lodged their written submissions, they further clarified that they would no longer ask for any prohibitory injunction. However, they suggested that the court should order that, in the event the 1^st defendant fails to reopen the Lot 365 Path within 14 days, the plaintiff should be at liberty to do it himself (or through his agent, etc.) (“the New Proposed Order”).

118.  Although the 1^st defendant’s counsel have not made any submissions in this regard (and thus can be taken to have no objection against this suggestion), I am not minded to make the New Proposed Order. Firstly, this revised form of order was only lodged after all affirmations have been filed, and therefore the 1^st defendant had no opportunity to give any evidence on his concern (if any) on this new proposal. Secondly, the plaintiff has made no application to amend the Summons and it cannot be disputed that the New Proposed Order is wider than the term as sought in the Summons. Thirdly, since the New Proposed Order would allow the plaintiff to destruct the personal property (the fences) over the 1^st defendant’s Lands, this potentially could lead to more problems.

119.  I therefore order that, upon the undertaking given by the 3 Brothers by virtue of their respective affirmations, a mandatory injunction be granted that the 1^st defendant shall take all necessary steps to reopen the Lot 365 Path within 14 days from the date hereof.

H. COSTS

120.  Bearing in mind the approach adopted in the case of China Medical Technologies, Inc. (in liquidation) & Others v. Samson Tsang Tak Yung & Others [2022] HKCA 42, I take the preliminary view that the merits of the injunction application herein itself as at the time of the application would fully justify ordering the 1^st defendant to pay the plaintiff’s costs of and incidental to the Summons. I therefore make a costs order nisi that the 1^st defendant shall bear the plaintiff’s costs of and incidental to the Summons (including counsel’s fees[14] incurred for the Summons with all costs reserved), to be taxed if not agreed. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

121.  If any party wishes to vary the costs order nisi:

(1) Such a party shall lodge and serve written submissions within 14 days hereof;

(2) The other party shall lodge and serve written submissions within 14 days thereafter;

(3) The applying party shall lodge and serve written submissions in reply within 7 days thereafter;

(4) The application shall then be disposed of on papers.

122.  The above order nisi shall become absolute in the absence of application to vary within the first 14-day period mentioned above.

Annex