CHAN SIU CHEUNG HENRY AND OTHERS v. CHEUNG WING KEUNG PETER

DCCJ 1500/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1500 OF 2016

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DECISION

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INTRODUCTION

1.  There are 2 summonses before me, one is taken out by the plaintiffs and the other is taken out by the defendant.

2.  By a summons filed by the plaintiffs on 29 May 2017 (“the Injunction Summons”), the plaintiffs seek an interlocutory injunction restraining the defendant from occupying or remaining in or around part of the external wall of No 51 Carnarvon Road, Tsimshatsui, Kowloon, Hong Kong (“the Building”) until trial or a further order to be made by this court, and compelling the defendant to remove his hawker stall from that part of the external wall (“the Injunction”).  That part of the external wall is facing the scavenging lane (“the Scavenging Lane”) between the Building and the building on No 49 Carnarvon Road (“the Adjacent Building”).  To be exact, the subject matter in question is the vertical surface of that part of the external wall facing the Scavenging Lane. For ease of reference, the vertical surface in question is called “the Wall” in this decision.

3.  By a summons filed by the defendant on 4 August 2017 (“the Striking Out Summons”), the defendant applies for an order striking out paragraph 8, the first sentence of paragraph 20 and the last 20 words of paragraph 21 (“the relevant parts”) of the 4^th Affirmation of Chan Shiu Leung filed on 18 July 2017.

4.  I would first set out the background, and then deal with these 2 summonses in turn.

BACKGROUND

5.  The plaintiffs are the registered owners of the Building.

6.  The defendant is operating a fruit stall called “Chan Kee” (陳記時果專門店) (“the Stall”) at the Scavenging Lane.

7.  On 31 March 2016, the plaintiffs commenced these proceedings against the defendant for vacant possession of the Stall and mesne profits. 

8.  The plaintiffs’ pleaded case is as follows:-

(a)   The Stall occupies “the said premises”, which is the area delineated on the plan annexed to the Re-Amended Statement of Claim coloured green hatched black (“the Green Hatched Area”) and the Wall.

(b)   Since around 1950s, the said premises were let (“the Tenancy”) or licensed by the plaintiffs’ predecessors-in-title to the defendant’s relatives for a fruit stall business named 陳記 (Chan Kee).

(c)   The defendant took over Chan Kee business, its hawker licence and the said premises in around 2010.

(d)   The permitted use of the said premises under the Tenancy was for business purpose.

(e)   At all material times, Chan Kee attached or placed near the said premises chattels and objects used for its business purposes, which caused obstruction.

(f)   Part V of the Landlord and Tenant (Consolidation) Ordinance applies to the said premises.

(g)   By a termination notice dated 8 January 2016, the plaintiffs required the defendant to quit and deliver vacant possession of the said premises to the plaintiffs on or before 29 February 2016.  The defendant did not comply with this request.

(h)   The defendant wrongfully remains on the said premises as a trespasser.

9.  The defendant’s pleaded case is as follows:-

(a)   The Green Hatched Area is not owned by the plaintiffs but by the Government of the Hong Kong Special Administrative Region.

(b)   Since around June 2010, the defendant has been operating Chan Kee at the Stall under a fixed-pitch hawker licence (“the Fixed-Pitch Hawker Licence”) issued by the Director of Food and Environmental Hygiene.

(c)   When the defendant’s uncle first operated Chan Kee, the plaintiffs’ father (“the Deceased”) repeatedly disrupted Chan Kee’s business, and at the same time told the defendant’s uncle that the uncle would be allowed to operate Chan Kee peacefully if some “tea money” was paid to the Deceased.  The defendant’s uncle reluctantly acceded to this request and paid “tea money” to the Deceased monthly.

(d)   After the defendant began to operate Chan Kee in around 2010, he continued the practice of paying “tea money” to the Deceased.  There has never been any tenancy agreement between the Deceased and the defendant concerning the Stall.

(e)   After the death of the Deceased in late 2014, the defendant was informed by Chan Siu Leung to pay the “tea money” to the plaintiffs’ solicitors.  There has never been any tenancy agreement between the plaintiffs and the defendant concerning the Stall.

