GOLDRISE INVESTMENT LTD v. MAK WAI KWAN ANTONIO

DCCJ 3650/2025

[2025] HKDC 1589

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3650 OF 2025

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BETWEEN

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DECISION

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Introduction

1.  The plaintiff filed an inter-parte summons on 30 June 2025 (“the summons”) seeking:

(a) a mandatory injunction that the defendant doth remove the items that he placed or caused or allowed to be placed in the passageway outside stalls 33B, 34, 20A, 35 and 19 and the loading bay of the market situated at Ground Floor of Kwai Chung Shopping Centre, Kwai Chung Market (“the trespassed areas”) [the area hatched black in Annexure A];

(b) further or in the alternative, a prohibitory injunction to restrain the defendant from using, occupying or enjoying the trespassed areas except in the form of the right of way or right to use the trespassed areas that is common to visitors of the market;

(c) a declaration that the defendant has no right whatsoever to use, occupy or enjoy the trespassed areas except in the form of the right of way or right to use the trespassed areas that is common to visitors of the market;

(d) a declaration that the defendant failing (a) and (b) above, the plaintiff is entitled to remove any items placed by the defendant in the trespassed areas and to be reimbursed by the defendant for the expenses so incurred.

2.  At the call-over hearing on 4 July 2025, I declined to grant an interim-interim injunction and gave directions for the parties to file their respective affidavit in opposition and in reply.

3.  On 16 July 2025, the plaintiff filed another summons for summary judgment.

4.  At the hearing on 29 August 2025, Miss Sharon Ng, counsel for the plaintiff, accepted that the application was pre-mature as the defendant has not yet given notice of his intention to contest. I gave leave to the plaintiff to withdraw the said summons with no order as to costs.

5.  As counsel’s submission and the authorities are in English, this decision is written in English. If in need, the defendant may request oral interpretation of this decision by a court interpreter.

Legal principles on grant of interlocutory injunction

6.  The essential principles concerning the grant of an interlocutory injunction have been set out in the leading English authority of American Cyanamid Co v Ethicon Ltd [1975] AC 396. The House of Lords held that the requirements were first “that there is a serious question to be tried” and second “that the balance of convenience lies in favour of granting an injunction”: see Hong Kong Civil Procedure 2025 Vol 1 at 29/1/8.

7.  Deputy High Court Judge Keith Yeung SC (as he then was) in Interactive Media Network (China) Holdings Ltd v Just Media Group Limited and others [2018] HKCFI 1114 has helpfully highlighted the guiding principles:

“28. The following guiding principles explained by Lord Diplock at page 408 of American Cyanamid are also relevant:

“… So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

As to that, the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.

Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.””

8.  Ma J (as he then was) in Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 at paras 11-12 explained the court’s approach in dealing with interlocutory mandatory injunction and prohibitory injunction:

“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:-

(a) 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.

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

(c) 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.

(d) 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).

(e) 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.

(f) 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.”

(g) 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.

(h) 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.

(i) 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.”

The plaintiff’s grounds

9.  The plaintiff is the tenant of the premises known as Market on the Ground Floor of Kwai Chung Shopping Centre, Kwai Chung Estate (“the Market”) with the Housing Authority as the Landlord since 2003. The plaintiff as the tenant of the Market is obliged to provide various services and commodities and to ensure safe and smooth operation of the Market.

10.  In exercise of the obligations as the tenant, the plaintiff entered into a licence agreement with the defendant on 31 January 2024 for the use of Stall No 34 of the Market. By a further oral licence agreement in late August 2024, Stall No 20A was also licensed to the defendant.

11.  Since around June 2024, the defendant placed various goods and chattels along the passageway outside Stall Nos 33B, 34, 20A, 35 and 19 without the plaintiff’s authorization.

12.  The occupation of the trespassed areas by goods was throughout the business hours of the Market and overnight. The bags or parcels are large and bulky and at times stacked above human height, creating obvious hazard to users of the Market. The width of the passageways were reduced substantially so that it caused difficulties for visitors who are visually impaired and those on wheelchair to use.

The defendant’s opposition

13.  The defendant said he is operating a pickup point. By the nature of his business, there must be goods in and outside his stalls. However, he did clear up the goods everyday. During the business hours, he did not trespass the space intentionally.

14.  In respect of the photographs exhibited by the plaintiff, he said the time stamps were not clearly shown. He cannot rule out that they were taken when the goods had just arrived or when the shop keepers were about to move the goods into the stalls.

15.  The defendant said the loading bay belongs to the government, he as a tenant has the right to use for unloading goods.

16.  The defendant further said that it is his understanding that the stall owners of all markets in Hong Kong are allowed to use an area of about 3 square metres outside the stall.

17.  The defendant alleged that the plaintiff is attempting to do business with his suppliers directly. He suggested that the plaintiff is harbouring a motive to drive him out of the business.

