KAI SHING MANAGEMENT SERVICES LTD v. YUK YUN KIT AND OTHERS

LDBM 240/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 240 OF 2014

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J U D G M E N T

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1.  The Applicant is the Estate Manager of Palm Springs, Wo Shang Wai, Yuen Long, New Territories (“the Development”), appointed under the Principal Deed of Mutual Covenant (“the Principal Deed”) and Management Agreement for the Development. The Notice of Application taken out on 28 August 2014 is for an order against the owner of House No. 26 Pinaceae Drive in Spring Palm (“House No. 26”) that dogs and cats now being kept therein be removed as allegedly the manner they have been kept caused the prohibition under Clause 5.19 in the Sub-Deed of Mutual Covenant of the Development (“the Sub-Deed”) to be invoked.

2.  There were complaints received since 2012 that dogs and cats kept in House No. 26 had been causing nuisance to owners of House Nos. 22, 28 and 30 Pinaceae Drive, House No. 2 Gmelina Path and Houses Nos. 17 and 19 Hisbiscus Path.  The complaints included barking of dogs non-stop day and night, noise of cats at night, cats’ hair flying over to their place, foul smell of cats and dogs and their excretion emitted from House No. 26 and mishandling of pet food causing rats problem.  Some said that the smell was so bad that windows of their houses could not be opened and they could not enjoy sitting out in their garden.

3.  The Respondents, co-owners of House No. 26,do not dispute that they have been keeping dogs and cats since 2001.  From a letter dated 21 October 2013, the Respondents said that the animals were abandoned by their owners and they were kept in House No. 26 pending transfer to other families.  Ms Li Pui Sheung (“Ms Li”), who represented the Respondents and being called as their sole witness said that the highest number of cats and dogs kept by them was 10 each at any one stage.  She said that as at trial date, there were 10 dogs and 8 cats being kept inside House No. 26.  When asked about her plan as to for how much longer these cats and dogs would be kept, her answer was in gist unless she could find a family who would provide better care for the cats and dogs the Respondents would continue to keep them. 

Clause 5.19 of the Sub-Deed

4.  It is not disputed that the relevant provision governing the conduct or behavior of the owners when keeping dogs and cats is Clause 5.19 of the Sub-Deed:-

Clause 5.19:
 
“No Village Owner of a Residential Unit shall keep or harbour any dog, cat… or other animals in any part of his Unit if the same has been the cause of reasonable complaint by at least two Owners or Occupiers in any part of the Estate or if in the opinion of the Manager, the same is causing a nuisance to the Owners of the other Units.”

5.  On the interpretation of Clause 5.19,  the Respondents took the stance that it is for the Applicant to prove either that there had been reasonable complaints from 2 owners or occupiers or that in the opinion of the Manager the same is causing a nuisance to the owners of the other houses.  The difference between parties is what would amount to nuisance in the circumstances of the present case.

Issue to be Determined by the Tribunal

6.  According to Ms Chan, counsel for the Applicant, the two key issues in the present case are:-

(i)	Whether the complaints received against cats and dogs in House No. 26 are reasonable;
(ii)	Whether the Applicant as the manager of the Estate is correct in forming the opinion that there have been nuisance caused by the cats and dogs in House No. 26.

7.  In my judgment, the two issues in fact hinge upon the same factor i.e. nuisance.

Evidence

8.  The Applicant called 4 witnesses during trial, they were namely:-

(i)	Mr Lau Chin Pang Patrick, Manager of the Applicant (“Mr Lau”),
(ii)	Mr Lam Yu Kit,  Estate Officer of the Applicant (“Mr Lam”),
(iii)	Ms Liu Man Wai Shirley (“Ms Liu”), owner of House No. 22 Pinaceae Drive (“House No. 22”), and
(iv)	Mr Yeung Wing Hang (“Mr Yeung”), owner of House No. 19 Hibiscus Path (“House No. 19”).

Mr Lau of the Applicant

9.  Mr Lau is the Property & Facility Manager of the Applicant.  There is no dispute that as the DMC Manager the Applicant has the duty and also power to enforce the terms therein and to take out litigation.  In his witness statement Mr Lau said the Applicant had since 2012 received complaints about dog barking and foul odour of animals and their excrement from owners of other houses in the Development.  There were complaints received from 5 houses.  They are all close to House No. 26:-

(1)	Joint letter dated 23 June 2012 from the residents of Houses No. 22 (Ms Liu’s), 28, and 30 Pinaceae Drive and 2 Gmelina Path;
(2)	Letter dated 3 December 2012 from the resident of 17 Hibiscus Path;
(3)	Letter dated 5 October 2013 from Mr Yeung;
(4)	Letter dated 21 October 2013 from Ms Liu;
(5)	Letter dated 27 September 2014 from Ms Liu;
(6)	Letter dated 24 October 2014 from Mr Yeung; and
(7)	Letter dated 26th November 2014 from the resident of 30 Pinaceae Drive.

10.  He said that apart from written complaints, the Applicant had also received similar complaints made by telephone call.  Such complaints were recorded in management records (“the Log Book”).  To follow up the complaints, Mr Lau sent warning letters to the Respondents on 16 and 30 November 2012.  Lawyers acting for the Applicant also sent letters to the Respondents on 11 January, 30 May and 24 September 2013.

11.  Mr Lau said that by letters dated 1 June 2013 and 21 October 2013 to Applicant’s lawyer, Ms Li admitted that they had been keeping dogs.  She said efforts had been made to have the dogs adopted by other families.  She also said that they had taken measures to reduce noise from barking such as by installing soundproofing materials, muzzled the dogs when necessary and asked their domestic helpers to improve the cleanliness inside the house and the garden.

12.  According to Mr Lau, these measures did not improve the situation as the Applicant continued to receive complaints.  To follow up the complaints he had visited the houses to verify the situation but he could never enter House No. 26.  He had talked to the owners involved and tried to work out solutions.