(f)   Even if there is any tenancy agreement concerning the Stall, such a tenancy agreement is illegal and unenforceable as its effect would be allowing the defendant to occupy unleased land within the meaning of section 2 of the Land (Miscellaneous Provisions) Ordinance, and is contrary to section 4 of the Land (Miscellaneous Provisions) Ordinance.

(g)   If the Stall obstructs the plaintiffs’ right to use the Wall, the plaintiffs cannot complain about the obstruction, for this is the necessary and inevitable result of operating a fixed-pitch hawker stall as permitted by the Director of Food and Environmental Hygiene.

10.  On 26 October 2016, the plaintiffs filed a summons for summary judgment.  That summons was argued before Master D To on 1 December 2016. After hearing the submissions from the parties, the master dismissed the summons with costs to the defendant.

11.  Mr Derek Hu, counsel for the plaintiffs, tells the court that the plaintiffs accept that the Green Hatched Area is owned by the Government.  The plaintiffs are now only seeking an injunction concerning the Wall.

12.  It is pertinent to note that as shown in the evidence before the court:-

(a)   At present, the Stall is not touching the Wall.  There is a small distance between the Wall and the Stall, and that distance is about 1 inch.

(b)   The canopy above the Stall (“the Canopy”) is also not touching the Wall.  However, there are some metal bars providing support to the Canopy and the Stall, and those metal bars are touching the Wall.

THE INJUNCTION SUMMONS

The principles

13.  There is no dispute that the Injunction being sought by the plaintiffs is an interlocutory mandatory injunction.  The principles concerning interlocutory mandatory injunctions have been set out by Ma J (as he then was) in Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041, in which his lordship said:-

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

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

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

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

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

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

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

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

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

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

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

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

14.  Accordingly, in order to get the Injunction, the plaintiffs have to demonstrate a high degree of assurance that they will succeed in trial, alternatively they have to show that the balance of convenience tilted so much in their favour and justice requires the Injunction to be granted.

15.  In addition to these, whether there is any delay by a plaintiff in making the application for an interlocutory injunction is a factor to be borne in mind in considering in what way the court’s discretion should be exercised. A plaintiff should apply for an interlocutory injunction promptly after becoming aware of the facts in relation to which he seeks protection.  Failure to make a timely application for an interlocutory injunction may well show that there is no irreparable damage in the absence of an interlocutory injunction. In King Fung Vacuum Ltd v Toto Toys Ltd [2006] 2 HKLRD 785, Rogers VP said:-

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

21. The defendants have come along a year or so after they had become aware of the facts of which they now complain, and say, 'Oh, well, there is likely to be irreparable damage'. But that is not established simply by so saying. …

…

23.   The Judge in his judgment appears to have totally overlooked the fact of the delay and its effect on the allegation of irreparable damage. …”

High degree of assurance

16.  I do not think that the plaintiffs have demonstrated a high degree of assurance that they will succeed in trial.  The only cause of action as pleaded in the Re-Amended Statement of Claim and relied upon by the plaintiffs is trespass.  I doubt whether the plaintiffs can really succeed by relying upon this cause of action in this case.

17.  The plaintiffs are just talking about the defendant’s possession of the Wall, which is only a vertical surface without any horizontal dimension.  In Sunbroad Holdings Ltd. v Unknown Occupiers [2012] 2 HKLRD 599, the Court of Appeal held that it would not be possible to have a lease of a vertical surface, and there could be no adverse possession of that surface.  The judgment of the court was given by Tang VP (as he then was), in which he said:-

“10. [counsel] has referred us to Leung Kwok Kau v Tam So Wa [1968] HKLR 673. There the question was whether a lease of the surface of the outer wall of a building could be created. The Full Court held that it could not. Their lordships explained why:

"… A corporeal hereditament … has always included an area of the surface of the earth or of some horizontal plane either below, or in a building erected above, the surface of the earth. The area need not be large, but it must have some substance. …" Per Huggins J held at 680.

