|
HCA 80/2025
[2026] HKCFI 963
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 80 OF 2025
_______________
BETWEEN
| |
MAN KAI CHUNG |
1st Plaintiff |
| |
MAN KWOK TONG |
2nd Plaintiff |
| |
MAN YU SHING SIMON |
3rd Plaintiff |
| |
MAN KWOK WAH |
4th Plaintiff |
| |
MAN LOI HING |
5th Plaintiff |
| and |
| |
MAN PING NAM (文炳南) and
MAN TAI SANG (文泰山)
the managers of ‘MAN SHUI TONG WUI (文水塘會)’
registered under section 15 of
New Territories Ordinance (Cap. 97) |
Defendants |
_______________
| Before: |
Hon Eugene Fung J in Chambers (Open to Public) |
| Date of Hearing: |
10 February 2026 |
| Date of Decision: |
10 February 2026 |
__________________
D E C I S I O N
__________________
1. There are three applications before the court today, two involving the ex parte interlocutory injunction (“the Injunction”) granted by Deputy High Court Judge Andrew Li (“Ex Parte Judge”) on 13 January 2025, and the remaining one relating to the future conduct of the claim in these proceedings.
A. THE INJUNCTION
2. I will first deal with the two applications arising out of the Injunction. Before dealing with the applications substantively, it is necessary to briefly mention the nature of the Injunction and what has happened since the Ex Parte Judge granted the Injunction.
3. On 13 January 2025, the Plaintiffs obtained the Injunction from the Ex Parte Judge to restrain the Defendants from, amongst other things, proceeding with a meeting of the Man Shui Tong Wui (“the Wui”) scheduled to be held on 15 January 2025 or any other day to elect a third manager of the Wui. The Plaintiffs’ case was that they are members of 4 unincorporated associations which allegedly have interest in some land held by the Wui to the extent of “24 Shek (石)”[1]. As members of “24 Shek” (“24 Shek Members”), the Plaintiffs contended that they would be entitled to participate in the governance of the Wui.
4. After the obtaining the Injunction ex parte, the Plaintiffs issued an inter partes summons on 15 January 2025 to seek to continue the Injunction. On the same day, the Defendants issued a summons to set aside the Injunction. Both of these summonses have been adjourned to be heard before me today.
5. On 24 April 2025, a Tomlin order was made by Deputy High Court Judge Grace Chow to stay all proceedings in this action between the 1st, 3rd, 4th and 5th Plaintiffs and the Defendants. The terms in the schedule of the Tomlin order included (1) the 1st, 3rd, 4th and 5th Plaintiffs would discontinue their claim against the Defendants in this action, (2) the 1st, 3rd, 4th and 5th Plaintiffs would apply to join as co-respondents in HCMP 1041/2024, and (3) the Injunction would be discharged as between the 1st, 3rd, 4th and 5th Plaintiffs and the Defendants.
6. On 13 May 2025, the 1st, 3rd, 4th and 5th Plaintiffs issued a notice to discontinue the present action against the Defendants.
7. Accordingly, for today’s purposes, it is only necessary to consider whether the 2nd Plaintiff’s Injunction against the Defendants should continue or be set aside.
8. In considering whether to continue the 2nd Plaintiff’s Injunction, I apply the principles derived from American Cyanamid Co v Ethicon Ltd [1975] AC 396. They involve three major considerations: (1) whether the plaintiff has established a serious issue to be tried, (2) whether damages would be an adequate remedy for the plaintiff if the plaintiff were correct at trial, or for the defendant under the plaintiff’s undertaking if the injunction were granted and if the defendant were successful at trial, and (3) where the balance of convenience lies.
A1. Serious Issue to be Tried
9. In his skeleton submissions, the 2nd Plaintiff identified 3 serious questions to be tried, namely (1) whether the 24 Shek Members are members of the Wui, (2) whether the Defendants have acted in accordance with their fiduciary duties in convening a meeting to elect a third manager, and (3) whether the exclusion of the right of the 24 Shek Members to nominate a candidate amounted to a breach of duty.
10. The first question asks whether the 24 Shek Members are members of the Wui. For the reasons which I am about to give, I do not consider this to be a proper question to ask when considering whether or not there is a serious issue to be tried.
(1) The 1st, 3rd, 4th and 5th Plaintiffs have now discontinued their claims in these proceedings. The 2nd Plaintiff is therefore the only remaining plaintiff as far as the Injunction is concerned. Further, he is not bringing this action on behalf of all the 24 Shek Members or in any representative capacity. When considering the serious issue to be tried, it is in my view unnecessarily broad to ask whether the 24 Shek Members are members of the Wui.
(2) Further, it is common ground that the 2nd Plaintiff is already a member of the Wui. In his first affirmation, he said he has been one of the members of the Wui since 1997. Indeed, the 2nd Plaintiff accepted another Wui member’s nomination in January 2025 for election to be an additional manager of the Wui for the purpose of the meeting on 15 January 2025, which could not proceed because of the Injunction obtained by the Plaintiffs. Given that the 2nd Plaintiff is already a member of the Wui and can participate in the Wui’s affairs, it is in my view entirely unnecessity for him to ask the court to determine whether he is a member of the Wui in the capacity as a member of one of the 24 Shek Members.
