LAU OI KIU v. MAN CHUN SHING AND ANOTHER

HCA 1930/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1930 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1.  This is the trial of a claim in tort.  The plaintiff, Lau Oi Kiu (“Lau”), is now 85 years old.  Since around 1962, she farmed on Lot No 1354 in DD 95 (“Lot 1354”) and Lot No 1357 in DD 95 (“Lot 1357”) in Ho Sheung Heung, Sheung Shui, New Territories, Hong Kong (collectively “the Subject Lots”).  As a result of a series of events, involving in particular dumping of waste, that took place between July and October 2009, she had been ousted from the Subject Lots.  She claims that the 1^st defendant, Man Chun Shing (“Man”) and the 2^nd defendant, Hau Chi Keung (“Hau”) are liable for those events.

2.  Man is a licensed estate agent, and the manager of one Treasure Palace Property Agency Limited.  At the beginning of the trial, he conceded liability.

3.  Hau was the Indigenous Inhabitant Representative of Ho Sheung Heung (“the Village”), Sheung Shui District from 1999 to 2011; and since 2001, he has been the Resident Representative of the Village.  He is also the Chairman of the Sheung Shui District Rural Committee (“the Committee”) since 2007, an Ex‑Officio Member of the North District Council and an Ex‑Officio Executive Committee Member of the Heung Yee Kuk.  He denies liability.

4.  The main issues are:

(a) Whether Hau is liable?

(b) What remedies should be given to Lau?

B. THE PARTIES’ CASE

5.  Lau’s case may be summarized as follows:

(a) She had exclusive possession and control over the Subject Lots, and was the owner of the properties inside them. She and her late husband started to farm on the Subject Lots in about 1962.  Between 1962 and 1964, persons claiming to be representatives of the owner of Lot 1357 collected a load of grain per annum as rent.  No one collected any rent or licence fee from her since 1964.  She had erected fences on most of the boundaries of the Subject Lots; and a cottage hut for storing gardening tools and other properties.  She had levelled the ground and rendered the soil suitable for agricultural use.  She grew various types of plants, vegetables and fruit trees.  And she sold some of the produce.

(b) In about May 2009, Man and Hau asked and threatened her on a number of occasions to leave the Subject Lots for the purpose of constructing village houses and/or a passageway for vehicles.  She rejected the requests.

(c) Without her consent, Man and Hau as well as their agents and servants entered the Subject Lots and carried out various acts between early July 2009 and late October 2009.  Those acts included dumping of soil, debris and waste on the Subject Lots.  The ground was raised and levelled; and turf was laid.  As a result, all the plants and properties in the Subject Lots were destroyed.

6.  Man’s case may be summarized as follows:

(a) On 19 December 2007, he entered into a tenancy agreement (“the Tenancy Agreement”) for leasing various lands including Lot 1357 from one United Come Ltd (“UCL”) for agricultural and gardening practice at an annual rent of $8,000 for the period between 19 December 2007 and 18 December 2011.

(b) In February or March 2008, he offered to pay Lau a sum of $30,000 for her surrender of Lot 1357, which was rejected.  In a meeting held with Lau and her family members at Lau’s home in around June 2008, he increased the offer to $80,000, which was again rejected.

(c) In about June 2008, he engaged one Tang See Lun (“Tang”) to clear the sites that he had rented, but he instructed Tang to defer clearance of Lot 1357 as no agreement had yet been reached with Lau.

(d) On 13 July 2009, he received a call from Tang saying that he had been stopped from bulldozing work.  It transpired that Lau’s sons complained that Tang had bulldozed Lot 1357, and that certain commotion took place before he arrived at the scene.  The police was also summoned.

(e) He admitted that he was convicted of the following offences on 29 October 2010 at the Fanling Magistrates Court after trial:

(i) Contrary to section 60(1) of the Crimes Ordinance (Cap 200), during the period between 11 July 2009 and 12 July 2009, without lawful excuse damaged vegetables, fruit trees, seeds, herbs, agricultural tools and a hut belonging to Lau on Lot 1357 intending to damage such property or being reckless as to whether such property would be damaged.

(ii) Contrary to sections 20(7) and (8) of the Town Planning Ordinance (Cap 131) (“TPO”), during the period between 18 June 2009 and 17 July 2009, undertook a development, namely carrying out of engineering operation on land, that was filling of land, at Lot 1357 when it was within a plan of development permission area and included in the Kwu Tung North outline zoning plan prepared under section 3(1) of the TPO.

(iii) Contrary to sections 16A(1) and 18(1) of the Waste Disposal Ordinance (Cap 354) (“WDO”), on or before 13 July 2009, without the permission of any owner or lawful occupier, did cause to be deposited the waste, namely waste soil at Lot 1357.

7.  Hau’s case may be summarized as follows:

(a) He was never involved in any negotiation in respect of Lau’s surrender of the Subject Lots.

(b) On a day in late July 2009, he was told that there was a fighting incident involving Man and Lau’s sons at the Subject Lots.  He went to the scene in his capacity as the Indigenous Inhabitant Representative of the Village.  As his assistance was not required, he did not follow up the matter.

(c) He had not instructed anyone to carry out any work at the Subject Lots; and had not participated directly or indirectly in the acts complained by Lau.

C. LAU’S CAUSES OF ACTION

8.  Lau relies on three causes of action:

(a) trespass;

(b) private nuisance; and

(c) breach of statutory duty under section 21 of the TPO and section 16A of the WPO.

C1. Trespass

9.  There cannot be any doubt that the acts complained by Lau constituted trespass as they interfered with the possession of the Subject Lots.  In law, trespass is ordinarily actionable by a plaintiff who is in actual possession at the time his possession is infringed (Tort law and Practice in Hong Kong (3^rd edn, 2014), § 10.001).  Mr Chan, acting for Man and Hau, accepted that, although Lau was not the registered owner of the Subject Lots, she has the locus standi to sue in trespass as she was in possession of the Subject Lots at the material time.

C2. Private nuisance

10.  Trespass differs from nuisance in that the former is a direct as opposed to a consequential infringement of another’s right, and is actionable without proof of damage, whereas damage must be proved in nuisance (Clerk & Lindsell on Torts (21^st edn, 2014), § 19‑08, p 1348).  The distinction may be on certain facts an exceedingly fine one, but it will not normally become vital to the claimant’s claim where he can allege and prove special damage (Clerk (supra), § 20‑02, p 1397).  In this case, the distinction is not vital; the claim in nuisance does not add anything in substance to the claim in trespass.  I agree with Mr Chan that this cause of action is otiose.

C3. Breach of statutory duty

11.  The legal question is whether a breach of section 21 of the TPO or section 16A of the WPO gives rise to a private law cause of action.  As Kwan JA held in Dah Sing Insurance Services Ltd v Gill Gurbux Singh [2014] 1 HKLRD 691 at 708, § 59, the principles to be applied in determining whether a cause of action exists for breach of statutory duty are as propounded by Lord Browne‑Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 731D‑732B:

“The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action … However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by the Parliament to have a private remedy …”

12.  In short, it is a matter of construction of the statute in question.  In this case, the starting point is that neither the TPO nor the WDO contains an express provision creating a civil cause of action.