"… It is possible to grant a lease of a wall but that is because a wall is situated on the ground and in effect a lease of a wall is a lease of the ground on which the wall is standing together with the wall itself. However, this is not to say that there can be a tenancy of the surface of a wall by itself as was argued in this appeal. I do not think that that is possible. The surface of a wall of its very nature has no depth, it is not standing on any part of the ground: and therefore it cannot in my view be the subject matter of a lease." Per Briggs J held at 675.

"… In the absence of a defined portion of the soil, to which a letting can be distinctly related, no lease or tenancy can arise. Where the subject matter of an alleged lease or tenancy is but the bare surface of such a wall, it has no width or breadth of soil to support it, as a lease or tenancy. No estate or interest in land is created; I use the word 'land' in its widest sense. …" Per Mills-Owens J at 679.

11.  With respect, I agree that just as there could not a lease of the surface of a wall, there could be no adverse possession of such surface.”

18.  Since a vertical surface cannot be adversely possessed, I doubt whether the cause of action of trespass is a viable cause of action in respect of the defendant’s possession of the Wall.  In Sunbroad Holdings, the plaintiff therein successfully recovered possession of a vertical surface of the wall from the 3^rd defendant.  As recorded in the first instance judgment (HCMP 1852/2008, 24 June 2011, at [7]), the causes of action relied upon by the plaintiff were “trespassing upon, or interfering with, the plaintiff’s possession of the External Wall …”  Hence, trespass was not the only cause of action relied upon by the plaintiff in Sunbroad Holding.  However, here, the only cause of action pleaded by the plaintiffs is trespass and nothing else.  I doubt whether the plaintiffs can succeed in recovering possession of the Wall by relying upon this cause of action in trial.

19.  Mr Hu refers me to Global Trading Offshore (PTC) Limited v All Persons in occupation of Wall Shop (adjoining Shop G) on Ground Floor of Savoy Mansion, No 49 Carnarvon Road, Kowloon, Hong Kong and Cheung Wing Keung Peter (DCMP 2043/2013, 18 December 2015), in which the owner of the Adjacent Building made a claim against, inter alia, the present defendant (who is the 2^nd defendant in DCMP 2043/2013) for recovery of possession of the wall of the Adjacent Building occupied by the Stall.  The court gave judgment to the plaintiff in that case.  In my view, the judgment in DCMP 2043/2013 does not assist the plaintiffs in this case.  It is not known what cause(s) of action was/were relied upon by the plaintiff in DCMP 2043/2013, what case had been put forward on pleadings by that plaintiff, and what evidence was before the court.  With all these unknowns, what has been said in DCMP 2043/2013 cannot be treated as applicable in this case.

20.  Mr Hu submits that by placing the Stall and the Canopy so close to the Wall and by having some metal bars touching the Wall, the defendant has obstructed the plaintiffs to have access to the Wall and has deprived the plaintiffs the enjoyment of the Wall.  Mr Hu submits that these constitute trespass.

21.  Mr Leon Ho, counsel for the defendant, submits that trespass is unlawful entry by a person on land owned by another person.  Without entering into any land, there cannot be trespass.  Mr Ho relies upon the following cases in support of his submissions:-

(a)   In Southport Corporation v Esso Petroleum Co Ld & Another [1954] 2 QB 182, Denning LJ held at 195 that:-

“(1) Trespass to land. In order to support an action for trespass to land the act done by the defendant must be a physical act done by him directly on to the plaintiff’s land.” (Emphasis added)

(b)   A cause of action for trespass to land will only arise from an act done directly on the plaintiff’s land.  This position is further buttressed by Lau Tao Shing v Lau King Lim (No. 2) [1959] HKLR 354 , Hogan CJ held at 360 – 361 that:-

“The nature of a trespass is indicated by a passage in Halsbury’s Laws of England, Second Edition, Volume XXXIII, at page 6:-

“Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, although no actual damage is done.”

This statement is expanded in Clerk & Lindsell on Torts (11th Edition) page 516:-

“Trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another.”

"Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man’s land is in the eye of the law enclosed and set apart from his neighbour’s; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same field. The slightest crossing of the boundary is sufficient.” (Emphasis added)

22.  Mr Ho submits, in the light of the Court of Appeal’s decision in Sunbroad Holding, the Wall (which is just a vertical surface) cannot be “land”. Accordingly, there cannot be trespass to the Wall.

23.  Notwithstanding Mr Hu’s submissions and the authorities cited by him, I am not convinced that the plaintiffs have demonstrated that they have a high degree of assurance of success in the trial.  I have not overlooked the fact that there are some metal bars touching the Wall.  However, it is not the plaintiffs’ case that the metal bars have penetrated into the external wall. By merely having some metal bars touching the Wall, I doubt whether it would be sufficient for founding an action on trespass.  On the other hand, Mr Ho’s submissions are supported by authorities.

24.  As this is only an application for an interlocutory mandatory injunction, I do not want to make a final determination on the issue.  Suffice for me to say that in my view, there is a real likelihood that the plaintiffs may fail in trial by only relying upon trespass as the cause of action.

25.  I am not saying that the plaintiffs have no way to get back the access to and the enjoyment of the Wall.  In Clerk & Lindsell on Torts (21^st Edition) at [20-02], there is discussion concerning nuisance and trespass:-

“The distinction between trespass and nuisance is the old distinction between trespass and case. Trespass is a direct entry on the land of another, and is actionable per se, without proof of special damage, but nuisance is the infringement of the claimant’s interest in property without direct entry by the defendant, and generally actionable only on proof of special damage. For example, to build a wall partly on someone else’s land is a trespass, but to build on one’s own land a wall which, through disrepair, falls on to another’s land is a nuisance. It is a trespass for A directly to discharge water on to B’s land, but if water spills from A’s land over intermediate land onto B’s land, but if water spills from A’s land over intermediate land onto B’s land this amounts to a nuisance. Such a distinction will not normally become vital to the claimant’s claim where he can allege and prove special damage. If he cannot prove special damage, then he will have to show an entry by way of trespass. It is a nuisance and not a trespass if the branches of a tree, whether planted or self-sown, growing on the land of one man, overhang his neighbour’s land, or if the roots burrow into his land and damage his buildings.”

26.  However, nuisance has not been pleaded in the Re-Amended Statement of Claim.  The plaintiffs cannot rely upon this in support of the Injunction Summons.

27.  There is a further problem in the plaintiffs’ case, ie there is no satisfactory evidence before me showing that this court has the jurisdiction granting the Injunction to the plaintiffs.

28.  District Court Ordinance, s 52 provides:-

“(1) The Court shall have jurisdiction to grant and to enforce injunctions of whatsoever nature and as the case may require and to make binding declarations of right—

(a) in all matters affecting movable property, including money and choses in actions, where the amount or value thereof does not exceed $1,000,000; and

(b) with respect to any apprehended distress; and

(c) in all matters affecting immovable property, including any right, licence or easement in, to, through or over any immovable property and any agreement, covenant or condition respecting immovable property, where the annual rent or the rateable value, determined in accordance with the provisions of the Rating Ordinance (Cap 116) or the annual value, whichever is the less, of the property does not exceed $240,000; and

(d) in all matters of contract not falling within paragraph (a), (b) or (c) where the amount or value of the subject matter of the contract does not exceed $1,000,000,

notwithstanding that any claim for damages or for any other relief or remedy which the Court is competent to grant shall be made in the proceedings.”

29.  Whether the Wall (which is just a vertical surface) can be treated as an immovable property may well be an arguable issue.  However, even assuming that the Wall is an immovable property, in order to obtain the Injunction, the plaintiffs have to produce satisfactory evidence showing that the annual ratable value of the Wall does not exceed HK$240,000.

30.  Mr Hu refers me to an exhibit produced in the 1^st Affirmation of Chan Shiu Leung filed on 5 August 2016 (Exhibit “CSL-5”), which is a copy of the demand note from the Rating and Valuation Department (“R&V”) concerning the rates of the Stall for the 1^st quarter in 2016.  The annual ratable value of the Stall as per that demand note is HK$63,600.  In my judgment, the plaintiffs cannot derive assistance from this demand note.