(3) The 2nd Plaintiff argues that there is evidence before this court as to the status of the 24 Shek Members and whether they should be recognised as members of the Wui. However, as mentioned above, that issue is unnecessary as far as the 2nd Plaintiff is concerned. It is clear from the reliefs sought by the 2nd Plaintiff in the Indorsement of Writ that his main objectives in these proceedings are to (a) nominate and stand as a candidate in the election of the Wui’s manager, (b) attend meetings of the Wui for the election of manager and have access to information from such meetings, (c) restrain the Defendants from calling any meeting to elect a manager, and (d) hold the Defendants liable for breach of fiduciary duty as managers of the Wui and to remove the Defendants as managers. The 2nd Plaintiff has not identified any cogent reason why he cannot pursue his objectives as an existing member of the Wui.
11. The second question identified by the 2nd Plaintiff asks whether the Defendants have acted in accordance with their fiduciary duties in convening a meeting to elect a third manager. It is trite that the object of an interlocutory injunction is to protect a plaintiff against injury by violation of his legal right pending the resolution of the disputes. However, as mentioned earlier, the 2nd Defendant himself has accepted the nomination to be elected an additional manager of the Wui. Further, the Defendants mentioned in their second affirmation that the 2nd Plaintiff is capable of being elected as an additional manager if he manages to secure sufficient votes. In these circumstances, it is unclear what fiduciary duties the Defendants are said to have breached in relation to the 2nd Plaintiff’s desire to be elected as an additional manager of the Wui. Insofar as the 2nd Plaintiff alleges that there are some other legal rights which have been infringed by the Defendants that are unrelated to the 24 Shek Members or the intended meeting to elect a third manager, those allegations are not in my view relevant to the question of whether the Injunction should or should not be continued.
12. The third question identified by the 2nd Plaintiff asks whether the exclusion of the right of the 24 Shek Members to nominate a candidate amounted to a breach of duty. In my view, this issue does not arise vis-à-vis the 2nd Plaintiff. As an existing member of the Wui, the 2nd Plaintiff can nominate a qualified candidate to be a manager of the Wui. I cannot see how it can be said that such a right has been excluded.
13. At the hearing, Ms Lau on behalf of the 2nd Plaintiff poses a question of whether the outcome of the proposed meeting of the Wui would be different if the 24 Shek Members’ votes were excluded. As Ms Lau acknowledges, nobody would know the answer at this stage. However, it seems to me that the premise of the question posed by Ms Lau is that the 24 Shek Members are members of the Wui. This is the first question identified in the 2nd Plaintiff’s skeleton submissions, and is not a proper question to ask when considering whether or not there is a serious issue to be tried as I have explained earlier.
14. For all of the above reasons, I am unable to agree that there is a serious issue to be tried in relation to the three questions identified by the 2nd Plaintiff.
15. Given that the 2nd Plaintiff has not identified any serious issue to be tried, it is unnecessary for the court to proceed to consider the remaining considerations on adequacy of damages and balance of convenience.
A2. Material Non-Disclosure
16. For the sake of completeness, I will very briefly deal with the Defendants’ contention that there were material non-disclosures in the application before the Ex Parte Judge.
17. The Defendants submit that there are two matters which the Plaintiffs should have drawn to the Ex Parte Judge when seeking the ex parte Injunction. The first is that the Plaintiffs have never asserted a claim of interest in the Wui, and have only asserted interest in part of Lot 764 only. The second is that the Plaintiffs failed to adduce sufficient evidence in relation to their allegation that they were in receipt of income from the Wui. For the purpose of disclosing material facts in an ex parte application, material facts are those which it is material for the judge to know in dealing with the application as made. I have considered the nature of the information which the Defendants say ought to have been disclosed. Whilst it would have been more complete for the Plaintiffs to have disclosed them, I would not have categorised them as material facts which must be disclosed.
A3. Conclusion on Summonses on Injunction
18. For the reasons given, I conclude that the Injunction should be set aside.
B. SECOND PLAINTIFF’S JOINDER APPLICATION
19. I now deal with the 2nd Plaintiff’s summons dated 19 January 2026. In this application, the 2nd Plaintiff asks for leave to amend the Writ to change some of the reliefs sought, and to add three additional plaintiffs in these proceedings, namely (1) Man Whi Chung, (2) Man Pak Wan Paul and (3) Man Lee Keung, Man Whi Chung and Man Wai Kwong, as the managers of ‘Kuen Ping Tso’.
20. There are two aspects in this application. The first involves changing the reliefs sought in the current proceedings. The second involves joinder of parties. I deal with the latter first.