13.  More importantly, both statutes contain other means of enforcing the statutory duty:

(a) Under the TPO, section 21 creates a criminal offence of unauthorized development.  A person convicted of such offence for the first time is liable to a fine of $500,000; and a repeated offender is liable to a fine of $1,000,000.  In addition, under section 23, the Director of Planning may issue a notice on a land owner, an owner or a person responsible for the relevant matters to require such person to discontinue the unauthorized development and to reinstate the land.  Failure to comply with the statutory notice is a criminal offence, the conviction of which will result in a fine calculated by reference to the period of non‑compliance.  The Director of Planning may also enter the land and take whatever steps he considers necessary to ensure discontinuance of the unauthorized development and to reinstate the land; and expenses incurred as a result are recoverable as a civil debt from any person served with the notice.  Furthermore, a notice served under section 23 shall be registrable in the Land Registry.

(b) Under the WDO, section 16A creates a criminal offence for unlawful depositing of waste.  Section 18 provides that a person commits an offence under section 16A is liable to a fine and imprisonment.

14.  As the United Kingdom Supreme Court reaffirmed in Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934 at 1944, § 29:

“As Lord Browne-Wilkinson explains, if a statute provides some means, other than a private law action for damages, of enforcing any duty which it imposes, that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action.”

15.  However, I agree that the existence of enforcement measures other than a private right of action in the two statutes is not conclusive.  It is necessary to consider whether the legislations were intended to protect a particular class of persons under those statutes.  In Morrison Sports Ltd (supra) at 1946, § 38, the United Kingdom Supreme Court indicated that one should consider whether it is difficult to identify any limited class of the public for whose protection the statute in question was enacted and on whom the legislature intended to confer a private right of action for breach of the statute.

16.  Mr Yeung, acting for Lau, identified the class of persons to be protected under the two statutes to be the owners or occupiers of the land in question who have been adversely affected by the unauthorized development or unlawful waste disposal.  I agree that they are likely to be the persons who will be most directly affected by such acts.  But it does not follow that they are the only persons that the legislature intended to protect.  The two statutes are concerned mainly with town planning and environmental protection.  It is clear that persons other than owners or occupiers of the land in question may be affected by the unauthorized development or unlawful waste disposal, although the impact may be less direct or significant.  It is a matter of degree.  I take the view that the following observation of Lord Browne‑Wilkinson in X (Minors) (supra) at 732 is equally applicable to the present case:

“Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.”

17.  Furthermore, there are clear indications in the two statutes that they were enacted for the benefit of society in general rather than a defined limited class of the public:

(a) The long title of the TPO provides that its objective is “to promote the health, safety, convenience and general welfare of the community …”.

(b) The long title of the WDO provides that its objective is to “provide … for the protection and safety of the public in relation to” the disposal of waste.

18.  Lastly, an indication that a civil action does not arise from the statute is that the common law already contains adequate remedies to enforce private rights in the area in question.  In the present context, any person who has suffered loss and damage as a result of a breach of section 21 of the TPO or section 16A of the WDO will and should have a viable cause of action against the wrongdoer in trespass or nuisance in tort under the common law (as in this case).  Mr Yeung referred to section 23 of the TPO and submitted that, if the government authority serves a statutory notice on the owner or occupier, who is in fact the victim of the wrongdoing committed by a third party, it will be unfair if the victim does not have a private cause of action under the statute.  However, section 23(1) empowers the Authority to serve a notice on “a person who is responsible for the relevant matters”.  Further, the victim may seek appropriate remedies against the wrongdoer in trespass or nuisance or both.

19.  For these reasons, I hold that Lau does not have a cause of action against Man or Hau for breach of statutory duty.  And, as Mr Chan submitted, the cause of action in this respect, even if sustainable in law, is otiose in practice.

20.  There is indeed only one real issue on liability, which is a factual issue: whether Hau is liable for trespass.

D. WHETHER HAU IS LIABLE

D1. General observations on credibility of the witnesses

21.  The burden is on Lau to prove on a balance of probabilities that Hau was involved in the acts of trespass.  How the factual issue should be resolved depends on the credibility of the witnesses.  While I shall consider their evidence in respect of the material factual disputes below, it is pertinent for me to set out my observations on their general credibility after seeing and hearing them in court first.

22.  Lau and her two sons, namely, Hau Tai Lok (“Tai Lok”) and Hau Tai Man (“Tai Man”), gave evidence.  Lau is an old lady, and is illiterate.  She spoke with an accent of her own dialect. Understandably, she had difficulties in understanding some of the questions and expressing herself on some occasions.  Nevertheless, I find her to be an honest witness who has tried her best to tell the court the truth.

23.  Tai Lok admitted that he does not like Hau, and he is aggrieved that the police decided not to take any action against Hau despite the complaints made by his family.  His ill feelings against Hau are likely contributed by what, in his belief, Hau had done to Lau and his family.  Nevertheless, he gave evidence in a straightforward manner.  I find him to be a reliable and credible witness.

24.  Tai Man gave evidence in a calm and straightforward manner.  I also find him to be a credible witness.

25.  In contrast, I find both Man and Hau to be unreliable and incredible.  Although they are represented by the same legal team, it is odd that they did not speak in one voice on a number of material issues; and they tried to distance and dissociate themselves from each other.

26.  It appears that Man was determined to take all the blames.  In most cases when he was questioned about Hau’s involvement in the wrongful acts, he became evasive. The upshot of his evidence is that he did not know about Hau’s involvement in any of the incidents at all.  It is, however, telling that, in the verdict delivered by the magistrate in the criminal case against him, the magistrate stated that Man’s counsel submitted expressly or implicitly that various unlawful acts could have been committed by Hau.  In Man’s oral evidence, he denied that he had given instructions to his lawyer to make such submissions.  I find his evidence in this respect incredible.  I am under a distinct impression that, for whatever reasons, Man was trying to assist Hau to escape liability; or at least, not to say anything which may implicate Hau, at this trial.

27.  Hau was a poor witness.  He was impatient, defensive and argumentative; and, frequently, he said what he liked to say instead of answering questions.  I appreciate that his demeanour may be attributed to his personality.  What has caused me greater concern is that, on the one hand, he stressed that he is always a selfless, altruistic and enthusiastic head of the Village; and he had done many things to help his fellow villagers in the interest of the Village as a whole. But, on the other hand, when it came to questions concerning the wrongful acts in this case, he became indifferent and ignorant.

28.  Hau has also not taken these legal proceedings seriously.  He knew that serious allegations had been made against him.  Yet, his defence is, in substance, a bare denial.  His witness statement is four‑page long containing 15 paragraphs only.  Mr Yeung submitted correctly that, by virtue of Order 18, rule 13(5), Rules of the High Court, Hau was not entitled to call evidence to put forward a positive case.  In practice, what happened is that Hau provided explanations on various allegations against him for the first time in cross‑examination. Inevitably, this has an adverse impact on the credibility of his oral evidence.

29.  I shall now turn to the material facts.

D2. Lau’s possession of the Subject Lots before July 2009

30.  Although Lau was not the registered owner of the Subject Lots, there is ample and indisputable evidence that, well known to her fellow villagers and including Man and Hau, she had been farming on the Subject Lots for a long time.

31.  The practical importance of this fact is that it posed an obstacle to anyone else who wished to use the Subject Lots or any part thereof for any purpose.  There were two ways to remove the obstacle: to obtain Lau’s consent by agreement; or by force.  Who would be interested in using the Subject Lots or any part thereof at the material time?

D3. The tenancy agreement

32.  Man said that he had rented, among other lots, Lot 1357 pursuant to the Tenancy Agreement.  The landlord was UCL, a Hong Kong company which purportedly acted on behalf of one Shenzhen Xiang Xi Practical Co Ltd.  However, neither of them was the registered owner of Lot 1357.  The registered owner was and is Cheung Ho Wa Tong.