(a)   The said affirmation is an affirmation filed in the application for summary judgment previously made by the plaintiffs, and is not an affirmation in support of the Injunction Summons.  That affirmation cannot be treated as evidence in this hearing.

(b)   Even if I take that demand note into account, the demand note concerns the rate of the Stall.  The annual ratable value as stated therein may well be the annual ratable value of the Green Hatched Area.  Mr Hu submits that the annual ratable value as stated therein is the total of the ratable value of the Green Hatched Area and the ratable value of the Wall.  I have considerable reservation on this.  There is no evidence showing that when assessing the annual ratable value of the Stall, R&V has not only taken the area occupied by the Stall (ie Green Hatched Area) but has also considered the Wall (which is just a vertical surface).

31.  Mr Hu also asks me to consider the judgment in DCMP 2043/2013, in which the court grants relief in respect of the claim for possession of the wall of the Adjacent Building occupied by the Stall.  Mr Hu submits that since the court has given reliefs to the plaintiff in DCMP 2043/2013, the annual ratable value of the wall of the Adjacent Building must be less than HK$240,000.  As the Wall is just opposite to the wall of the Adjacent Building, the annual ratable value of the Wall would also be less than HK$240,000.  I am unable to accept these submissions.

32.  In my view, the annual ratable value of the Wall has to be shown by proper evidence.  Whatever has been said in DCMP 2043/2013 does not concern the Wall at all.  Further, for the purpose of establishing jurisdiction, the relevant annual ratable value of the Wall is the annual ratable value of the Wall at the commencement of these proceedings.  See Gainfield Investment Ltd v Lam Yi Lai [2016] 3 HKLRD 771.  Even if the judgment in DCMP 2043/2013 can shed any light on the annual ratable value of the Wall, at most that annual ratable value would be the figure in 2013.  This action was commenced in 2016. Obviously, in respect of the annul ratable value of the Wall, the figure in 2013 may well be different from the figure in 2016.

33.  In my judgment, the plaintiffs have not produced any satisfactory evidence to show that this court has the jurisdiction to grant the Injunction.

Balance of convenience

34.  Mr Hu relies heavily upon what has been said by DHCJ Jeremy Poon (as he then was) in Church of Jesus Christ of Latter-Day Saints Hong Kong Ltd v Park (HCA 1167/2001, 8 November 2001) and submits that since the plaintiffs have a strong case on trespass, it would not be necessary for this court to consider the balance of convenience.  In that case, the learned judge said:-

“9. A landowner whose title was not disputed is prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate. On an interlocutory application, such an injunction should, in the absence of exceptional circumstances, be granted unless the defendant satisfies that court that there was an arguable case that she has a right to do that which the plaintiff alleged to constitute a trespass. Only if such the defendant could show such an arguable case should the court go on to consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy: Patel & others v WH Smith (Eziot) Ltd & another [1987] 1 WLR 853, English Court of Appeal, followed in Lea Tai Property Development Ltd v Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193, CA.”

35.  I fully accept these principles.  However, these principles would only be relevant if the plaintiffs have a strong case on trespass.  For the reasons set out above, I am of the view that the plaintiffs have failed to demonstrate this.  That being the case, I have to consider the balance of convenience.

36.  Mr Hu submits:-

(a)   There is a letter from the Buildings Department (“BD”) to the owner or occupant of the Building dated 29 August 2016 (“the BD Letter”), in which the BD stated that a canopy attached to the external wall facing No 49 Carnarvon Road was unauthorized building works, and the BD required immediate removal of that canopy.  If the Injunction is not granted, the BD may take action against the plaintiffs for non-compliance with that request.  Damages would not be sufficient and adequate remedy in this scenario.

(b)   Although the Canopy is now not touching the Wall, there are still some metal bars touching the Wall.  There is no evidence showing that the request in the BD Letter has been full complied with.

(c)   If the Injunction is granted, the defendant can simply move the Stall ½ meter from the Wall towards the Adjacent Building.  That would be sufficient to give the plaintiffs access to and enjoyment of the Wall.

