HO MAN LAP v. HO KING KIU AND OTHERS

DCMP 377/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 377 OF 2010

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D E C I S I O N
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1.  The Plaintiff succeeded after trial in obtaining an order for possession in respect of the subject property against the defendants, but has yet to succeed in enforcement.  He now applies for directions to facilitate the enforcement.  陳瑞昌 (“Chan”), a non-party, seeks to be heard and applies for leave to file his declaration.

BACKGROUND

2.  The plaintiff became the registered owner of the subject property, namely, the Remaining Portion of Lot No.198 in Demarcation District No.74 (“the Lot”) in 1981.  At that time, a store called Chan Fung Kee Store (“the Store”) encroached upon the Lot, but the exact extent of encroachment was then unclear.  The Store continued to operate, and since 1984 by Chan Nam Kiu, who is the daughter of the 1^st defendant.

3.  In 1999, the plaintiff and Chan Nam Kiu entered into a formal tenancy agreement for a period of 3 years in respect of the encroached part of the Lot. The tenancy expired on 30 October 2002 and was not renewed.  Yet the Store continued to occupy the encroached part of the Lot.

4.  The plaintiff commenced legal proceedings against Chan Nam Kiu for possession of the encroached part of the Lot (DCCJ 1252 of 2003), and obtained a default judgment and order for possession.  Chan Nam Kiu subsequently appeared to set aside the judgment and order, challenging the uncertainty of the boundary of the Lot and the extent of encroachment.

5.  The plaintiff eventually engaged an authorized land surveyor to formally establish the boundary of the Lot. Hence the survey plan dated 31 August 2009 (referred to as “the 2^nd Record Survey Plan” in the subsequent trial in the present case, but I simply call it “the Plan” for the present purpose).  The Plan shows that the Lot is enclosed by government land, part of which was occupied by the front of the Store.  The back of the Store, which apparently contains its associated facilities, encroaches upon the Lot.

6.  In February 2010, the plaintiff commenced the present action.  Besides the 1^st defendant, other unnamed occupiers were collectively named as the 2^nd defendants.  The plaintiff succeeded in obtaining default judgment, only to be set aside this time when Choi Sui Cheong appeared and intervened on the basis that, amongst other things, the Store was occupied pursuant to a short term tenancy (No. 456) granted by the Government back in 1982.  Choi was accordingly joined as the 3^rd defendant in this action.  The fact was that Chan Nam Kiu has emigrated, and it was the 3^rd defendant who has been letting the Store.  At one stage, the defendants also raised the allegation of adverse possession. 

7.  After trial, Judge Chow handed down his written judgment in the present case on 19 April 2013.  His Honour made the following findings:

(1) The claim for adverse possession was bound to fail[1].

(2) The Plan[2] correctly presented the relative positions of the Store and the Lot, and the Store and its associated facilities did encroach upon the Lot 198 as shown in the Plan.

(3) The Government tenancy was terminated by the Government in September 2010[3] and the defendants no longer had the right to occupy the Store.

8.  It was ordered, among other things, that[4]:

(1) The plaintiff do recover possession of the Lot as defined in the Plan;

(2) The defendants shall within 60 days vacate the part of the Store and the toilet/kitchen/storage facilities within the Lot as coloured in the Plan;

(3) The defendants, whether by themselves, their servants or agents or otherwise howsoever be restrained from entering or using the areas defined in (2) above or any part of the Lot as defined in (1) above;

(4) The defendants do jointly and severally pay Ho within 14 days the cost of removal of the infringing installation (in the encroached part of the Lot) in the sum of HK$665,000, with interest until satisfaction.

9.  The defendants were also ordered to pay damages for trespass until delivery of vacant possession of the encroached part of the Lot.

10.  The defendants sought to appeal, but their applications for leave to appeal were dismissed first by the trial judge and then by the Court of Appeal.  Notwithstanding that, the Store, including the encroached part of the Lot, remained occupied by or with the permission of the defendants.

11.  Two separate attempts by the bailiff, accompanied by the plaintiff’s representatives, to execute the order for possession in March and April 2014 have been unsuccessful as a result of what was said to be obstruction caused by or with the permission of the 3^rd defendant.

12.  By summons filed on 22 October 2015, the plaintiff applied for the following directions:

(1) The bailiff be at liberty to enter the Lot through the front part of the Store and/or through the passage on either side of the Store as shown and coloured in the Plan[5];

(2) The plaintiff and his agents may, and the bailiff do take all reasonable and necessary steps to assist the plaintiff and his agents to, remove any and all barriers, obstructions, obstacles or objects obstructing or preventing the bailiff from entering the Lot;

(3) The bailiff be authorized and directed to request the assistance of the police where necessary;

(4) Any police officer be authorized to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in the execution of the writ of possession and fieri facias combined, provided that the person to be arrested has been informed of the gist of the amended judgment, the writ of possession and fieri facias combined and this order, and that his action is likely to constitute a breach of the order and obstruction of the administration of justice, and that he may be arrested if he does not desist;

(5) Any person so arrested by the police shall be brought before the court as soon as practicable for further direction[6];

(6) Further or other relief;

(7) Liberty to apply;

(8) Costs.