13.  According to Mr Lau, from the record, the Applicant had made visits on the following incidents in 2014:-

(1)	On 3 March 2014 and 7 March 2014, in response to a complaint from House No. 19 Mr Lau went down and confirmed that there was indeed dog barking from House No. 26.  The sound was loud and at least 5 dogs were seen barking at the same time.
(2)	On 29 May 2014, there was an immobile cat found between Houses Nos. 30 and 32 Pinaceae Drive which had to be taken away.
(3)	On 30 May 2014, Mr Lam, found that two black cats had come over from the roof of House No. 26 into the roof of House No. 30.  He also confirmed that he found three kittens on the roof of House No. 30.
(4)	On 15 August 2014 at around 10:15 am, after a complaint from House No. 19, Mr Lam went over and found two dogs barking on the first floor balcony of House No. 26.  At around 5:10 p.m., House No. 19 complained about barking again.  Mr Lam went over and found one dog barking at the garden of House No. 26.

14.  When being cross-examined, Mr Lau was asked whether he had carried out some objective and scientific test on the odour.  Mr Lau said he did not but only relied on his nose to tell.  He said he knew not of any device to measure odour.  He said that he was tolerant to animal smell as he was keeping 6 cats in his own home.  He however found that the odour emitted from House No. 26 serious as he could smell strong odour when he was at House No. 19 over-looking on House No. 26.

Mr Lam of the Applicant

15.  Mr Lam is Estate Officer of the Applicant.  He received complaints from owners of houses near House No. 26 about dog barking and strong animal odour emitted therefrom.  There were also complaints about rats found near House No. 26.  He had paid visits to House Nos. 19 and 22 and the nearby area to make investigation into the complaints.  He took 3 video clippings on House No. 26 from backyard of House No. 19 in June 2015.  They were all taken at the same spot but on different dates.

16.  During his inspection on 12, 18 and 19 June 2015 from the garden of House No. 19, he saw the windows of House No. 26 were all along open.  He also took a photograph on 9 June 2015 showing that the windows of House No. 26 were opened.

17.  Mr Lam referred this Tribunal to another photograph taken on 12 June 2015 showing a glass structure on the roof of House No. 26 (“the Glass Structure”).  He said that it could be seen that the Glass Structure was not completely enclosed.  The plastic board on the glass door was damaged and big holes on it could be seen.  Even if the front glass door is closed, the smell of cat excrement and cat fur could still come out from inside.  During his observation, there was all along a foul smell emitted from the roof of House No. 26.  He believed it was a smell of cats and their excrement.

18.  Mr Lam also said that at around 10 a.m. on 6 July 2015, he received a telephone call from Ms Liu complaining that there was a foul smell from House No. 26.  Upon arriving at House No. 22 at around 10:02 a.m. he found foul smell from a shared trapped gully (共用隔氣) located in the back garden of House No. 22.  The trapped gully was shared by House Nos. 22 and 26 only.  In the witness box, he added that House No. 26 was situated at a slightly higher level and therefore water gathered from House No. 26 would pass through the trapped gully at House No. 22 before being discharged to the drainage system of the Development (Photograph of the shared trapped gully produced at B/146-1).

19.  When being cross-examined Mr Lam admitted that he did not use any scientific method or device to measure the noise or sound bite of the barking.  He admitted that he took video with his cell phone which did not provide any device to show the source of the noise.  But he said he was sure that the noise came from House No. 26 as he was standing very close to it and he could see dogs barking inside.  When asked by the Tribunal, he said the barking at scene was noisier than what could be heard through the video played at the hearing.

20.  During the course of their site inspection on various dates, Mr Lau and Mr Lam have taken photographs and videos for record, including:-

(i)	Photos taken in around September to October 2012 showing more than 10 dogs and their excretion lying on the ground inside the garden and a structure which was not authorized (“the Temporary Structure”) of House No. 26, a number of cats and their excretion inside the Glass Structure [B/133-138];
(ii)	3 photos taken on 15 August 2015 showing dogs looking out from House No. 26 [B/91];
(iii)	A video taken at the garden of House No. 19 on 16 June 2015 overlooking to House No. 26 showing dog barking although dogs could not be seen [B/102](referred to as video (a) during trial);
(iv)	A video of dog-barking noises from House No. 26 taken on 8 July 2015 showing barking noises of more than one dog and the image of at least one dog [B/146-10] (referred to as video (b) during trial);
(v)	A video of dog-barking of more than one dog from House No. 26 taken on 11 August 2015 at least one dog could be seen inside the Temporary Structure [B/146-10] (referred to as video (c) during trial);
(vi)	A photo taken on 28 August 2015 of a damaged plastic board on the glass door of the Glass Structure of House 26 [B/146-2];
(vii)	A photo taken on 28 August 2015 showing 3 cats inside the Glass Structure of House No. 26 [B/146-3]; and
(viii)	4 photos showing the hair-clogged ditch and its location on 1st Floor balcony of House No. 22 [B/146-7, 146-8].

Ms Liu, Owner of House No. 22

21.  Ms Liu is the owner of House No. 22 which is immediately next to House No. 26.  There is no House No. 24 perhaps due to certain belief of the Chinese.  Ms Liu has filed 3 witness statements.  She said she had sent 3 letters and a number of telephone calls to the Applicant complaining about dog barking and nuisance caused by cats between 2012 and 2013.  In fact the first letter of complaint was signed together with some other owners nearby.  In her 2^nd witness statement she produced 6 videos shooting over the garden of House No. 26.  They were taken from her house.

22.  It was her evidence that at once stage she saw 30 dogs inside of House No. 26.  She saw also many cages at one time (in one of her complaint letter she complained of maltreatment of dogs and cats as they were kept in cages and left unattended).  She and her husband were disturbed by the barking and odour of these dogs.  They were awakened by barking for about 10 nights in a month.  They did not know why they barked.  But whenever people came close to House No. 26, they barked.  Even if they came back or leaving home, the dogs in House No. 26 would bark.  Normally they continued barking for half an hour.  During the time of barking, she had never on one occasion heard anyone inside House No. 26 stop the noise.  She said that the number of dogs had aggravated the barking problem because when one barked the others followed.

23.  As to the foul odour of the dogs, she said they had to keep the windows closed to avoid odour coming into their own house.  Still she could not sit in the sitting room not to mention the garden.  She had to stay in the dining room for reading with the window in the kitchen opened for air as it was further away from House No. 26.  They could not entertain friends at home because of the foul odour.