(d)   The plaintiffs are the owner of the Building which is a very valuable asset, and they also have substantial rental incomes from the Building.  If it is found that the Injunction is wrongfully granted in the first place at trial, no doubt the plaintiffs would be able to compensate the defendant.

(e)   On the other hand, as a result of the judgment in DCMP 2043/2013, the defendant has the liability to satisfy a judgment debt.  It is certainly doubtful as to whether the defendant would be able to compensate the plaintiffs if the Injunction is not granted but the plaintiffs eventually succeed at trial.

(f)   Mr Hu fairly accepts that there is a delay in taking out the Injunction Summons (the application was taken about almost 14 months after commencement of these proceedings), but there is no evidence showing that the delay has caused any prejudice to the defendant.

37.  Mr Ho submits:-

(a)   The Canopy has already been moved and it is now not touching the Wall. The request in the BD Letter has been complied with.

(b)   The Fixed-Pitch Hawker Licence only authorises the defendant a pitch size of 914 cm x 60 cm (9,140 mm x 600 mm) next to the Building.  Clause 14 of the License further states that “The licensee should not extend the wall stall beyond the bounds of the fixed-pitch that is allocated to him”.  If the Stall is kept 50 cm from the Wall, the defendant would only have 10 cm x 914 cm of space to operate the Stall.  Effectively the defendant can no longer operate the Stall.

(c)   The defendant is likely to suffer irreparable damage if the Injunction is granted and it is found in the trial that the Injunction is wrongful granted in the first place.  The defendant has been working in the Stall as his only job for 42 years, and his profit generated from operating the Stall is the sole income for him and his family.  The defendant’s Fixed-Pitch Hawker License only allows him to operate the Stall next to the Building, but not elsewhere.

(d)   Further, if the defendant cannot run the Stall next to the Wall, he will be in breach of at least conditions 4 and 5 of the Fixed-Pitch Hawker License:-

“4. This license is subject to cancellation if the licensee fails to carry on the business at the stall.

5. Unless absent for some reasonable cause, the licensee shall be personally present at the pitch and conduct or superintend business there when the business is being carried on.”

(e)   On the plaintiffs’ own case, a hawker stall had been erected next to the Wall since the 1950s.  The plaintiffs have been used to having a hawker stall next to the Building for more than half a century.  On the plaintiffs’ case, the value of the Building is over HK$600 million and generating over HK$430,000 monthly rental incomes.  Any alleged inconvenience asserted by the plaintiffs (especially on financial grounds) must be illusory.

(f)   The delay in taking out the Injunction Summons showing that there would not be any irreparable damage to the plaintiffs caused by the Stall.

(g)   There is no satisfactory evidence showing that the defendant would not be able to compensate the plaintiffs if the Injunction is not granted but the plaintiffs later succeed at trial.

38.  In my view:-

(a)   The evidence shows that after the BD Letter, the defendant has moved the Canopy and it is now not touching the Wall.  I appreciate Mr Hu’s argument that there is no evidence showing that after this alteration, what has been required by the BD Letter has been complied with.  However, equally there is no evidence showing that there is still any non-compliance with the BD’s request.  Since the plaintiffs are the applicants in applying for the Injunction, the burden is on the plaintiffs to adduce evidence to show that notwithstanding what has been done by the defendant to the Canopy, the BD’s request has not yet been fully complied with.  There is no such evidence.  In the circumstances, the plaintiffs are unable to show that the balance of convenience has been tilted in favour of granting the Injunction as a result of the BD Letter.

(b)   There is no evidence showing why the plaintiffs should have immediate access to or enjoyment of the Wall.  No satisfactory evidence is provided to show any irreparable damage to the plaintiffs in the absence of the Injunction.  On the other hand, the delay in taking out the Injunction Summons is evidence showing that there is no irreparable damage to the plaintiffs if the Injunction is not granted.

(c)   I have taken the defendant’s liability to pay the judgement debt in DCMP 2043/2013 into account.  However, the plaintiffs’ pleaded case is that the defendant was paying a monthly rental of HK$5,000 to the plaintiffs until 1 March 2016, and the amount of mesne profits claimed by the plaintiffs is HK$5,000 per month.  Given the mesne profits claimed by the plaintiff is not a big sum and the defendant is running a business at the Stall, I am of the view that it cannot be said that the defendant would not be financially able to compensate the plaintiffs if the Injunction is not granted but the plaintiffs later succeed at trial.