13.  The Court subsequently received a declaration made by Chan on 5 November 2015.  He took out his summons on 10 December 2015 seeking leave to file his declaration by affirmation apparently for the purpose of opposing the plaintiff’s application.

CHAN

14.  Chan needs no leave of the court merely to file an affidavit for the purpose seeking to be heard as an interested party.  The question is whether and on what basis he may be heard.

15.  According to Chan’s declaration, he is the uncle of the 3^rd defendant.  The 3^rd defendant allegedly transferred the operation of the Store to him in March 2014.  The police has disclosed what is said to be a tenancy agreement between the 3^rd defendant, as the landlord, and Chan (together with a Yip Yuk Keung (“Yip”)), as the tenant, in respect of the Store (“the Alleged Tenancy Agreement”).  The Alleged Tenancy Agreement was dated 11 March 2014.  Chan claims the right to operate the Store and to refuse any person from entering the Store.

16.  O.15, r.6 of the Rules of District Court contemplates application for joinder by interested parties.  R.6(2)(b) provides that the person may be joined if he ought to have been joined or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon.  Any person, between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter, may also be joined.  But the Court is concerned with parties so interested at the time of the making of the order, not interest that is said to arise subsequent to the order.  This must be the correct reading of the rule: see Hong Kong Civil Procedure 2016 (Vol 1) at 15/6/1.

17.  O.15, r.10 specifically applies to proceedings in action for possession of land.  The Court may at any stage of such proceedings order any person not a party to the action who is in possession of the land to be added as a defendant. The application can be made even after judgment has been signed and execution issued.  A person in possession may apply to be joined under either r.6 or r.10, and the application of r.10 is expressed to be without prejudice to r.6. If, as discussed, a person whose interest is said to arise subsequent to the order for possession may not be joined under r.6, I see no reason why he may somehow be joined under r.10.

18.  As at the time of commencement of the present action, which was February 2010, up to the making of the order for possession in April 2013, Chan had no interest in or occupation of the Store or the encroached part of the Lot.  The fact was that Chan had never been in the picture until the Alleged Tenancy Agreement dated 11 March 2014, which was way after the order for possession has been made and writ of possession has been issued.  There is no basis for considering joining Chan as a party under either rule of O.15 to enable him to be heard to resist the execution of the order for possession.

19.  In any event, Chan has no independent right to challenge the plaintiff’s rights: see Yu Wing Kan v Lau Shuk Lan [1990] 2 HKLRD 583 at 589B to 590D.  He claimed rights arising out of the Alleged Tenancy Agreement, which came into existence well after the defendants have already been adjudged, as an issue between them and the plaintiff, to be not entitled to occupy the Store since the termination of the government tenancy in September 2010, and definitely the encroached part of the Lot at all material times.  Chan’s alleged right depends wholly on that of the 3^rd defendant, which did not exist at the time of the Alleged Tenancy Agreement.  Out Chan must go as well.  For his recourse, if genuinely intended, Chan would have to go after the 3^rd defendant as his purported counterpart under the Alleged Tenancy Agreement.

20.  Nevertheless I heard Chan as a party affected by the execution of the order, assuming that he, rightly or wrongly, is indeed occupying the Store.

THE PLAINTIFF’S APPLICATION

21.  Mr Chow appearing for the plaintiff emphasized the damage to the rule of law and due administration of justice by blatant and intentional interference and obstruction to the enforcement process.  A successful litigant, he submitted, should not be deprived of the fruit of his judgment that way.  That of course is an underlying principle.  However whether it is the appropriate to make the directions still depends on the circumstances of each case.

22.  The plaintiff makes it clear that he is basing his application on the decision and directions of the court in the injunction cases arising out of what is known as the ‘Occupy Central’ episode in 2014, namely Chiu Luen Public Light Bus Company Limited (HCA 2086/2014), Golden Investment Limited (HCA 2094/2014) and Lai Hoi Ping suing on his own behalf and on behalf of all other members of Hong Kong Taxi Association (HCA 2014/2014).  Decision in those cases was handed down by Au J on 10 November 2014[7].  In the decision, the action involving the CITIC Tower property was defined as the “CITIC Tower Action”.