24.  She said that the cats were also noisy and smelly.  They were kept in the Glass Structure.  Her maid stayed in a structure at the roof and she complained that the cats were noisy.  She added that the cats did not disturb her sleep because she did not hear the noise from the Glass Structure inside her bedroom.  But she heard that they made noises especially at certain time of a year.  Her maid who slept in a structure on the roof was annoyed by the noise of the cats.  The maid also complained about fur blown over to the laundry being dried on the roof.

25.  She said in the morning of 6 July 2015 she found a strong foul smell from a trapped gully shared between House Nos. 26 and 22 situated in her garden.  She described the smell as not like one of ordinary sewage stink but a mixed smell of animal and their excrement.  She called the management and Mr Lam came to her house.  She said that after some inspection, Mr Lam advised her that the shared trapped gully was to collect water from the gardens of House Nos. 22 and 26 and to divert them away.  Water from House No. 26 would however pass through House No. 22 because the former was built on a slightly higher level.

26.  In the afternoon of 28 August 2015, she noticed a strong smell of animals from House No. 26, such smell found its way into her house through the garden.  She took a look over to House No. 26 and saw 4 big dogs inside the Temporary Structure.  She made a complaint to the Applicant by telephone and sent a photo over by whatsapp.  Mr Lam then came over to House No. 22 to make investigation on what was going on in House No. 26.  During the investigation, Ms Liu was with Mr Lam.  Ms Liu found a large amount of animal hair at the drain at the balcony of the 1^st floor.  She learned from the maid that the balcony had just been cleaned the day before.  She said she had instructed the maid to clean the balcony frequently as there was a flood on the ground floor caused by blockage of the drains with animal excrement from House No. 26 before.  She said that the hair came from House No. 26.

27.  When she was cross-examined, it was put to her that her complaints about the odour and the barking of dogs were exaggerated especially her complaint about barking at midnights was not supported by complaint letters or video-taping.  She denied all the allegations put to her.  She said that it would take a lot of effort to make a video-taping.  If her husband was not awakened by the barking, she would not take video as it would wake him up.  She also denied that the hair found at the drain on the 1^st floor balcony belonged to her dog.  She said that her dog never went outside to the balcony or the garden.  Further the hair seen was of many different colour and they did not resemble that of her dog.  The position of the hair showed clearly that it came from inside of the drain and not outside.  She believed the hair belonged to those dogs and cats kept in House No. 26 but carried over to the drain at her balcony through a common drainage pipe.

Mr Yeung, Owner of House No. 19

28.  Mr Yeung is the owner of House No. 19 which is behind House Nos. 22 and 26.  In fact the gardens of the 3 houses are connected with each other except there are barriers built to separate them.  The barriers are made of low concrete walls and iron bars on top.  Mr Yeung said this is his holiday house where he spent the weekends. His complaint was about noise and smell of animals kept inside House No. 26.  In his witness statement he said there were over 30 dogs inside House No. 26.

29.  He said that the dogs barked day and night especially when there were movements in the vicinity or any change in the environment, for example, they would bark when he turned on the lights in his own house or when he or his family entered into the garden.  They barked when they saw shadows in his house.  He never heard anyone stopping the dogs to bark.

30.  As the garden of House Nos. 26 and 19 are back to back with no building in between, the odour of the animal and their excrement made him sick if he entered into his garden.  He said smell of cats and dogs are different so he could tell the foul smell were from cats and dogs.

31.  In cross-examination. Mr Yeung said he made a lot of complaints in 2012 for at least 2 times a week.  In 2013 to 2015 he called 4 times a week to complain about the barking of the dogs and the smell.  There were also written complaints from him.  He further said that the smell was so strong that it went all the way to the front of his house facing Hibiscus Path.  He could not go out to the garden or the sidewalk without wearing a mask.

32.  In summer time the foul smell became even stronger.  First the hot weather made animals become smelly.  Further when the air-conditioners of House No. 26 were switched on, the odour became even stronger when they came out from the ventilation and blew to his house.  Their garden became very smelly.  If the air-conditioners of his house were also switched on, the strong odour would come into the house with the air taken in through the ventilation.  The house would then be full of animal smell.  So they could not switch on the air-conditioners when they felt needed. His family members felt the same.  The bad smell seeped through the house and went to the main entrance at the far end if they did not close the windows and doors tight.  Inside the house he could only stay in the sitting room and the master bedroom as these were the places less affected by animal odour.  

33.  Mr Yeung also said that he could tell that the Respondents would wash the garden more thoroughly before he returned to the house for weekends.  But the stink was still there.  He still could not stay in the garden to enjoy.  He would watch the dogs when he was there.  He would watch them for about 10 minutes from his garden when he did some gardening work.  He also watched them from his bedroom. He saw that people in House No. 26 washed the place with water hose.  And during weekdays when they did not know he was going back they would not clean the place. 

34.  It was put to him also that he was exaggerating in his evidence, that not all the complaints mentioned by him were logged.  He denied that he was exaggerating as what he had now told the court could be seen in his complaint letters.

Evidence of the Respondents

35.  The Respondents called one witness and that was Ms Li.  During examination-in-chief.  She said she stayed in House No. 26 with Madam Yuk, the other Respondent.  She said that there are 10 dogs and 8 cats kept in House No. 26 at present.  The maximum number of dogs that she had ever kept in House No. 26 was 12.  As to number of dogs she had kept, she added under cross-examination that she had kept 10 dogs in 2010, 2012 and 2013 respectively.  She said they treated pets as friends.  She said that she did not pick up the unwanted cats and dogs but they were given to her by friends or left by her doorways.  According to Ms Li’s witness statement, the Respondents had all along been identifying suitable families to adopt these cats and dogs.  A number of adoptions had been successfully implemented over the past years.  Potential families are being actively pursued.  Under cross-examination, she however said that the number of dogs remained the same between 2012 and 2015.  She once said that the dogs would not be given away.  When she was challenged with what she had said in the witness statement, she said she would only give them away when a suitable family is found.  She said she last took in dogs in 2010 but she gave away 5 before 2010.

36.  The existence of the Temporary Structure was not denied.  It was attached to the house with the house.  That means, the exit of the house to the garden now opens inside the Temporary Structure and at the other side of the Temporary Structure there is an exit open to the garden.  The size of the Temporary Structure is substantial.  From the photographs, it took up a good portion of the garden.  The height of it almost reached the 1^st floor or the ceiling of the ground floor.  Aletter had been sent by the Building Department to the Respondents in about June 2015 asking them to remove the unauthorised structure inside House No. 26 including the Temporary Structure, the Glass Structure and a structure at the first floor balcony.