33.  Putting aside the legal validity of the Tenancy Agreement, one wonders why Man, as an estate agent, would be interested in renting a piece of agricultural land.  He explained in court that he intended to sub‑let the lands to horticultural companies.  What is also curious is that, to his knowledge, Lot 1357 was not vacant, and Lau was occupying it at that time.  There is no evidence that he had made any inquiries about Lau’s interest before he entered into the Tenancy Agreement.

34.  What is more important is that, on the face of the Tenancy Agreement, Man had the right to claim possession of Lot 1357.  As one shall see, Man relied on the Tenancy Agreement to try to persuade Lau to vacate Lot 1357.  But before turning to the negotiations concerning Lau’s surrender of the Subject Lots, it is necessary to consider Hau’s interest in the lands near and adjoining the Subject Lots.

D4. Hau’s interest in the lands near and adjoining the Subject Lots

35.  Tai Lok suspected that Hau had received money in return to granting permission to unknown third parties to dump waste on, among other lands, the Subject Lots in the Village.  I am not satisfied that his suspicion that Hau had received money is substantiated by evidence.  Having said that, as the head of the Village, it was likely that he was aware of such wrongful activities.  On the other hand, and more importantly, there is evidence that Hau had interest in the lands near or adjoining the Subject Lots.

36.  By a sale and purchase agreement dated 19 November 2005 (“the SP Agreement”), Hau and one Hau Yuet Keung bought three lots, namely, Lot Nos 1358RP, 1363 and 1368 from one Ottar Investment Ltd (“Ottar”) at $5,100,000.  Under the SP Agreement, the parties agreed that the three lots shall be sub‑divided into smaller building lots on which the purchaser shall erect houses (clauses 2, 3 and 4).  The purchaser was obliged to obtain all requisite consent, approval and authorization from the government authorities in relation to the construction of the houses (clause 4.2).  The purchaser had the option of paying the balance of the price in the sum of $5,000,000, or assigning one of the houses to the vendor upon completion (clause 5).

37.  Under clause 8 of the SP Agreement, the purchaser agreed to procure one Charter Glory Industrial Ltd (“Charter Glory”) to execute a performance bond to secure the obligations of the purchaser, and warranted that Charter Glory would be the developer of the said lots funding the development.  Hau and Hau Yuet Kau used to be the shareholders of Charter Glory; they subsequently transferred their shares to Hau Chi Kong (“Kong”), Hau’s brother, on 7 October 2009.

38.  Pursuant to the SP Agreement, by a Deed Poll dated 14 December 2005, the three lots were sub‑divided into nine lots, namely, Lot Nos 1358SA, 1358SB, 1358SC, 1358RP; Lot Nos 1363A, 1363B and 1363RP; and Lot Nos 1368A and 1368RP.

39.  It is significant to note that, among the above lots, Lot 1358SA and 1358SB are adjacent to Lot 1357.

40.  In respect of Lot 1358SA, on 24 November 2006, Ottar assigned it (with Hau and Hau Yuet Kau as confirmor) to one Hau Wai Chun at $900,000.  It appears that the assignment was to facilitate the construction of a village house.  A building licence was obtained on 23 February 2011 and a certificate of compliance was issued on 15 May 2013.  Upon completion of the construction of a house, on 1 April 2014, it was assigned to Cheung Suet Lin at $9,800,000.  The address of the house is No F108 Ho Sheung Heung, Sheung Shui North, New Territories.

41.  In respect of Lot 1358B, on 15 December 2005, Ottar assigned it (with Hau and Hau Yuet Kau as confirmor) to one Hau Chi Yin at HK$900,000.  Again, it appears that the assignment was to facilitate the construction of a village house.  A building licence was obtained on 13 February 2009 and a certificate of compliance was issued on 14 May 2013.  Upon completion of the construction of a house, on 10 September 2013, it was assigned to Huang Heng and Liao Xiaojuan at $9,800,000.  The address of the house is No F109 Ho Sheung Heung, Sheung Shui North, New Territories.

42.  Next to these two houses on Lot 1358SA and 1358SB are two other similar village houses built on Lot Nos 1360SA and 1360SB.  There is, however, insufficient evidence that they were beneficially owned by Hau or related to him.

43.  Nevertheless, Hau admitted in his oral evidence that he had interests, through companies in which he held shares, in many lands adjoining or near the Subject Lots in the Village, and also in the development of village houses on those lands.  However, he said that he was not personally involved in the management of the companies, or the development of houses.

44.  It is crucial to note that the Town Planning Board imposed various conditions concerning the construction of village houses on the above lots adjoining the Subject Lots.  The Director of Planning had issued a notice under section 23(1) of the TPO in relation to, among other lots, the Subject Lots.  The recipients of the notice applied for a review pursuant to section 24 of the TPO.  The Planning Department responded in writing in October 2009.  It was stated in § 3.5 of the written response that the Town Planning Board had issued a planning permission in mid‑2008 approving the construction of four small houses on Lot Nos 1358SA, 1358SB, 1360SA and 1360SB subject to various conditions including the provision of fire passageway.  Surprisingly, Hau denied that there was such a requirement in cross‑examination.

45.  There is no evidence as to where the fire passageway needed to be built.  However, the close proximity between Lot 1357 and the four said lots supports that Lot 1357 may and could be used for such purpose.  However, in order to use Lot 1357 for such purpose, it was essential to obtain the consent of Lau who was then in possession of the Subject Lots.  There were indeed attempts to persuade Lau to give permission to use part of the Subject Lots for such purpose, and even to give up possession thereof.  I shall now turn to the negotiation in this respect.

D5. Negotiations

46.  Lau and Tai Lok said that:

(a) In about February or March 2009, Man and Hau went to Lot 1357.  They offered to pay Lau a sum of $20,000 in exchange of her permission to use 1,000 sq ft on that lot for the construction of a vehicular access road to the village houses to be built nearby.  She rejected the request.

(b) In about April or May 2009, Hau called or met Tak Lok face‑to‑face, and increased the offer to $80,000.  Upon Lau’s instructions, Tai Lok rejected the revised offer.

(c) On a day in May or June 2009, Man went to Lau’s home.  Lau was not there; and only five of her sons including Tai Lok were present.  Man claimed that he had rented Lot 1357 and asked Lau to stop farming on it.  Although Man showed a tenancy agreement to them, he refused to let them inspect the document.  They rejected Man’s request.  Man then said that, unless they gave up using Lot 1357, he would use other means to recover possession of the land.

47.  On the other hand, Man stated that:

(a) In about February or March 2008, he visited Lot 1357.  He told Lau that he had rented the land and would like to recover possession.  He offered her a sum of $30,000 for her surrender of Lot 1357.  Lau rejected his offer, and asked him to contact her sons for further negotiations.

(b) He met Lau and five of her sons at Lau’s home in June 2008.  He showed them the Tenancy Agreement, and explained again that he would like to have vacant possession of Lot 1357 as soon as possible for agricultural and gardening practice.  He also increased his offer to $80,000.  However, they rejected his revised offer.

(c) There was no further negotiation after that.

48.  Hau said that he was not involved in any negotiation with Lau or her family, and had no knowledge thereof.

49.  Although there are disputes regarding the time and content of the negotiations, Man agreed that Lau refused to vacate Lot 1357 in spite of his offers for compensation.  The material issue is whether Hau was also involved in the negotiations.