(d)   Mr Hu submits that the Fixed-Pitch Hawker Licence in fact allows the defendant to move the Stall ½ meter away from the Wall and towards the Adjacent Building and the area of the Stall can remain the same.  With respect, I doubt the correctness of this submission.  As the name of the licence indicated, the Stall must be a fixed-pitch.  The plaintiffs have not provided any satisfactory evidence showing that the defendant may move the Stall to another location and that would not be in breach of the licence.

(e)   I accept Mr Ho’s submissions that if the Injunction is granted, that would ruin the defendant’s career of being a hawker selling fruits at the Stall, affect the defendant’s income and the life of the defendant’s family for a considerable period of time.  All these disruptions may not be being able to be compensated by monetary compensation at a later point of time.

39.  In my judgment, the balance of convenience is in favour of refusing the Injunction.

THE STRIKING OUT SUMMONS

40.  The Striking Out Summons is taken out under Order 41 rule 6, which provides:-

“The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.”

41.  The principles concerning applications pursuant to Order 41 rule 6 have been summarized by Barma J. (as he then was) in Chan Woon Fui v Chan Wing Suen and Others (HCCW 350/2004, 11 July 2005), in which the learned judge said:-

“4. The principles on which the court acts when considering whether or not to strike out matters in an affidavit pursuant to the rule were not, I think, seriously in dispute. For present purposes, I summarise them as follows:-

(1) Scandalous has the same meaning in Order 41 rule 6 as it does in Order 18 rule 19 dealing with the striking out of pleadings. Thus, degrading, indecent and offensive charges made in an affidavit will be regarded as scandalous if they are irrelevant or inadmissible in evidence to prove any material allegation in the petition (see e.g. Cashin v Cradock (1877) 3 Ch 376; Christie v Christie (1873) LR 8 Ch App 499, in the context of striking out a pleading);

(2) Matters which are material will not generally be struck out even if they are offensive, although where unnecessary detail is given, that may be susceptible to being struck out (see e.g. Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings).

(3) Irrelevant matter may be struck out even if not scandalous (Re J (An Infant) [1960] 1 All ER 603).

(4) It is wrong to include argumentative material in affidavits and such material may be struck out (see e.g. Deak v Deak Perera Far East Limited [1991] 1 HKLR 551).

(5) The court may take one of three approaches to an affidavit in which there is scandalous, irrelevant or oppressive matter:-

(a) It may decline to strike the matter out, on the basis that it is capable of excluding such material from its mind when deciding the issues which arise for decision; or

(b) It may think it appropriate to strike out some or all of the material complained of; or

(c) It may, in an extreme case, order the entire affidavit to be taken off the court file.

Which of these courses is adopted will depend on the circumstances of the case, regard being had to the nature and extent of the objectionable material.”

42.  In my view, reading in context, the relevant parts of the 4^th Affirmation of Chan Shiu Leung concern the defendant’s liability created by the judgment in DCMP 2043/2013, which would be relevant in considering the balance of convenience in the plaintiffs’ application for the Injunction.  The plaintiffs are entitled to put in these in the said affirmation.  There is no merit in the defendant’s striking out application.

DISPOSITION

43.  For the reasons above, I dismiss both the Injunction Summons and the Striking Out Summons.

44.  I have heard submissions on costs.  In my view, costs should follow the event.  I order that:-

(a)   costs of the Injunction Summons be to the defendant forthwith, with a certificate for counsel, to be taxed if not agreed;

(b)   costs of the Striking Out Summons be to the plaintiffs forthwith, with a certificate for counsel, to be taxed if not agreed.

To facilitate taxation, I record that 90% of the time in the hearing was spent on the Injunction Summons, and the remaining 10% was spent on the Striking Out Summons.

45.  Lastly, it remains for me to thank Mr Hu and Mr Ho for the helpful assistance provided to the court.