37.  Ms Li basically denied the allegation of nuisance caused by animal keeping inside House No. 26. She said that the dogs mainly stayed indoor and she would not allow them to go into the garden.  Under cross-examination, she said the dogs were in fact staying inside the house most of the time as opposed to the allegation that they were kept in the Temporary Structure.  She said the Temporary Structure was built for the Respondents when they moved in 1996 and not for the dogs.  The dogs seldom went into the Temporary Structure to stay.  It was only when the floor inside the house was to be washed, they went to the Temporary Structure.

38.  It was also her evidence that to abate noises, the Respondents had installed sound resistant EVA foam materials inside House No. 26.  Where necessary, dogs were put on muzzles.  Further, a glass door was installed in the backyard garden to reduce noises.  She agreed that the dogs might bark at 1 a.m. or 2 a.m.  She said one could not control what time they bark.  They bark only once or twice, and not that all dogs would bark together.  She said when they barked, she would ask them not to if she was home and they would stop immediately.  When she was asked whether she would go and stop the dogs even if they were barking on different floors.  She said the dogs on ground floor seldom bark and she did not hear dogs barking on the ground floor from her bedroom.  She said normally 4 slept on the 1^st floor and 6 slept on the ground floor.  She also said that there were dogs being kept in the neighbourhood and the Applicant had failed to prove the source of barking.

39.  Video clippings were shown to her during cross-examination.  After viewing clipping (a), she said she heard dog bark but not sure they were her dogs.  She said other owners had dogs as well.  When Mr Yeung’s case on barking when lights were turn on in his house was put to her, she said she did not know and had no idea about which house Ms Chan was talking about.  After video clipping (b) and (c) were shown to her, she said she was not sure whether they were her dogs barking.  She said that she was not there when the video clippings were taken.

40.  Video clippings taken by Ms Liu were played during cross-examination, she said the barking dogs seemed to belong to her but they barked because they were triggered.  They were triggered because they saw a hand at the window.  After seeing clipping (3), she disagreed that the dog barking came from her house.  She said when the recording was played through broadcast system she could not recognise the voice of her dogs.  After seeing clipping (5), she said she did not know whether the barking came from her house.  After seeing clipping (6), she said she was not sure whether they were her dogs or not.

41.  Regarding odour, Ms Li said that the Respondents had tasked two maids (now one) to step up cleaning of the premises with bleached water three times per day both to the benefit of the neighbourhood and the health of the pets.  Dogs were thoroughly bathed at least once per month during summer and once per two months in winter for hygiene reasons.  Under cross-examination, she said that the dogs were bathed two times a month.  When asked whether she would supervise the work of the maids to take care of the hygiene of the dogs and cats including how and how often their excretion would be cleaned up.  She said she did and some cleaning work would in fact be carried out by herself or by the other Respondents. She said she would be away for work for about 6 hours a day but she would take care of the dogs when she was at home.

42.  When cross-examined, she said that there were 4 containers put inside the sitting room to take the excretion from the dogs.  There were newspapers underneath the containers.  She said that dogs might not excrete into the containers but on the newspapers.  She said that she had trained the dogs to go there when they excreted.  The maid or she herself would clean the place immediately.  She agreed under cross-examination that there were no photographs of such containers produced.  Further she said the dogs would excrete 2 times a day not including urination.  She agreed that there were about 20 times the dogs would excrete in the containers in a day as there were 10 dogs.  She insisted that the place would be cleaned up immediately and the excretion would be wrapped up nicely with newspapers and put inside plastic bags before being thrown away every time after a dog had excreted.  She said the dogs would urinate on the floor, the floor would be cleaned by a mop and a bucket of water.  After mopping clean the floor, she or the maid would throw the water into the toilet.

43.  She said that the incident about foul smell in the shared trapped gully did not happen because as said the dogs would only excrete inside the sitting room near the 4 containers and not on the ground in the garden or the Temporary Structure.  She admitted that she would use a water hose to clean the Temporary Structure and the garden.  She said there were two drains to collect water in the garden.  One is in the garden outside the Temporary Structure near the wall next to the garden of House No. 22, and the other one is in the garden near the wall of House No. 26 which is now inside the Temporary Structure.  She said that water would seldom be collected from the drain near the wall next to House No. 22 because water would flow to the wall inside the Temporary Structure as the ground of the garden is not level.

44.  Further she said that even if they shared same drain with separate trapped gully with House No. 22, it was the situation where water collected from House No. 22 would flow to House No. 26.  Not as what Mr Lam had told the Tribunal.  Moreover, she said no excrement and hair would go into the drainage and be trapped inside because there is a net inside the tapped gully and she would remove hair or other things trapped therein from time to time. 

45.  She once said that when it rained, she would go out to cover the drains so that no rain water would go into it.  She later changed to say that she did not cover the drain when it rained but she would open the drain to remove the clog if any from time to time.

46.  Further she said there could not be any cat fur flying around because the Glass Structure was enclosed.  She denied that the hair found in the ditch of the 1^st floor balcony of House No. 22 belonged to her dogs.  As to the colour of the dogs, she admitted that there are dark colour dogs in House No. 26.  One dark brown, 2 white, 1 beige or almond colour. 

47.  She also said that the photograph at p133 showing more than 10 dogs in the garden was taken long time ago in 2007 and 2008.  She also said that black colour stuff said to be dog excrement lying around on the ground in the garden may be dog food.

48.  About the cats, Ms Li said at the time of trial there were 8 cats.  Every day they would change 2 buckets of sands.  The dirty sand would be taken away a few times a day.  She said she did not know whether the dark colour stuff lying on the ground of the Glass Structure was excretion of cats.  She said it could be food or hair vomited by cats and in that case they would not give out smell.  She agreed that the plastic penal of the Glass Structure was once damaged but that was repaired by August 2015.  Since then there should not be smell, hair or cats escaping from the Glass Structure.  She admitted that she heard from Madam Yuk, the other Respondent, that a cat had once escaped to another house.