50.  On a balance of probabilities, I hold that Hau was involved as I prefer the evidence given by Lau and Tai Lok to that given by Man and Hau:

(a) Lau in her police statement dated 28 July 2009 and Tai Lok in his police statement dated 12 July 2009 both stated that Hau was involved in the negotiations and said that he needed part of the Subject Lots to built a road for the village houses to be constructed nearby.

(b) According to the verdict delivered by the magistrate in the criminal case involving Man, the magistrate stated that Man’s counsel submitted that the head of the village, which must be Hau, had gone with Man to Lot 1357 to ask for permission to use it to build a road. As mentioned, I find Man’s denial that he had given instructions to his lawyer to make such submissions to be incredible.

(c) In cross‑examination, Man said he could not recall whether he had mentioned the need to build a road in the course of negotiations.  It is hard to believe that he was prepared to offer $80,000 to recover possession of Lot 1357 for agricultural and gardening purpose.  He said that he expected to sub‑let Lot 1357 at around $3,000 to $4,000 a month.  The total amount of rent that he could have received under the four‑year lease would be around $48,000 at the maximum.  The amount that he offered to Lau seems to be disproportionally high.  One must also bear in mind that, on his evidence, at the time of the negotiations, he had not yet secured any sub‑tenant.

(d) In contrast, owing to Hau’s interest in the development of the village houses nearby and the need to build a road for them, it was inherently probable that Hau would take part in the negotiations personally in the hope of persuading Lau to grant the permission.

51.  Lau’s refusal to grant the permission or give up possession of the Subject Lots provides a plausible and logical explanation for what happened subsequently.

D6. What happened in early to mid‑July 2009

52.  In about May 2009, Lau already discovered that a large amount of waste had been dumped on the lots near the Subject Lots.  She informed Tai Man accordingly.

53.  At about 10:00 am on 3 July 2009, when she went to the Subject Lots, she saw people carrying out land filling activities and some soil had covered part of the Subject Lots, mainly, Lot 1354.  She was very shocked and informed Tai Man immediately.

54.  Tai Man said that, when he arrived at the scene, he asked the people operating the dump trucks why they dumped waste on the Subject Lots.  The person‑in‑charge, Tang, told him that it was the village head “Keung Gor” who instructed him to do so; and that Tai Man may approach “Keung Gor” if he had any questions.  Tai Man believed “Keung Gor” was a reference to Hau.  Tai Man called the police.  After the police arrived, Tang tried to call “Keung Gor” but he was not in Hong Kong.  After a short while, a son of Hau called “Chung Tsai” came.  “Chung Tsai” agreed to remove the waste covering the Subject Lots, and promised that such incident would not happen again.  Tai Man’s evidence in this respect is consistent with what he stated in his police statement and the statement he made to the Environmental Protection Department both dated 5 October 2009.  Tai Man agreed that he did not see any dumping of waste on the Subject Lots in his presence, but he observed that part of the Subject Lots had already been covered by waste.  Tai Man’s evidence on what happened on this occasion has not been contradicted by any evidence.

55.  Hau said in court that he was unaware of the incident.  He said that “Keung Gor” may not be a reference to him; but he admitted at the same time that he was sometimes addressed as “Keung Gor”.  Hau also said he did not have a son called “Chung Tsai”.  Hau knew and ought to have known that a serious allegation had been made against him.  He could and should have asked his sons to clarify whether any of them was involved in the incident as claimed by Tai Man; and if so, to explain what happened in fact.  However, Hau had not done so.  His failure to ask any of his sons to give evidence in this respect is a matter that I am entitled to take into account to draw an adverse inference against him.  I hold that he was involved in the incident on 3 July 2009.

56.  Lau said that, despite what happened on 3 July 2009, she was able to continue to farm on the Subject Lots for about another week.

57.  She finished farming on the Subject Lots at about noon on 11 July 2009.  However, when she returned to the Subject Lots at about 6:00 am on the next day ie 12 July 2009, she was shocked to discover that about 9,000 sq ft in the Subject Lots had been covered by waste.  The irresistible inference is that the dumping took place between noon on 11 July 2009 and 6:00 am on 12 July 2009.  She informed Tai Lok to call the police.

58.  However, the dumping did not stop.  At about 6:00 pm on 13 July 2009, she and Tai Lok discovered that about another 2,000 sq ft of the Subject Lots were covered with waste.  The waste had been piled up to about 2 metres high, and had buried the plants and properties originally in the Subject Lots.

59.  What is most important is that Lau and Tai Lok said that, on 13 July 2009, they saw Hau standing on Lot 1357, and instructing the driver of a dump truck to bulldoze the waste onto Lot 1357.  Tai Lok called the police.  In cross‑examination, Tai Lok admitted that it was very noisy and he could not hear what Hau said to the driver.  But he saw Hau using hand signals (with demonstrations in court) to instruct the driver to push the waste to cover various areas in Lot 1357.  He said that Hau was not signalling the driver to stop, which would and should involve very different hand signals. He said he had observed what Hau did for two to three minutes.  I am satisfied that the hand signals demonstrated by Tai Lok in court, which resembled a sweeping and covering motion horizontally, would be regarded by any reasonable man to be an instruction to push the waste towards a particular direction and to deposit it in a particular area.  I agree that such gesture could not be an instruction to stop the work.

60.  Hau gave an entirely different version.  He said that, on 13 July 2009, he was informed that there was a fighting incident at Lot 1357.  He could not recall who told him so.  As the Indigenous Inhabitant Representative of the Village, he went to the scene.  He saw that Man was engaged in a commotion with some of Lau’s sons.  They wrestled with one another, and, at one point, Lau’s sons (or one of them) held a piece of rock threatening to attack Man.  They did not stop even after the police had arrived.  Although the quarrel continued, as his assistance was not required, he left.

61.  On the other hand, Man said that, on 13 July 2009, he received a call from Tang that someone had stopped him from doing the bulldozing on Lot 1357.  He learnt later that the complainants were Lau’s sons.  He also understood that there was certain commotion at the scene before he arrived at the scene.  In cross‑examination, he denied that he was involved in any fight on that day.  He said he did not see Hau at all.

62.  I prefer the evidence of Tai Lok to that of Hau or Man for the following reasons:

(a) Hau’s evidence is inconsistent with that of Man.

(b) It was inherently improbable that the commotion continued in the violent manner as described by Hau even after the police had arrived.

(c) And if what Hau said is true, it is improbable that there is no documentary record of any such incident by the police at all.

(d) Lok’s evidence is consistent with what he stated in his statement made to the Environmental Protection Department on 21 July 2009; and his police statements dated 5 October 2009 and 11 April 2011.

(e) It is noteworthy that he stated in his statement to the Environmental Protection Department and his second police statement that, when he questioned Hau while the police was also present, Hau explained that he was merely asking the workers to stop the dumping.  Tai Lok was aggrieved that, apparently, the police chose to believe what Hau said.  But the point is, if Lok intended to make a false story against Hau, I see no reason why he needed to include such an exculpatory statement for the benefit of Hau in the story.

(f) Similarly, he admitted in his two police statements that he could not hear Hau saying anything to the workers.  If he was minded to make a false allegation, he could have easily said that he heard Hau giving oral instructions instead of or in addition to using hand signals.

(g) Mr Chan submitted that Tai Lok could have misunderstood Hau’s gesture.  However, it must be borne in mind that Hau’s evidence is that he only went to the scene at a late stage and had not given any instruction by whatever means to the dump truck driver.