23.  The majority of the defendants in the ‘Occupy Central’ cases were unnamed and collectively described.  All concerned claims on nuisance against the defendants for occupying and blocking public areas causing obstruction.  In the CITIC Tower Action, the owner of the CITIC Tower claimed that the blockade in the public areas significantly obstructed the property’s entrances and exits as well as vehicular and pedestrian exits.  Ex parte injunctions against the defendants were granted.  The plaintiffs subsequently complained that there had been en masse flouting and non-compliance of the ex parte injunctions by the defendants.  Hence their application for directions to facilitate the enforcement of the injunctions, if the same were continued inter partes.

24.  In those cases, the unchallenged evidence shows that since the grant of the ex parte injunctions, the unnamed defendants en masse had refused to comply with and in continuing breach of the court orders by maintaining and reinforcing the obstructions.  The unnamed defendants en masse had in breach of the court orders prevented the plaintiffs from removing the obstructions.  In relation to the injunction in the CITIC Tower Action, public figures en site openly said to the plaintiff’s staff that they should do nothing in enforcement of the injunction until the inter partes hearing.

25.  Au J took the view that it was necessary to give the directions in the circumstances prevailing then.  In particular, he saw the real likelihood that the defendants in large number would continue to seek to disobey the injunction orders and obstruct the bailiffs in carrying out their duties to enforce the injunctions, and that the defendants might well mistakenly and incorrectly dispute the police’s power to arrest them if they obstruct the due administration of justice in interfering or obstructing the bailiffs in carrying out their duties to enforce the injunctions.  The direction would help to inform the en masse defendants the consequence of any disobedience and confirm the police’s power.  That would make the orders clearer and fairer as well as would facilitate the due administration of justice.

26.  As an attempt to apply what were decided in the above cases, the present case is apparently the first of its kind.  The circumstances prevailing at the time and their scale as well as what drove the court to decide to give the directions in aid of enforcement of the injunctions in the ‘Occupy Central’ cases perhaps could not directly compare with what happened in the present case.  However several points explained by Au J should be generally recognized.  First, the court could direct bailiffs to assist in the carrying out of court orders.  Second, obstruction of the bailiff’s performance of such duties would be in criminal contempt of the court, which is a common law offence punishable by imprisonment and for which the person could be arrested by the police under the Police Force Ordinance, Cap 232.  Third, the police authorization direction, if made, would only be to restate what the law has already empowered the police to do in warranting situations.  That does not compel or direct the police to make an arrest. Not does that take away or fetter in any way the police’s discretion in the execution of their duties.

27.  The fact is that the Lot is enclosed on all sides by government land.  There is no access to or egress from the encroached part of the Lot except for that through the front of the Store or the passages on its two sides, which are government land now occupied or blocked by the defendants.  Two separate attempts were made by the Court’s bailiff to execute the order for and writ of possession on 21 March 2014 and 23 April 2014 respectively. These attempts were both unsuccessful.  Access to the back of the Store that encroaches upon the Lot was denied.

28.  As mentioned, the persons on site at the time claiming right to occupy the Store were Chan and Yip.  The bailiff confirmed in the subsequent correspondence that peaceful entry and execution was unsuccessful.  The bailiff declined attempting further execution process while the police summoned to the site refused to intervene.  The plaintiff also complained about threat received after the first attempt in connection with any further attempt of enforcement process.

29.  The plaintiff finds the further liaison with the bailiff, the police and the District Land Office with a view to ironing out the preparation for further attempt of enforcement process turned out to be less encouraging than expected.  The bailiff expressed his reluctance in the absence of peaceful entry.  The plaintiff and the bailiff also did not receive the assistance expected of the police officers attending the scene.  The police made their stance clear at a meeting held on 4 September 2014 [8] that no effective assistance would be provided by the police in the absence of express order or directions of the Court.

30.  Strictly, the affidavit evidence of the complaint by the plaintiff about the failure to execute and the obstruction by the defendants is unchallenged.  The correspondence with the various authorities subsequent to the execution attempts also speaks for itself.

31.  The plaintiff is armed with the judgment and order of the court.  He acknowledged that alleged non-compliance with the order of the court may well afford him the right to initiate proceedings to cite the defendants for contempt of court.  However, such venue may not effectively serves his purpose particularly in view of the experience that the defendants, regardless of the judgment and order for possession, enlisted third parties, such as Chan and Yip, to occupy the Store with the actual effect of hindering the enforcement process in respect of the Lot.

32.  It is noted that the order of the court in the present case not only restrains the defendants, whether by themselves or otherwise, howsoever from entering or using the encroached part of the Lot, but also compels them to vacate from that part of the Lot.  By denying the bailiff’s entry to the encroached part of the Lot through the government land which the Store occupies, the defendants effectively retain control and thus actual possession of the encroached part of the Lot.  This is so, even assuming that the defendants have ceased entering upon the encroached part of the Lot.