Analysis of Evidence

49.  I have gone through the complaint letters written by Ms Liu and Mr Yeung.  I do not agree that it was not mentioned that they had been awakened by dog barking at midnights as suggested by Mr Chan.  Apart from a letter dated 23 June 2013 complaining that there were dog fighting and barking almost every night, there was other letters dated 27 September 2013 (92) and 21 October 2013 (85) saying that Ms Liu was awakened in the midnights as a result of the dogs barking.  Mr Yeung’s complaints at trial were basically supported by his written complaints put in as evidence.  He did mention barking day and night in his letter dated 5 October 2013 (80), 31 December 2013(87) and 24 October 2014 (94).

50.  I viewed the video recordings played at trial.  I heard the barking.  I find that there was more than one dog barking as recorded in those videos most of the time.  I find that the barking was not sporadic.  I heard evidence about the content of the videos. I accept the evidence of the Applicant’s witnesses that they came from those dogs being kept inside House No. 26.  I observed the loudness and frequency of the barking of the dogs through the videos.  In my view the barking had caused disturbance to Ms Liu and Mr Yeung as they described.  I find the complaints of Ms Liu and Mr Yeung reasonable.

51.  As to the odour, I reject the Respondents’ saying that it was necessary to carry out tests with tools or device to measure the smell.  I accept the evidence of all the Applicant’s witnesses.  I found them honest and truthful.  They showed no spite against Ms Li.  The focus of their evidence was on the fact of odour and noise rather than on the person.  I accept the extent of smell as described by them and I accept that Mr Yeung and Ms Liu have been gravely affected by the odour that they cannot open the windows of their houses and they cannot enjoy sitting out in their gardens or part inside their houses.

52.  After Ms Li had concluded her evidence-in-chief, I explored the possibility of a site inspection to resolve certain dispute between parties.  There was however no agreement reached by the parties on the particulars of the site inspection.  The Respondents had indicated that there should be no entrance to House No. 26 because one dog had heart decease and could not have strangers in the house.  This suggestion was not accepted by the Applicant.  I however notice that in the Answer to Further and Better Particulars, Ms Li said that dogs would be put on muzzles if they got excited by visitors going into their house (Answer 11 at page 165).  I find that she was making excuses to refuse site inspection to House No. 26.  Further Ms Li’s request for all curtains in the Temporary House to be drawn to maintain the status quo during site visit could not be accepted by the Applicant as they could not agree that it was the status quo.

53.  Further facts had been agreed by parties.  First the Respondents had refused a site visit to House No. 26 to be made by Mr Lau to inspect whether there was improvement about the matters under complaints in June 2013.  Secondly, the Respondents had refused a site visit by officers of the Food and Environmental Hygiene Department after 26 June 2014.  As a result there was never any site visit made by the Applicant to inside of House No. 26.  From the behavior of the Respondents I am entitled to draw adverse inference on them if necessary.  I would state so in case such situation arises.

54.  I heard Ms Li.  I find that she was evasive as to the number of dogs she had been keeping.  She said she had been treating dogs as friends and even family, she however could not tell in a straight forward manner the number of dogs she had been keeping since 2010.  She gave a different version as to whether the dogs would be given away.  When challenged, she said there was no inconsistency between the two versions as they would only give dogs to good families.  I am of the view that this could not explain the inconsistencies.

55.  I find Ms Li’s saying that the dogs only live inside House No. 26 and not the Temporary Structure unbelievable.  I find that this was said to deal with Mr Lam’s saying in his 2^nd witness statement that the Glass Structure and the Temporary Structure had been made a subject of advice issued by the Building Department for their removal and if they were removed, the cats and dogs would have no place to stay.

56.  Further her evidence on how the excrement of the dogs had been dealt with is incredible.  I find that she made that up only.  She had never mentioned there was a place in the sitting room of House No. 26 for the dogs to make their excrement and that their excrement would be immediately cleaned up in any of her witness statements. Further this is most unbelievable that 10 dogs were trained to make their excretion in the sitting room and not in the garden or the Temporary Structure. There must be more suitable places inside House No. 26 than the sitting room, for example the kitchen or toilets to be made a toilet for 10 dogs.  One could imagine the smell when 10 dogs were to make their excretion inside the house in the sitting room and the effort for the place to be cleaned up every time.  I find this saying unbelievable.

57.  She also said that the dogs were seldom sent to the Temporary Structure.  She did not say why.  But such saying is so unnatural.  The photograph at page 133 showed a more natural scene of the activities of the dogs; some dogs were inside the Temporary Structure and some inside the garden.  Photograph at page 134 showed excrement lying on the ground inside the Temporary Structure.  Two containers could be seen inside the Temporary Structure.  They look more like food containers.  In any event, Ms Li had admitted that none of the photographs showed any of the containers for dogs’ excretion.  The photographs showed that the dogs ate and excreted in the Temporary Structure.  Ms Li said that the photographs in pages 133 and 134 were taken in 2007.  Since complaint starts in 2012.  I find it more probable that it was taken in August 2012 as said by Mr Lau as that was the time the Applicant started to receive complaints.

58.  In any event, as dogs were seen barking at different locations inside House No. 26 for example, the 1^st floor balcony, the sitting room, and the Temporary Structure.  So where the dogs normally stayed is not significant.

59.  Ms Li’s saying that in the videos, if it were her dogs barking it was because they were triggered when the one taking photographs and videos entered into the 1^st floor balcony of House No. 22 or stood by the side of the windows stretching their hands out with the camera.  This in fact supported what Mr Yeung and Ms Liu had said in their witness statements and at trial that the dogs would bark when they saw movements in the neighbouring houses.  Having said that, I am satisfied that Ms Liu only started taking recording when there were dogs barking already.  Same as to Mr Lam.  He went there upon complaint of barking.  Before his arrival the dogs were already barking.  I am satisfied that neither Ms Liu nor Mr Lam had deliberately instigated the dogs to bark and then take recording of them as implicated by Ms Li.

60.  After hearing evidence from all witnesses on the shared trapped gully, I find the evidence of Mr Lam more probable, I accept that water flowed from House No. 26 to House No. 22 because the former was built at a slightly higher level.  Ms Li’s saying is only to serve a purpose to deny the complaint that waste water after cleaning the garden or bathing the dogs flowed from her house to Ms Liu’s.  Even if there was no acceptable evidence on the direction the water flowed, I accept the evidence that there was foul smell emitting from the shared trapped gully as said by Ms Liu and confirmed by Mr Lam.  I find that when waste water was collected from the garden of House No. 26, it would affect House No. 22 as they were so close to each other that the two trapped gully were only on the two sides of the sides of the wall.