63.  For these reasons, I hold that Hau was involved in the dumping of waste on the Subject Lots since early July 2009.

64.  Man, in light of the criminal convictions, admitted that he was involved.  I do not believe his allegation in court that the dumping on Lot 1357 was accidental and that he intended to use the land for horticultural purpose.  Apart from various curious features in his evidence in this respect mentioned above:

(a) Man claimed that he instructed Tang to clear the lots that he had rented under the Tenancy Agreement to render them suitable for agricultural and gardening purposes.  He took Tang to the lots to ensure that Tang could identify them.  However, he specifically instructed Tang not to clear Lot 1357 as he had not yet reached any agreement with Lau.

(b) Although he said he had instructed Tang to put soil suitable for horticultural purpose on the land, the relevant photos (which were put to him in cross‑examination) show that the materials dumped on or near the Subject Lots included a lot of waste which was not suitable for such purpose.

(c) Man also admitted that he was unaware that Tang had any expertise in gardening.  It is difficult to understand why he would entrust Tang with the duty of putting suitable soil on the land for horticultural purpose.

(d) If what Man said was true (ie that he had instructed Tang specifically not to clear Lot 1357), Tang would be acting contrary to his instruction.  Indeed, Man said in court that he was furious at what Tang had done.  He said that he did ask Tang to explain why Tang did not obey his instruction, but Tang did not answer.  He repeated the same question many times but was also ignored by Tang.  Tang’s alleged reaction is strange and inexplicable.  Man also agreed that he made no attempt to ask Tang to give evidence.

(e) According to the verdict delivered by the magistrate in the criminal case against Man, Tang gave evidence as a prosecution witness.  Tang said that, in June 2009, Man took him to Lot 1357 to carry out work there.  The magistrate found Man guilty of criminal damage because he held that Man intentionally instructed Tang to dump the waste on Lot 1357.

(f) Further, according the verdict delivered by the magistrate, on 16 July 2009, the officials of the Planning Department observed that different types of waste had been piled up to about 1.76 to 2 metres high in Lot 1357; and the waste was not suitable for agricultural purpose.  Indeed, as the magistrate observed, Lau had been farming on the land for many years.  The soil was plainly suitable for agricultural purpose.  There was no good reason why another layer of soil should be put on top for the same purpose.

65.  My finding against Hau as to what happened on 3 July 2009 and 13 July 2009 is of utmost importance in considering Hau’s liability.  In practice, Lau had lost the use and occupation of the Subject Lots since 12 July 2009.  However, the story does not end here.

66.  It appears that the destruction of the Subject Lots was almost complete by the end of 13 July 2009.  Tai Lok said in his statement to the Environmental Protection Department that, when Lau returned to the Subject Lots on 12 July 2009, about 70% of Lot 1357 had been covered by waste.  And by the end of 13 July 2009 when the dumping stopped, about 90% of Lot 1357 had been covered by waste.  But he said further that the dumping continued on 14 and 15 July 2009, and stopped finally by 16 July 2009. 

D7. What happened from mid‑July to late October 2009

67.  There is a fundamental difference in Hau’s case as to his involvement in what happened before mid‑July 2009 and what happened after that.  As mentioned, in respect of what happened before mid‑July 2009, he claimed that he was not involved and had no knowledge at all.  He said he had little knowledge of who was responsible for the dumping of waste although he was the head of the Village.  He tried to put the blame on people like Man and Tang.

68.  In contrast, as to what happened after that, Hau admitted that he was involved.  Before considering his explanations about his involvements, I shall summarize what happened on the Subject Lots from mid‑July to late October 2009 first. 

69.  The photos and videos taken by Lau’s family members, which speak for themselves, show that Hau went to the Subject Lots and did various things during this period.  I shall summarize the more important events only:

(a) On 14 July 2009, Hau went to the scene and was interviewed by reporters.

(b) On 19 July 2009, a wire fence was erected around a substantial part of Lot 1357.

(c) On 20 July 2009, a layer of soil was put on top to cover up the previous dumping of waste.

(d) On 28 July 2009, various persons, in particular, one Koo Li Kwan (“Koo”), claiming to represent the Committee were present.  Koo claimed that he was acting for the Committee and had been authorized by the owners of the lands to level them.

(e) On 29 July 2009, a group of villagers including Tai Lok and Tai Man signed a letter of complaint in which they said they suspected that Hau was involved in the wrongful dumping.  A news report on that day stated that Hau had promised to clear the waste and that the dump trucks were arranged by Hau to carry out such work; but in fact, there was further dumping.

(f) On 30 July 2009, fruit trees started to be planted on the Subject Lots.

(g) According to news reports on 31 July 2009, Hau said he had arranged dump trucks to clear the waste; he planned to plant 300 fruit trees on the lands in order to restore and improve their condition; he said he had been authorized by the owners to do so and he expected that the work could be finished within 10 days. 

(h) On 2 August 2009, Hau inspected the Subject Lots and hosed the fruit trees.

(i) On 12 October 2009, Kong and Tang instructed workers to put soil on and turf the lands; Hau was there. According to news reports on 13 October 2009, Hau said again that they had been authorized by the owners to improve the condition of the lands and they were not dumping waste.

(j) On 15 October 2009, Hau gave instructions to the workers to continue with the work on the lands.  One of the workers sprayed water on one of Lau’s family members with a hose.  Hau was seen talking to that worker.  However, it is unclear whether Hau was giving instructions to the worker to do so.

(k) On 19 October 2009, Hau was seen hosing the lands.

(l) On 21 October 2009, Hau was seen giving instructions to the workers to carry out works on the lands.

(m) On 22 October 2009, Hau was seen gave instructions to a dump truck driver.  In a video taken on that day, Hau was seen asking Man whether it was good or not (referring to the condition of the land).  Man, however, said in court that he could not hear Hau.

70.  Three general points should be noted. First, Hau admitted in court that the lands on which various works were done included the Subject Lots.  Second, these works were done without the consent and permission of Lau.  Third, they were carried out in the presence of officials from various government departments, including the police, the Planning Department and the Environmental Protection Department.

71.  It is difficult to understand, in respect of these events taking place between mid‑July and late October 2009, why Hau chose to plead a bare denial in his Defence, and did not explain his involvement at all in his witness statement.  This is a matter that I shall take into account in considering his explanations given for the first time in cross‑examination.

72.  It is clear that Koo was heavily involved in various works done on the Subject Lots.  Hau said that he did not know, and could not even recognize, Koo.  But in a letter addressed to the secretariat of the Legislative Council signed by him dated 9 November 2009, he stated that Koo was authorized by the Committee to carry out the works.  One must not forget that Hau was the chairman of the Committee.  Hau said in court that, he had asked his brother, Kong, to find someone to improve the condition of the lands (including the Subject Lots) after he came to know about the dumping of waste.  He believed Ko was engaged by Kong.  He agreed that various works were done with his permission and knowledge.

73.  Hau also claimed in court that the works done on the Subject Lots conformed to the requirements of the Planning Department.  As mentioned, the Planning Department had issued a statutory notice under the TPO.  According to a letter issued by the Legislative Council Secretariat dated 16 December 2009, the Planning Department indicated on many occasions that to level, plant fruit trees and turf the Subject Lots would not meet the requirement of restoring them to their original state under the statutory notice.  Hau’s evidence in this respect is untrue.  I do not believe he genuinely believed that the government would find those works acceptable.