18.  At the hearing, the defendant said the plaintiff allowed him to operate in a “Morning operation and evening demolition (朝行晚拆)” mode, which means that he can place the goods outside his stalls during business hours but he must put them back in his stalls thereafter. He explained that because of his thriving business, he would operate at times up to 3 am. That explains why goods were seen outside his stalls as late as 9 pm.

Serious question to be tried

19.  Judging from the parties’ respective case, there is no doubt that there are serious questions to be tried, namely, whether the defendant has trespassed the trespassed areas and if so, whether it was with the consent of the plaintiff.

20.  Nevertheless, Miss Ng went further to submit that where there is no arguable defence and the claim for an interlocutory injunction is justified, there is no question of balance of convenience or adequacy of damages, citing Yeko Trading Ltd v Chow Sai Cheong Tony [2000] 2 HKC 612 and Home Expo (Hong Kong) Limited v International Trademart Company Limited, HCA 1183/2014, 11/7/2014, unreported.

21.  In Yeko Trading, Chung J having formed the view that the defendants had not shown an arguable defence, accepted that based on the English authorities of Manchester Corp v Connolly & Ors [1970] 1 Ch 420 (a pre-American Cyanamid decision) and Official Custodian for Charities v Mackey [1985] 1 Ch 168 (a post-American Cyanamid decision), there is no need to consider the issue of balance of convenience provided that the plaintiff’s claim for an injunction order is justified if it should succeed in proving its claim.

22.  The principle was also applied by L Chan J in Home Expo.

23.  From the photographs taken by the plaintiff, it can be seen that bags of different sizes were placed in the trespassed areas at different times of the day and as late as after 9 pm.

24.  The defendant put up 3 objections.

25.  He firstly said that the time stamps in those photographs were not clearly shown, they could be intentionally taken when the goods had just arrived or when the shop keepers were about to move the goods into the stalls.

26.  The time stamps on all the photographs are in fact clearly shown. Further, the bags were stacked along both sides of the passageway, they do not seem to have been just arrived or were about to be moved into the stalls. I see no force in the first objection.

27.  Secondly, the defendant said he as a tenant has the right to use the loading bay which belongs to the government.

28.  The function of the loading bay is of course for the loading and unloading of goods. Goods are meant to be moving in and out of the loading bay and should not remain in there longer than necessary. Otherwise, the operation of the loading bay would be hindered if not stifled.

29.  From the photographs taken by the plaintiff, pallets piled up with goods occupied more than half of the width of the loading area at different times of the day ranging from 10:04 am to 9:56 pm. The placing of goods in the loading bay in such manner cannot be said to be normal.

30.  Thirdly, the defendant alleged that he was allowed by the plaintiff to operate in a “Morning operation and evening demolition” mode.

31.  It goes without saying that the permission may either be given in writing or orally. However, no particulars of either the document evidencing the permission or the person giving such permission was provided by the defendant.

32.  In any event, it is quite clear that the goods were placed outside the defendant’s stalls continuously. From the volume of the goods as shown in the photographs, it is not physically possible that they can all be put into the defendant’s stalls.

33.  Finally, the defendant suggested that the plaintiff was intending to do business with his suppliers directly and therefore wanted to drive him out of business.

34.  Suffice it to say, even if the defendant’s suggestion is established, it does not exonerate the defendant from committing a breach of the licence agreements with the plaintiff.

35.  From the above analysis, I am of the view that the defendant has not shown an arguable defence.

Balance of convenience

36.  I am indeed bound by the decision in Yeko Trading. By reason of my conclusion above, there is no need to consider the issue of balance of convenience.

37.  For the sake of completeness, however, I would briefly deal with the issue.

38.  Due to the occupation by the goods, the width of the passageways is greatly reduced. As such, inconvenience is caused to visitors of the Market. Worse still, visitors on wheelchair or with visual disability would have difficulties passing through. In case of fire, the goods would very likely be an added obstruction to the escape route. Viewed in this light, the plaintiff would certainly not be adequately compensated by damages in the event of succeeding after trial.

39.  On the other hand, the loss the defendant may have suffered by the grant of an interlocutory injunction is monetary in nature. The defendant would be adequately compensated in the event of succeeding after trial. As the operator of the Market, the plaintiff should be in a financial position to pay such damages.

40.  Accordingly, if the balance of convenience comes into question, the plaintiff is still entitled to an interlocutory injunction.

Conclusion and order

41.  By reasons of the foregoing, I am driven to the conclusion that the plaintiff is entitled to an interlocutory injunction.

42.  Paragraphs 3 and 4 of the summons are seeking declaratory reliefs, which of course is pre-mature at the interlocutory stage.

43.  The plaintiff is only entitled to have an interlocutory injunction until trial or further order. Subject to that, I would make an order in terms of paragraphs 1 and 2 of the summons of which they are not in the alternative.

Costs

44.  I make a costs order nisi that the defendant shall bear the plaintiff’s costs of this application with certificate for counsel, to be taxed if not agreed.

45.  Unless an application for variation by letter is made within 14 days from the date of this decision, the costs order nisi shall become absolute.