61.  In fact I do not accept Ms Li’s saying that water would not flow into the trapped gully but would go into another drain inside the Temporary Structure.  There was nothing to support her saying.  Further, she said that the Respondents had never heard about the incident of foul smell coming out from the trapped gully in House No. 22, I see no reason why she would order her maid not to allow waste water to go into that drain.  There was no such evidence.  I am of the view that it is just natural that one would brush waste water to the nearest drain when cleaning a place.

62.  I also accept that the hair at the drain of the 1^st floor balcony did not belong to the dog owned by Ms Liu because they are of many colour and shades different from that of Ms Liu’s dog.  On balance of probability, they belonged to dogs of Ms Li which went to the drain at the balcony at the 1^st floor through the drainage system of the two houses which was partly connected on floors above ground.

63.  From evidence before me I find that:-

(1)	There were at least 10 dogs kept inside House No. 26 at trial; and there were more than 10 kept in 2013 as shown in the photograph at page 133;
(2)	There were at least 10 cats kept in the Glass Structure on the roof at trial and at one stage there were more than 10 at shown at pages 135, 136 and 137;
(3)	There were excrement of dogs and cats lying around on the ground inside the Temporary Structure, the garden and the Glass Structure on those occasions when photographs at 133, 134, 135, 136 and 138 were taken;
(4)	The ground in the garden and inside the Temporary Structure would be cleaned by water hose and waste water would flow into the two drains including the trapped gully in House No. 26 and gave bad smell from the opening at House No. 22;
(5)	The noise and the smell of the dogs and cats were not tolerable to Ms Liu and Mr Yeung;
(6)	The Applicant had received more than 2 complaints from 3 households; and
(7)	The Applicant did carry out investigation in the noise and odour through Mr Lau and Mr Lam by paying not less than 10 visits to House Nos. 19 and 22 and the nearby area and were satisfied that the complaints were reasonable.

Law on Nuisance

64.  Mr Chan submitted on behalf of the Respondents that in daily language, noises and smell may amount to what common people loosely call ‘nuisance’.  But whether the nuisance is actionable in law is a different matter.  For nuisance to be actionable, it must be a real interference with the comfort or convenience of living according to the standards of the average man in the locality.  The discomfort must be substantial and not merely with reference to the Applicant.  He said that the core issue is therefore: what is real interference in all the circumstances of the case.  He said there is no absolute standard to apply.  It is always a question of fact and degree.

65.  In reply to such contention, Ms Chan said that the Applicant was not suing the Respondents for nuisance under the law of tort.  The cause of action in the present Application is breach of Clause 5.9 of the Sub-Deed on its two limbs.  She said that the noise and foul odour, if proved, amount to nuisance mentioned in the Sub-DMC and substantiated the complaints of Ms Liu and Mr Yeung and in such circumstance, the Applicant is entitled to enforce Clause 5.19.

66.  Ms Chan further said that in considering the reasonableness of the complaints, both objective and subjective test should be adopted.  In considering the objective test one should ask “what is reasonable according to ordinary usage of mankind living in a particular society” (The Incorporated Owners of Fanling Centre v Wong Yu Ting Terence and Tsang Suk Han LDBM 28/2013).  She relied on the following passages in Fanling Centre:

“20.  本案中所涉公契條文B2條的內容，與上述文獻中的條文相似，即阻止任何引致滋擾(nuisance)或煩厭(annoyance)的行為，套用上述文獻的法律原則，相關行為只須令其他住戶不能安心(peace of mind)便可，故此本席在考慮申請人的指控事實是否構成滋擾或煩厭時，無須考慮是否對其他住戶造成身體不適或實際傷害。本席亦認同宜高物業管理有限公司 一案中的裁斷，受影響業戶的憂慮必須為合理。   21.  本席認為，從余女士所述證供，該天線的存在，確實令余女士及家人感到不能安心。該天線在使用過程中收發訊息是不爭的事實，天線在余女士女兒房間近距離的位置，而余女士的女兒曾彌患腦瘤，再加上在收聽收音機時也受天線接收的訊息干擾，余女士及家人擔心該天線在收發訊息的過程中發出電波，會影響他們一家的健康因而不能安心並非不合理，本席認同容法官在 宜高物業管理公司 一案中的裁斷理據，即使余女士未能證明實質傷害或不適，合理的憂慮令余女士及家人不能安心，已足可構成滋擾。   22.  本席裁斷，答辯人在該天台安裝該天線，此一行為對居住在隔鄰的住戶不能安心，構成了滋擾及煩厭，違反了公契條文第IV部B2條的規定。”

67.  Ms Chan went further to say that in deciding whether the complaints about nuisance were reasonable; the ordinary meaning of nuisance in the context of the living environment of the Development should be applied.  It is submitted that the Tribunal should look for the elements of “disturbance” or “annoyance” to a person in the exercise or enjoyment of his ownership or occupation of land in considering whether there was nuisance (The Incorporated Owners of Kadoorie Avenue Mansion v Rising Dragon International Limited LDBM 201/2013).  In paragraph 36 of the judgment, HHJ KW Wong said that:-

“In the tribunal’s judgment, disturbance and annoyance are not causes of action. One needs to establish the element of “disturbance of”, or “annoyance to” before one can successfully set up nuisance. Once set up it amounts to a breach of DMC. In Clerk & Lindsell on Torts, Sweet & Maxwell (20th ed, 2010), at para 20.01, nuisance (or private nuisance) is defined as follows:-

“The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. … Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of : (a) [public nuisance], or (b) his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land, when in private nuisance. ” ”

68.  On the concept of “ordinary usage of mankind living in a particular society” Ms Chan said that the Tribunal should consider whether the use of House No. 26 by the Respondents for keeping a large number of dogs and cats is an ordinary use in the circumstance.  The Development is a low-rise, low-density and high-class residential development.  Using the house as a refuge for a large number of unwanted dogs and cats for a prolonged period (since 2001 and the Respondents did not suggest a date to end this activity) is not an ordinary use.