74.  Hau also claimed that he did not know who paid for those works.  He said the Committee had no money.  I am surprised at his alleged ignorance in this respect.  According to some news reports, he had said that the Committee would pay first and then seek reimbursements from the owners of the lands.

75.  Nevertheless, Hau’s main point is that the Committee had been authorized to carry out those works; and his involvement was due to his capacity as the chairman of the Committee and the head of the Village.

76.  I agree with Mr Yeung that, on the pleading, it is not open to Hau to run a defence that the acts in issue were done with the authorization of the true owners of the Subject Lots; and hence, they did not constitute trespass.  Hau has not pleaded any such defence.  I also note that the defence of jus tertii is controversial in law.  Further, and in any event, Hau’s assertion is unsustainable in fact.  There is simply no evidence that the true owners had authorized those acts.

77.  As to Lot 1354, the registered owners were Hau Hon Hing, Hau Yun Wan and Hau Yin Fung, who were relatives of Lau and had emigrated overseas.  Hau Yun Wan had passed away.  In cross‑examination, Hau said that he had obtained a written authorization from Hau Hong Hing to carry out various works on Lot 1354.  Such document, if exists and genuine, would be inconsistent with a letter by Hau Hon Hing dated 30 July 2009 in which he stated that he was unaware of the dumping of waste, and had authorized Tai Lok to deal with the matter.  Hau said that Hau Hon Hing gave him the written authorization after learning in a long distance call with him that Tai Lok was unable to help.  Hau said in court that he had in his possession a copy of the document.  As Hau never mentioned the alleged written authorization before; and even Mr Chan, acting for him, said that he was caught by surprise, I granted a short adjournment to enable Mr Chan to take instructions from Hau.  No application was made by Hau at the end.  I reject Hau’s evidence on this point.

78.  As to Lot 1357, the registered owner was and is Cheung Ho Wa Tong. There is no suggestion that any proper authorization could have been and had in fact been obtained to carry out those works on Lot 1357.  Hau said he thought it was Man’s business as to what to do with Lot 1357 as, according to his understanding, Man had rented it.  He agreed that there were some discussions between him and Man.  But if Lot 1357 was Man’s own business, it is difficult to understand why Hau, or the Committee, would see the need to carry out the works there at all.

79.  Man’s evidence in this respect is also curious.  He admitted that he went to the Subject Lots on a number of occasions after 13 July 2009.  He noticed that various works were done on Lot 1357, which he had rented.  But he said he did not know who did those works.  It is puzzling why he did not try to find out who was responsible.  He said he was already in trouble because of the wrongful dumping in early July 2009.  If he did not want to get into more troubles, it was most natural that he should and would find out who carried out further works on Lot 1357 and why.  He knew Hau; and he admitted that he met Hau at least on one occasion after 13 July 2009.  Strangely, he said he did not take the opportunity to make enquiries with Hau.  As mentioned, despite that the video shows that Hau was speaking to him on 22 October 2009, he said he did not hear Hau at all.

80.  For these reasons, I have no doubt that Hau is liable for the acts of trespass committed during this period.

D8. What happened after October 2009

81.  As mentioned, Hau’s case is that the Committee was merely making efforts to restore the Subject Lots to a condition meeting the government’s requirement.  In fact, the Subject Lots were never restored to any state bearing any similarity to the state before early July 2009.

82.  Quite the contrary, the condition of the Subject Lots changed further in significant manner since late 2011.  In about August 2011, a wall was erected at the north side of Lot 1357.  In October 2011, construction of village houses on the adjoining lots, ie Lot Nos 1358 and 1360 began.  By about October 2013, it appears that the construction of four village houses on those lots was completed.

83.  More importantly, the following structures have been built on Lot 1357.  First, there is now a concrete vehicular passageway (“the Road”) on the west side adjoining the four village houses.  Second, there is a rectangular cavity inside the lot which looks like a pool but without water (“the Pool”). Third, there is a concrete wall running along the northern boundary of that lot (“the Wall”).

84.  It is clear that the Road, the Pool, and probably the Wall were built to serve the village houses on the adjoining lots.  These were fundamental and significant changes on Lot 1357 which were contradictory to any intention to restore the lot to its original state.  It is most extraordinary that, notwithstanding, first, his position in the Village; second, his claim that he intended as the head of the Village and the chairman of the Committee to restore the lands to their original states, and that various acts were done for such purpose; and third, the serious allegations made against him in these proceedings, Hau said in court that he did not know who built those structures and he had not even tried to find out the answer.

85.  The fact that a road (ie the Road) had been built on Lot 1357 is significant.  As mentioned, the government required a fire passageway for the village houses nearby.  The Road apparently met such requirement.  Hau stressed that there was an alternative road to gain access to the four houses.  But one is not concerned with practical necessity.  Further, one may ask, if the Road was not built to meet the condition imposed by the government, why was it necessary to build it at all when there was already another road as Hau said?  I cannot believe that this is a mere coincidence. 

86.  One must remember that Hau had interest in the development of the village houses nearby.  I find that his apparent ignorance about the Road, the Pool and the Wall is an attempt to conceal his involvement in the erection of those structures.

D9. Liability of Hau

87.  Mr Chan submitted that there is no evidence that Hau had actually dumped any waste on the Subject Lots.  This is true, but is beside the point.  He pointed that Man had already admitted liability, but it does not follow that Hau cannot be held liable at the same time.  He further submitted that Lau’s case against Hau is wholly circumstantial and speculative.  I do not agree. 

88.  The standard of proof is on a balance of probabilities.  In view of the totality of the evidence analysed above, there is sufficient evidence that, since early July 2009, Hau had participated and been involved in various acts done on the Subject Lots which constituted trespass.  The evidence supports an inference on a balance of probabilities that Hau and Man, together with their associates, took part in a scheme since early July 2009 to evict Lau from the Subject Lots.  And one of the reasons, which might not be the only reason, is that part of the Subject Lots was needed to build a road, and other ancillary structures, to facilitate the development of village houses in the adjoining lots in which Hau had interest.

89.  There is force in Mr Yeung’s submission that Hau was the principal and Man was his assistant.  However, there is insufficient evidence for me to make any specific finding on Hau’s precise role in the scheme, and his relationship with Man.  Nonetheless, the findings that I have made against Hau are sufficient to render Hau liable.

E. REMEDIES

E1. Damages

E1a. Normal damages

90.  I use the term “normal damages” to distinguish them from aggravated damages and exemplary damages.

91.  Lau’s main claim is for a sum of $513,000 as the value of plants and properties in the Subject Lots which had been destroyed as particularized in Schedule 1 to the Amended Statement of Claim.  They included various fixtures and equipment, and different types of fruit trees.  Man in his witness statement estimated that their total value was only about $6,870.  In their written closing submissions, Mr Yeung reduced the amount claimed to $441,800 whereas Mr Chan maintained that only nominal damages should be awarded in this respect.

92.  Lau’s claim is based on what she stated in her police statement dated 28 July 2009.  She has also prepared a coloured diagram to illustrate the location of the properties and the plants.  She was cross‑examined in detail in this respect.  I agree with Mr Yeung that Lau had farmed on the Subject Lots for over 40 years, and must be familiar with the objects and plants in them.  It is unrealistic to expect that she could recall precisely the location and the quantity of various properties and plants.  Man in his statement purported to set out his own calculations to explain why there could not be as many fruit trees as Lau said.  Man was not familiar with the Subject Lots; and he did not have the expertise to give opinion evidence in this respect.  In cross‑examination, after being referred to the photos, he conceded that he was mistaken in saying that certain types of fruit tree did not exist on the Subject Lots.  I have no hesitation in rejecting Man’s evidence on this issue in entirety.  I accept that the estimates given by Lau on the location and quantity of various properties and plants are, generally speaking, reliable.