21. An application to have additional parties added as new parties to an existing action is governed by RHC O.15 r.6(2). In the present case, it is the 2nd Plaintiff who makes the application of joinder, and not the 3 intended plaintiffs. None of the 3 intended plaintiffs has given any written consent pursuant to O.15 r.6(4). I do not accept that signing of the statement of truth by the 3 intended plaintiffs at the end of a draft statement of claim would satisfy the requirement of providing written consent to be joined as additional plaintiffs in these proceedings.
22. Further, and in any event, it is well-established that the court will not give leave for the joinder of parties where to do so would increase rather than prevent a multiplicity of contested proceedings contrary to the purpose of the rule: Hong Kong Civil Procedure 2026 Note 15/6/1. Insofar as two of the intended plaintiffs allege that they are members of the 24 Shek Members and wish to have their rights determined in such capacity, I see no reason why they cannot apply to be joined as co-respondents in HCMP 1041/2024, just like what the 1st, 3rd, 4th and 5th Plaintiffs in these proceedings have done. In fact, the proceedings in HCMP 1041/2024 were commenced by the Defendants on 18 June 2024. Prior to the issue of proceedings, the Defendants’ solicitors published in different Chinese newspapers in Hong Kong, US, Europe and Canada a notice inviting persons having claim of interest in the Wui (including the 24 Shek Members) to participate in the proceedings. There is no evidence as to why the 2 intended plaintiffs who allege to be members of the 24 Shek Members did not apply to be joined in HCMP 1041/2024. The 2nd Plaintiff submits that the intended plaintiffs have the right to choose the forum to litigate their claims. However, this is not an absolute right and the intended plaintiffs should not be allowed to start a new claim when their disputes can be resolved in an existing pending action.
23. Accordingly, the joinder application must be dismissed.
24. As far as the 2nd Plaintiff’s application to amend the reliefs in the Writ is concerned, I note that the proposed additional reliefs only relate to the purported rights and entitlements of the 24 Shek Members in the Wui. One of the issues in HCMP 1041/2024 is whether “the share of interest of and in the Wui … also include the aggregate of persons, tsos and tongs holding interest of another 24 Dams [i.e. the 24 Shek Members] in (i) Lot 764 (and Lot 764RP); or (ii) the Wui”. In my view, it is inappropriate for the 2nd Plaintiff to seek to litigate the same or similar issues in parallel proceedings in the present action. Further, there is in my view no sufficiently good or cogent reason as to why the 2nd Plaintiff has not applied to be joined as a co-respondent in HCMP 1041/2024 to determine the extent of his rights in the Wui as a member of the 24 Shek Members, just like what the 1st, 3rd, 4th and 5th Plaintiffs have done. The 2nd Plaintiff suggests that because there are factual disputes to be resolved, he considers that it is inappropriate for the relevant issues to be determined in HCMP 1041/2024. It seems to me that this is the wrong approach. When the 2nd Plaintiff already knows that the issues which he desires to be resolved are raised in HCMP 1041/2024, it seems to me that it is incumbent on him to be joined in those proceedings and raise with the court seized of the matter any difficulties he perceives to be encountered in the pursuit of such proceedings.
25. For these reasons, I dismiss the 2nd Plaintiff’s application for amendment and joinder.
C. DISPOSITION
26. For all of the above reasons, I set aside the Injunction. I dismiss the 2nd Plaintiff’s summons dated 15 January 2025 for continuation of the Injunction and his summons dated 19 January 2026 for amendment and joinder.
27. I also dismiss the Defendants’ summons dated 9 January 2026 with which the Defendants indicated that they would not pursue. The Defendants accept that they are liable to pay to the 2nd Plaintiff the costs of and occasioned by their summons. Although the 2nd Plaintiff asks for costs on an indemnity basis, I do not think that the circumstances make it appropriate for the costs to be taxed on a higher basis.
28. I will now hear the parties on costs of the 3 live summonses.
[Submissions on costs]
29. I make an order that the costs of and occasioned by the 2nd Plaintiff’s summons dated 15 January 2025 and the Defendants’ summons dated 15 January 2025, including those of the hearing on 17 January 2025, are to be paid by the 2nd Plaintiff to the Defendants, without a certificate for two counsel, to be summarily assessed.
30. As to the Defendants’ summons dated 9 January 2026 and the 2nd Plaintiff’s summons dated 19 January 2026, each party did not get what it wanted. I make no order as to costs in relation to those two summonses.
[Submissions on summary assessment]
31. Adopting a broad-brush approach, I summarily assess the Defendants’ costs occasioned by the 2nd Plaintiff’s summons and the Defendants’ summons both dated 15 January 2025 at HK$800,000.
| |
(Eugene Fung) |
| |
Judge of the Court of First Instance |
| |
High Court |
Ms Lorinda Lau and Mr Alvin Cheng, instructed by Alex To & Co. Solicitors, for the 2nd Plaintiff
Mr K M Chong and Ms Vivian Li, instructed by Samuel Chow Solicitors, for the Defendants
[1] It is common ground that the Wui has adopted and still adopts the Chinese traditional agricultural units of weight (such as Shek (石) or Dam (擔), Dou (斗) and Sing (升)) to measure the size of land and an owner’s interest in his land.
|