69.  Mr Chan on the other hand contended that this Tribunal has to strike a balance between the right of the Respondents to use their property for their own lawful enjoyment on the one hand, and the right of two other neighbours to the undisturbed enjoyment of their property on the other.  It was suggested by him that the parameters to which this Tribunal may have regard when determining whether an interference with one’s comfort and enjoyment of one’s land can amount to an actionable nuisance include (a) locality, (b) manner of interference, (c) fairness between parties, (d) standard of comfort and (e) abatement.

70.  I agree with Ms Chan that nuisance in the present case should be decided on the principles set down in Clerk and Lindsell.  On the other hand I also agree with Mr Chan that I shall consider those factors raised by him.

Locality

71.  Mr Chan submitted that a person who lives in a large rural development where keeping of dogs is commonplace cannot reasonably expect to be free from noises due to dogs barking as if he were in a secluded urban district where dog keeping is forbidden.

72.  One must not forget that owners of the Development have agreed not to keep dogs and cats when certain situations occurred (Clause 5.19).  They are bound by the provisions.  Clause 5.19 indicated clearly that there was no absolute and unfettered right to keeping cats and dogs in the Development.  In my judgment what the Tribunal has to consider is in the environment of the Development, whether the extent of dog barking and foul odour now being complained (as I have already found their presence) would disturb the exercise or enjoyment of the ownership or occupation of land by a reasonable owner in the locality of the Development.

73.  I accept that the Development is situated in an area far away from the business centre of Hong Kong such as Central and Tsim Sha Tsui but I do not agree that it is in a rural area.  It may be situated in the sub-urban area of Hong Kong.  The neighbouring land of the Development is in fact rather developed.  Back to the Development itself. It is in fact a large scale residential development of low-density design to suit the life-style of middle class residents.  It is not rural as such.  It is not rural in the sense where owner of houses have not agreed expressly to observe certain rules on how they use their land.  It is not an area where trees and plants are growing wild or there may be animals wandering around in the vicinity.  The Development could be said to be urbanized and well managed to a standard not lower than other estate developments in the urban area.  The main difference is town houses are built in the Development and not tall residential buildings.  Access roads are paved with road markings.  Public utilities and common facilities are provided and well serviced.  Owners paid the Applicant to manage and maintain the Development according to the DMC and Cap 344.  There are rules under the DMC and the Sub-Deed the owners agreed to observe.  In case of non-compliance of the rules by owners, the Applicant has a duty to take enforcement action.

74.  I am of the view that the residents in the Development would have the benefit of keeping animals as their companions as it is not prohibited but at the same time they are entitled to use and enjoyment of their properties without being interfered or disturbed by insufficient control on animals by other residents.  I am of the view that the Respondents have failed to convince me that the residents of the Development should be expected to be more tolerant to smell and noise to the extent as described by the witnesses of the Applicant.  I do not agree that people move to that part of land in Hong Kong would mean that they accept being awakened by dogs in the night and they would readily waive their right sitting out in their gardens which is perhaps one of the reasons why they give up convenience living in the city.  I do not think it could be argued that they stay in the Development for fresh air and tranquility.  I do not think it reasonable to expect that they would be more tolerant to a neighbor who provides animal refuge in the house immediately next to them and to keep quiet when the conduct of such animals or the manner of their being kept had become a source of interference and disturbance to the use and enjoyment to their own land.

75.  I have considered locality and I find that the level of nuisance had exceeded the level which was acceptable even in an area far away from city centre.  The argument on locality does not assist the Respondents.

Standard of Comfort

76.  Mr Chan said that if the Respondents’ right to keeping dogs and cats were to depend on the effect on a neighbour of peculiar temperament or disposition, the standard of assessing interference would be fluid and fluctuating as to the idiosyncrasies of the neighbour.  Mr Chan reminded this Tribunal to ascertain the effect of the noise upon ordinary persons in the vicinity.  An objective approach should be pursued.  The same approach should likewise be applied when it comes to assessing the degree of interference caused by smell allegedly from the Respondents’ pet keeping.

77.  I do not think Mr Chan is entirely wrong in his proposition.  I agree that an objective approach should be pursued when assessing the effect of the noise and smell upon ordinary persons in the vicinity.  This does not mean the evidence of Mr Yeung and Ms Liu should be disregarded.  From their evidence, it does not show that they are not ordinary person or that they are people of a peculiar temperament. No ordinary person would want to be awakened by dog barking at night and no ordinary person would want to be attacked by foul odour emitted by animals or their excrement from next door.  There was just no evidence to show that they are “a neighbour of peculiar temperament or disposition”.  They go to bed not during daytime but sometime around 11 p.m. in their own bedrooms and not elsewhere in the house.  Ms Liu is entitled to use the sitting room inside of her house at a time she wants.  Both Mr Yeung and Ms Liu are entitled to sit out in their gardens to enjoy some quiet leisure moments with fresh air.  I do not think they should be criticized for being idiosyncratic physically or mentally for that reason.

Manner of Interference

78.  Mr Chan said that the present case is concerned with short, sporadic and transitory interference of dogs barking.  The duration does not last long on every occasion.  Almost all the complaints relates to dogs barking in daytime and the frequency is low (see the Applicant’s logbook on [146-11] to [146-13]).  The manner of the interference does not exceed that to be expected in a rural development where that general type of interference has to be tolerated.  Further, barking in unsocial hours is not something of a pattern (see the Applicant’s logbook on [146-11] to [146-13]).  The keeping of dogs and cats may cause a considerable amount of temporary annoyance to their neighbours; but one cannot on that account be held liable for unlawful nuisance because the recreation of pets keeping cannot be carried on if it were so.

79.  I have already dealt with this argument above under locality and standard of discomfort.  I do not agree with the description of the barking adopted by Mr Chan.  As contended by Ms Li, she could not control the time the dogs barked.  I also find that Ms Liu has a reason to be disgusted when she saw the hair sticking out from the drain at her 1^st floor balcony.