93.  The real difficulty in Lau’s claim is about the value, in particular, the unit value, that she gave to different properties and fruit trees; for example, she said that each lychee tree was worth $5,000 and each banana tree was worth $500.  Further, she gave simple round figures for various objects: such as $3,000 for agricultural apparatus (including water pipes and pumps); and $20,000 for an irrigation water storage pool.  She gave evidence on the price at which different types of fruits and vegetables could be sold. However, there is no explanation how the profits that could be derived are related to the estimated value of the trees in question.  As to various fixtures and equipment, the value that she gave appears to be largely based on her recollection as to how much the raw materials for making such objects cost.  There is, however, no documentary proof.  Further, the cost of the fixtures and equipment, which were acquired and built at different times before July 2009, cannot be taken to be equivalent to their market value at the material time.

94.  It is correct that Lau gave the same figures in her police statement which was made in late July 2009.  But as Mr Chan correctly pointed out, it does not follow that they were reliable and credible.  Lau said in cross‑examination that the calculations shown in her police statement were in fact done by the police.  She had not explained further how and why the police did the calculations.  Even assuming that the police did the calculations with her and her sons’ assistance, there is still an absence of sufficient evidential basis to support the correctness of the value of various properties and plants.

95.  I am also alarmed that, Tai Lok, in his police statement dated 12 July 2009, said that the dumping had destroyed several ten fruit trees and some vegetables of the total value of about $50,000.  By then, a substantial part of the Subject Lots had already been destroyed.  In cross‑examination, he explained that it was just a very rough estimate at the material time.  However, I cannot ignore that the rough estimate given by him was significantly lower than Lau’s present claim (by more than 10 times).

96.  Both Mr Yeung and Mr Chan referred me to the relevant principles set out in McGregor on Damages (19^th edn, 2014), §§10‑001 to 10‑002.  Mr Chan stressed that, even if the fact of damage is shown but no evidence is given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of nominal damages.  Mr Yeung emphasized that, where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the nature of the damage is no reason for awarding no damages or merely nominal damages; absolute certainly is not required as to the precise amount of the loss; and the court must do the best it can.

97.  They are both correct; and I believe the principles may be stated in simple terms as follows.  While the court must do the best it can, there must be evidence to enable the court to assess damages.  The court cannot, so to speak, pluck a figure in the air.  Whether the evidence adduced is sufficient to discharge the burden of proof on the claimant must depend on the circumstances, such as the nature of the claim.  And in assessing the sufficiency of the evidence, the court should adopt a reasonable and realistic approach, and will not require perfection or the best evidence.

98.  Mr Chan submitted that Lau had not adduced any expert evidence to prove her loss.  I doubt what expert evidence could have been adduced on the value of the fruit trees or the fixtures and equipment in practice; and how, even assuming that an appropriate expert could be instructed, he could conduct a valuation exercise properly when all the objects and plants had been destroyed.  In principle, I do not agree that the absence of expert evidence is necessarily fatal to Lau’s claim.  The authors of McGregor on Damages at §10‑003 at 349 refer to the English Court of Appeal’s judgment in Zahihi v Janzemini [2009] EWCA Civ 851, which concerned the valuation of missing converted jewellery.  The Chancellor held at §36 that the essential point is that the evidence must be logically relevant to the issue. 

99.  Regrettably, the evidence given by Lau bears little or no logical connection with the values of the objects and the plants that she put on them. The figures she adopted appear to be me to be artificial and arbitrary. Mr Yeung submitted that the amounts claimed by Lau are very modest. First, in principle, irrespective of how modest they might appear, they must be supported by sufficient evidence.  Second, in practice, the total sum claimed by Lau is indeed quite substantial.

100.  In the circumstances, I am driven to the conclusion that Lau has failed to discharge her burden of proof in this respect; and hence, in principle, only nominal damages should be awarded for the destruction of the properties and plants.

101.  However, this is not the end of the matter.  It is clear that Lau and his sons genuinely believed, quite rightly, that the properties and plants must be of substantial value because Lau used and relied on them to earn money.  She grew different types of herbs, fruits and vegetables in the Subject Lots; and sold them at a profit.

102.  I believe one should turn to focus on the amount of profit that she used to make.  Indeed, one of the particulars of loss and damage pleaded in the Amended Statement of Claim is “loss of profit in sale of vegetables and fruits”.  Lau stated in her witness statement that she made a net sum of $15,000 a month.  How much she earned must be a matter within her personal knowledge; and she must be the best person to give evidence on this point.  Mr Chan submitted in his closing submissions that Lau’s evidence in this respect is incredible for various reasons.  However, Lau was not cross‑examined on this point at all.  Having said that, in the absence of any documentary proof, what she stated in her statement must be her estimate to the best of her knowledge and recollection.  In this respect, I note that she told the police in her statement dated 28 July 2009 that she made about $12,000 a month.  I take the view that the estimate that she gave to the police should be more reliable.  Because of the wrongful acts committed by Man and Hau, Lau had been deprived of the chance of making any profit from farming on the Subject Lots. I am satisfied that she should be entitled to compensation at the monthly rate of $12,000.  As mentioned, Lau said that she was forced to stop farming on or about 12 July 2009.  From 12 July 2009 up to today, say about 69 months, her loss of profits shall be $12,000 x 69 = $828,000.

103.  For the above reasons, I shall award $828,000 as normal damages.

E1b. Aggravated damages

104.  Lau claims aggravated damages in the sum of $400,000.  Man and Hau take the view that no aggravated damages should be awarded.

105.  Aggravated damages are compensatory in nature; they are awarded to compensate the victim for his suffering in his feelings, dignity and pride, for his mental discomfort and distress arising from the circumstances in which the wrong was committed (Allan v Ng & Co (a firm) [2012] 2 HKLRD 160 at 185, § 83, per Fok JA (as he then was); Wong Kwai Fun v Li Fung [1994] 1 HKC 549 at 581E, per Woo J (as he then was)).  Aggravated damages may be awarded for a trespass (Clerk, § 19‑71 at p 1381).  In Horsford v Bird [2006] UKPC 3 at § 14, the Privy Council held that:

“… It is well established that trespass to land accompanied by high-handed, insulting or oppressive conduct may warrant an award of aggravated damages. The award in such a case is to compensate the plaintiff for the distress and injury to his feelings caused by the conduct in question…”

106.  The trespass in this case, as analysed above, was accompanied by high‑handed and oppressive conduct.  Lau had been farming on the Subject Lots with her husband since the early 1960s.  Lau said that she was very sad upon seeing that the plants that she cultivated with her hard labour had been destroyed.  She took the view that the wrongdoers had completely ruined the fruits of her lifelong painstaking labour.  And after she had been ousted from the Subject Lots, her life has become monotonous as she can only stay at home. I am satisfied that the evidence supports an award of aggravated damages.

107.  On quantum, as a fall‑back position, Mr Chan submitted that an appropriate award should be around $50,000.  He relied on Fu Wan Sang and others v Fu Man Kwong, HCA 16108/1999 (31 March 2003, unreported), where DHCJ Lam (as he then was) awarded $50,000 to a plaintiff who was ousted from the use and occupation of properties as a result of the defendant’s trespass.  On the other hand, Mr Yeung, in support of the claim of $400,000, relied on Wong Kwai Fun (supra) and Shen Xing v Li Jun, HCA 1680/2013 (9 April 2014, unreported).

