HUEY TAI INTERNATIONAL LTD. v. LEE SO MAN, GINA AND OTHERS

IN THE COURT OF APPEAL

1993, No. 35
(Civil)

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J U D G M E N T

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Litton, J.A., giving the judgment of the court:

1. This is an appeal against the judgment of Leong J in chambers given on 22 February 1993. The appellant is the plaintiff in those proceedings. The third defendant is a firm of interior decorators of which the first defendant is the general manager and the second defendant the project manager. By his judgment of 22 February Leong J. made three orders. (1) He dismissed the plaintiff's application to enter final judgment against the defendants under O.14 r1 of the Rules of the Supreme Court. (2) He struck out the counterclaim by the first and second defendants on the ground that the pleadings disclosed no reasonable cause of action, that it was frivolous and vexatious and an abuse of process, and ordered that the counterclaim be dismissed.

(3) He ordered a stay on the counterclaim brought by the third defendant under section 6(1) of the Arbitration Ordinance. This appeal is solely concerned with the first order namely the dismissal of the application under Order 14 r1 for final judgment against the defendants.

2. The appellant has in this court confined the relief sought to a final order for an injunction, any claim for damages having been abandoned.

3. The undisputed facts are these: (1) The plaintiff entered into an agreement on 28 May 1992 with the third defendant whereby the third defendant agreed to undertake renovation work in the plaintiff's premises on the 12th floor of Nine Queen's Road Central. The work involved only a portion of the 12th floor. (2) In July 1992 dispute arose between the parties concerning the work done and periodic payments by the plaintiffs then ceased. By the end of July 1992 work had stopped on the premises. (3) On 7 August 1992 the second defendant arrived at the 12th floor premises with a party of workmen demanding immediate payment of outstanding sums under the contract and staged a demonstration. They shouted protests, displayed banners, placards and posters and created a disturbance. (4) On the next day 8 August the first and second defendants went to the premises and asked for further payment of installments under the contract. (5) There were further negotiations between the plaintiff's general manager and the first and second defendants concerning the outstanding dispute. (6) By a fax dated 15 August 1992, the plaintiff denied the defendants' contention that they had completed the work within the contract period and said that the plaintiff would impose liquidated damages. It seems at that time that the architect had not yet issued any certificate of practical completion. The response was a fax of 17 August in which the defendants demanded payment of the outstanding amount by 4 p.m. that day failing which they would "take action". The nature of that action is not specified. (7) On 20 August 1992 the first and second defendants went again to the 12th floor with a party of workers with posters and placards to protest and demonstrate. They refused to leave and the police were called. They went to the police station but the matter could not be resolved. The first and second defendants and the workers returned to the 12th floor and continued their protest until the close of business.

4. Arising from these facts the plaintiff brought legal proceedings and on 22 August 1992 obtained an interim injunction to restrain further trespass and nuisance. On the return date of the injunction, 28 August, the defendants made no appearance and the injunction was continued. The statement of claim having been filed the defendants served their defence and counterclaim on 12 November 1992. This was then followed by the summons under Order 14 taken out by the plaintiff on 23 December 1992.

5. As regards the incident which took place on 7 August 1992 the Defence says "the workers were entitled to stay in the work area" and this has been elaborated on in an affirmation by the first defendant filed on 17 February 1993. In paragraph 10 she says as follows:

" On the 7th August 1992, the workers, who had at all material time working at the said premises were aggrieved when they knew that the Plaintiff had persistently withheld and/or delay payment of their wages, disputed with the officers of the Plaintiff. I am of opinion that by doing so, they only exercised their legitimate right to request for payment of their wages from the Plaintiff. Further, the workers were not trespasser since their occupation in the premises were under the approval and licence of the Plaintiff to perform the additional work there."

The statement that the workers were exercising their "legitimate right to require payment of their wages from the plaintiff" is extraordinary. These were employees of the third defendant and on no conceivable view of the facts could they have legitimate claims for wages against the plaintiff.

6. As regards what occurred on 20 August 1992 the first defendant in her affirmation said that the workers went to the premises out of their own accord exercising their "legitimate right to request payment of their wages and went on protest". By the expression "went on protest" we take this to mean that the defendants accept the plaintiff's assertion that they went to the 12th floor with placards and banners to demonstrate and protest; in other words to create a disturbance in those office premises.

7. The concluding passage of the first defendant's affirmation is as follows:

"Further the defendants denied that they had committed any object acts of nuisance complained. I respectfully submitted that the acts of the workers complained of did not amount, in law and in fact to a nuisance since the workers were justified and with reasonable excuse to request the plaintiff for payment of their wages. Further, I respectfully submit that the workers are entitled to hold honest opinion and expression against the plaintiff, as provided Article 16(1) and 16(2) of the Bill of Rights Ordinance."

8. The court must approach a case like this with a degree of robust commonsense. The burden is on the defendant on an order 14 application to satisfy the court that there is an issue or question in dispute which ought to be tried: Order 14 r.3 paragraph 1 RSC. The judge in his judgment said this:

"It is clear from the affidavits filed, there are substantial questions to be tried, such as whether the workers had a legitimate right to be on the premises of the plaintiff and whether they caused any nuisance or interference with the plaintiff's business and if so, whether the defendants, in particular, the 1st and 2nd defendant were parties to their nuisance or interference. The plaintiff before the issue of the summons must have known that there are these triable issues."

9. As regards the "legitimate right" of the workers to be on the premises, this is plainly illusory, if the judge was referring to their supposed claim for wages against the plaintiff. Going as they undoubtedly did to protest, with placards and banners, in the plaintiff's premises, the workers had no legitimate rights at all. It is absurd to suggest that they might have been there to work.

10. As to the individual involvement of the defendants, on the first occasion, 7 August 1992, only the 2nd defendant was present, but on the second occasion both the 1st and 2nd defendants went to the premises with the workers. The police became involved. It is difficult to see how on these facts there could be any real issue as to whether the 1st and 2nd defendants were parties to the nuisance or trespass.

11. Mr. Wong Po-hoi for the defendants argued that the 1st and 2nd defendants had dissociated themselves from the acts of the workers. We would reject this argument entirely. On his own submission the 1st and 2nd defendants "became an integral part of the demonstrations". And the 1st defendant swore an affirmation asserting the purported rights of the workers to protest.

12. In our judgment the affidavits disclose no triable issues and the judge erred in concluding that they did. We would accordingly set aside the judgment of the learned judge and make an order in terms of paragraph 1 of the summons of the 23 December 1992. The plaintiff is to have the costs of the action and of the appeal.