Abatement

80.  I was invited to consider the abatement measures taken by the Respondents.  Mr Chan submitted that the Respondents keep pets as a recreation which has a real, useful and positive utility to both humans and animals.  They treat dogs and cats as members of the family and loyal friends.  They are companions for each other.  He also said that good neighbours by their mutual forbearance will lessen the discomfort as much as they are reasonably able.  To this end, he said, the Respondents have duly abated the inconveniences thus caused to their neighbours as far as possible.  The setting up of sound insulation materials inside Respondents’ premises is one example.  The provision of additional home helpers to remove manure heaps and disinfect areas is another example.  He invited the Tribunal to see photographs in pp 141 to 145 in the bundle for other examples.

81.  No particulars on the so called abatement on noise had been adduced as evidence.  The Tribunal was given to know that they were wave sound resistant foam and EVA foam.  The photographs in pp 141 to 145 could not show clearly how and where they were installed in House No. 26 and how they work in the circumstances.  There was no evidence adduced on their effectiveness by the Respondents.  The only evidence adduced at trial was from the Applicant’s witnesses saying that the noise of barking remained to be disturbing after the alleged installation.  I accept the evidence of the witnesses that the disturbance of noise and smell continued after the abatement.

82.  Some photographs show mesh on windows installed at the Glass Structure and Ms Li said that no hair would come out.  I could not agree because according to Ms Liu there was still hair coming out.  I also take note that if the Glass Structure is to be cleaned, hair might be discharged with water through drainage pipe.  Hair might come out with the person who went in to clean the place.  I also accept the evidence of the Applicant’s witnesses that there was strong odour of cats and their excrement.

83.  Finally, there might have been a good opportunity for the Tribunal to observe the installation and the effectiveness of the abatement at House No. 26.  However as said a site inspection by the Tribunal had not been realized for terms imposed by the Respondents. In the circumstances, the submission made by Mr Chan carries no force even if the Tribunal draws no adverse inference against the Respondents for their refusing a site inspection.

Conclusion

84.  By making reference to the above literature and authorities, it is my judgment that the barking and the foul odour had disturbed the enjoyment of the ownership or occupation of land or other right used or enjoyed in connection with land of Mr Yeung and Ms Liu.  In my judgment, the disturbance in the present case amounted to physical discomfort as the odour was sickening and was strong enough to keep Mr Yeung and Ms Liu away from certain parts of their own house; and they had been awakened from their sleep at nights by dog barking.  I am satisfied that the barking and the foul odour of the dogs and their excrement amounted to nuisance.  I am also satisfied that the cats have also caused nuisance to Ms Liu and Mr Yeung because of their noise, foul odour and fur.

85.  For the above reasons, I am satisfied that the complaints received by the Applicants were reasonable.  I am satisfied that the Applicant has also proved that in the opinion of the Applicant is rightly formed.

86.  In my judgment, even if nuisance is to be defined by the standard as suggested by Mr Chan (see paragraph 64 above) the noise and foul odour created by the animals kept in House No. 26 did amount to nuisance and has remained to be so.

87.  For avoidance of doubt, the rat problem allegedly caused by mishandling of pet food had not been taken on and considered by this Tribunal.  I am of the view that first it is very difficult to prove that rat problem was “created” by the pet food; secondly, even if it is substantiated, it is not a cause to remove the animals but to improve in the handling of pet food only.

The Right between the Complainants and the Respondents

88.  I agree with Mr Chan that this Tribunal has to weigh the right of the Respondents to use their property for their own lawful enjoyment on the one hand against the right of two other neighbours to the undisturbed enjoyment of their property on the other.  I would also consider fairness between parties.

89.  I have already found that there was nuisance, the argument of Mr Chan that what the Respondents had been doing was only exercising their right to use their property for their own lawful enjoyment could not succeed and could be disposed of.

Whether Injunctive Relief should be Granted

90.  I have to look into the whole of the circumstances when deciding whether an injunction should be imposed even I have found that the complaints are substantiated.

Fairness between Neighbours

91.  Mr Chan said that one must give and take, live and let live, because fairness between neighbours requires it.  He said that Ms Liu keeps a dog.  Her dog also barks in daytime and occasionally in unsocial hours.  Intrusion by noises as a reciprocal annoyance as such is the inevitable price of living in a rural development in proximity to one’s neighbour.  Naturally it is one of those things which one has to put up with.  Fairness between the parties will allow the discomfort.

92.  I could not agree with the argument of reciprocal annoyance.  The number of dogs kept by the Respondents is 10 times of that kept by Ms Liu.  Ms Liu has kept no cat.  There was no evidence that the dog kept by Ms Liu had caused any annoyance to other neighbour including the Respondents.  There was no complaint received by the Applicant against Ms Liu and her dog.  Mr Yeung did not complain about the dog of Ms Liu.  He was not annoyed by it and it did not cause him to stay inside the house and give up his right to enjoy the openness in his garden.  I reject this argument.

93.  I reconsider all of the factors I have dealt with from paragraphs 64 to 83 under this topic again. In my judgment I see no reason to exercise my discretion not to order the cats and dogs to be removed.

94.  I have also considered whether I should allow the Respondents to keep one or two dogs and one or two cats as I understand that not all the dogs and cats are making noise or contributed to the smell.  I do not think it appropriate in the present case. I have not been given to know the character of individual cats and dogs and I could not make a ruling on which one should go and which one should stay.

95.  Further, Ms Li denied the hair found on the drain at the 1^st floor balcony and the stinky smell from the trapped gully in House No. 22 was caused by her dogs. She denied the barking belonged to her dogs.  With such mentality, it is unlikely that such problem could be removed if the animals are allowed to stay.

96.  Last, I want to say that I understand the feelings of Ms Li for the abandoned cats and dogs.  I have no reason to criticize her for her endeavour to save some animals.  It is just that House No. 26 is not a suitable place for keeping them because it is too close to other houses.

Costs

97.  Costs shall follow the event.  I order that the Respondents do pay the Applicant the costs of this Application, with counsel certificate, to be taxed if not agreed at District Court Scale.  This is an order nisi to become absolute if no application is taken out to vary the same within 14 days from the date of this judgment.

Order                                                                    

98.  My order is as follows:-

(1)	The Respondents do within 3 months from date of this judgment remove all the dogs and cats from House No. 26.
(2)	Penal notice is attached.
(3)	The Respondents do pay the Applicant the costs of this application, with counsel certificate, to be taxed if not agreed at District Court Scale.  This is an order nisi to become absolute if no application is taken out to vary the same within 14 days from the date of this judgment.