33.  During the hearing, I questioned why the plaintiff did not seek from the court a substantive order granting him access to and egress from the encroached part of the Lot through the other parts of the Store.  I raised that because in the ‘Occupy Central’ cases mentioned above, the injunctions indeed consisted of specific order authorizing the plaintiffs to remove the obstructions on the public way and restraining the defendants from preventing the plaintiffs from doing so. The directions, which Au J eventually gave, were to facilitate the enforcement of such terms of the injunctions.

34.  However, it is also noted that pursuant to the court order in the present case, the plaintiff is not only entitled to recover possession of the encroached part of the Lot.  The plaintiff was supposed to enter there and carry out works of removal of the infringing installations.  This was specifically studied in the judgment[9]. This was also implicit in the order that the defendants are to pay such cost of removal to be incurred by the plaintiff.  In the circumstances, the order being enforced is indeed one whereby the plaintiff is to enter upon the encroached part of the Lot to carry out removal work at the defendants’ expense.  There is therefore basis for the court now to consider giving directions to facilitate the enforcement of such terms of the order of the court, such as directions in respect of access to and egress from the encroached part of the Lot.

35.  Chan claims the right over the part of the Store which occupies the government land, and thus the right to refuse entry over such part.  As mentioned, Chan could only claim under the defendants.  As an issue between the plaintiff and the defendants, it was adjudged that upon the termination of the government tenancy and the Government’s rejection of the request for extension of tenancy on 30 September 2010, the defendants ceased to have any right to occupy the Store.  That the squatter structures constituting the Store are tolerated to exist and the DLO currently has no plan to clear them[10] or to evict the occupants concerned[11] per se does not transform to become a right to occupy under the Government to the exclusion of others.  Between the plaintiff and the defendants, the latter are no different from persons remaining in occupation of government land at the mercy of the Government.  Chan is in no better position.

36.  On this basis, the defendants should not be allowed to deploy the mere fact of their occupation of the government land to effectively hinder the plaintiff’s enforcement of the order of the court against them.  For any complaint about trespass over what is government land, it should come from the Government, which has the right to possess the relevant land.  All the papers in this application have been sent to the authorities including the DLO.  There is no indication from the DLO that the Government wanted to be heard on the directions being sought.

37.  In his declaration, Chan suggested that the court ceased to have any business to do with whether the plaintiff could effectively enforce and take the fruit of the judgment.  This cannot be a legitimate contention, and I do not accept that the court is helpless in the circumstances.  All considered, including the representation of Chan, I give the following directions, adjusted from those sought:

(1) As far as it is necessary to gain access to and egress from the Lot for the purpose of enforcing the amended judgment, the order for possession and the writ of possession with fieri facias combined in the present case mentioned above, the plaintiff and his agents as well as the bailiff may enter the front part of the Store (shown and coloured pink and pink hatched black) and/or the passage on either side of the Store (respectively shown and coloured orange and indigo) in the Plan (attached hereto);

(2) The plaintiff and his agents may, and the bailiff do take all reasonable and necessary steps to assist the plaintiff and his agents to, remove any barriers, obstructions, obstacles or objects preventing the access to and egress from the Lot as aforesaid;

(3) The bailiff be authorized and directed to request the assistance of the police where necessary;

(4) Any police officer be authorized to arrest and remove any person who the police officer reasonably believes or suspects to be committing or have committed a criminal offence by or in obstructing or interfering any bailiff in carrying out his or her duties in the execution of the writ of possession and fieri facias combined (provided that the person to be arrested has been informed of the gist of the amended judgment, the writ of possession and fieri facias combined and this order, and that his action is likely to constitute a breach of the order and obstruction of the administration of justice), and that he may be arrested if he does not desist;

(5) There be liberty to apply in respect of the above.

ORDER

38.  As mentioned, no leave is required for Chan to file his affidavit.  I make no order in respect of that.  As to the plaintiff’s application, I give directions in terms set out above.  On the basis that the application was occasioned by the defendants, I make a nisi order that the defendants shall pay the plaintiff his costs of and occasioned by the application including these hearings, to be taxed with certificate for counsel.

[1] The contention was in fact dropped at the beginning of the trial.

[2] A copy of which is annexed hereto.

[3] The defendants’ application to extend the tenancy was also rejected by the Government.

[4] According to the amended judgment dated 5 July 2013.

[5] The front of the Store was coloured pink and pink hatched black, and the passages on the 2 sides of the front of the Store were coloured orange and indigo respectively.

[6] During the hearing, Mr Chow appearing for the plaintiff accepted that arrest and the person arrested and suspected of having committed a criminal offence would follow the due criminal process.  Alleged breach of the order of the court and civil contempt will be a matter for committal proceedings at the initiative of the plaintiff.

[7] Judgment on appeal dated 15 November 2014.

[8] §21 of the plaintiff’s affirmation.

[9] §§24-25 of the judgment.

[10] DLO’s letter dated 9 June 2014.

[11] DLO’s letter dated 5 February 2014.