108.  I have considered all the precedents cited by counsel.  Each case must depend on its own facts.  In this case, I need to quantify the shock and mental stress experienced by an old lady, who had spent decades on farming on the Subject Lots, when she discovered that all her efforts had been destroyed in a high handed manner.  But, at the same time, there is no evidence that she has suffered any significant or diagnosable psychological or psychiatric problem as a result.  I take the view that a fair and reasonable award should be $200,000.

E1c. Exemplary damages

109.  Lau claims exemplary damages in the sum of $400,000.  Man and Hau deny that any exemplary damages should be awarded.

110.  Exemplary damages are fundamentally different from normal damages and aggravated damages in that they are punitive, not compensatory.  The general objectives of exemplary damages may be stated as being punishment, deterrence and denunciation.  They are a remedy of last resort.  These general principles were set out in Allan (supra) at pp 178‑179, §§52‑56, per Kwan JA; and p 196, §§85‑87, per Fok JA.

111.  Further, exemplary damages will only be awarded in specific categories of cases.  In Wong Kwai Fun, Woo J cited and applied the following well‑known judgment by Lord Devlin in Rookes v Barnard [1964] AC 1129, 1126‑1227:

“ Cases in the second category are those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff… Where a defendant, with a cynical disregard for a plaintiff’s rights, has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is to gain at the expense of the plaintiff some object – perhaps some property which he covets – which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach the wrongdoer that tort does not pay.”

112.  Mr Chan relied on Clerk, §28‑140 at 2095‑2096:

“… On the other hand, a broad interpretation of Lord Devlin’s words should be applied: they are not restricted to money-making in the strict sense and the word ‘calculated’ does not imply that the defendant must have indulged in careful mathematical computation. ‘What is necessary is that the tortuous act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chance of economic, or perhaps physical, penalty’.”

113.  Mr Chan submitted that there is no evidence of any guilty knowledge on the part of either Man or Hau.  Man believed that he was a rightful tenant; he was willing to compensate Lau; the dumping was accidental and that he only planned to sub‑let Lot 1357 at a modest rent. On the other hand, there is no evidence that Hau had any interest in the Subject Lots, or that the building of a road across Lot 1357 would bring him any significant profits.

114.  First, in principle, I believe the principle is simply that it must be shown by evidence that the defendant knows and believes that the benefit that he is likely to obtain by committing the tort would outweigh the adverse consequences that he may face if the claimant pursues against him for such wrongdoing.  To put it another way, to commit the tort is a risk worth taking.

115.  Second, Mr Chan’s submissions are unsustainable in view of my findings of fact above.  I take the view that Man and Hau participated in a scheme to evict Lau from the Subject Lots.  The objective, or one of them, was to enable a road to be constructed on them, which would serve the village houses to be built on lands which Hau had interests.  It is correct that there is no evidence on how much they had actually made out of or as a result of their wrongful acts.  However, the sale price of the villages houses suggest that significant amount of money was involved.  Common sense supports that Man and Lau knew and believed that the development of the village houses was a lucrative project which would yield substantial profits.  Otherwise, they would not have embarked upon the project at all.  On the other hand, they knew from the unsuccessful negotiations that Lau would not agree to let them use the Subject Lots or vacate the Subject Lots at a sum which they were prepared to pay.  This is a case where, to paraphrase what Lord Devlin said, “the defendant is to gain at the expense of the plaintiff some object — perhaps some property which he covets — which either he could not obtain at all or not obtain except at a price greater than he wants to put down”.  I am satisfied that the present case falls within the second category described by Lord Devlin.

116.  The defendants behaved in an utmost high handed and outrageous manner. Although they knew that Lau, an old lady, had been farming on the Subject Lots for decades, they disregarded her rights and interests completely.  The wrongful acts were committed over a significant period of time.  It is most disturbing that they did not shy away or stop the wrongful acts even though various government authorities had intervened.  The overall impression is that they were contemptuous of the law, and adopted the attitude of “catch me if you can and if you dare”.  Their conduct has no place in Hong Kong where the rule of law is of paramount importance.  I have no doubt this is a case that they must be taught that tort does not pay.

117.  Having said that, despite the strong views that I hold against the defendants, I remind myself that exemplary damages are a last resort, and that I must consider whether the compensatory damages (including aggravated damages) that I have already awarded against them are adequate to punish them for their outrageous conduct, to mark the court’s disapproval of their conduct and to deter them from repeating.  It is only if the available remedies are inadequate to punish and deter the defendant for his conduct that exemplary damages should be considered (Allan, at 179, §55, per Kwan JA).

118.  I also take into account that Man was fined a total sum of $35,000 for committing the offences, whereas Hau had not been prosecuted at all.  I accept that the compensatory damages awarded against them are quite substantial.  However, I do not regard them to be adequate having regard to the whole circumstances.  I take the view that this case fits the situation as described by Lord Nicholls in A v Bottrill [2002] UKPC 44, §20, which was cited by Kwan JA in Allan at 178‑179, §52:

“…Exceptionally, a defendant’s conduct in committing a civil wrong is so outrageous that an order for payment of compensation is not an adequate response. Something more is needed from the court, to demonstrate that such conduct is altogether unacceptable to society. Then the wrongdoer may be ordered to make a further payment, by way of condemnation and punishment.”

119.  I turn to quantum.  Awards of exemplary damages are governed by a principle of moderation and restraint; they are analogous to a criminal penalty so principles require that an award of exemplary damages should never exceed the minimum sum necessary to meet the purpose underlying such damages, that of punishing the defendant, showing that tort does not pay and deterring others, see Allan at §56.  I have also considered the “Table of Hong Kong Cases on Exemplary Damages” annexed as an appendix to that judgment at pp 191‑194 and the award made in that case.  I take into account that substantial compensation damages have been awarded, there is no evidence on the amount of profits that the defendants had actually derived from the wrongful acts, and the penalty imposed on Man in the criminal case.  In my view, $100,000 is a modest sum that should be awarded as exemplary damages against Man and Hau.

E2. Injunctions or damages in lieu of injunctions

120.  Lau seeks a mandatory injunction requiring the defendants to restore the Subject Lots to their previous state before the wrongful acts; a prohibitory injunction to restrain them from committing further trespass; and also an order for possession of the Subject Lots.  The focus is on the application for mandatory injunction.

121.  Mr Yeung stressed that damages would not be an adequate remedy.  He submitted that damages cannot compensate Lau for the permanent loss of the use of the Subject Lots as farmland.  He also pointed out that Lau lacks the capability and resources to carry out any restoration work.

122.  Mr Chan submitted that the costs of restoring the Subject Lots to their previous state would be disproportionate if not impossible given the present state of the Subject Lots.  However, the defendants have not adduced any evidence on the costs of restoration.  Further, Mr Yeung referred to what Lord Upjohn said in Morris v Redland Bricks Ltd [1970] AC 652 at 666B‑C:

“…where the defendant has acted without regard to his neighbour’s rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff.”

123.  My real concern is not so much about the costs of restoration; my concern is what precisely I may and should order the defendants to do, and whether it is indeed possible to restore the Subject Lots to their previous condition so that they will be fit for agricultural purpose again.  The general purpose of any remedy in tort is to, insofar as possible, restore the plaintiff to the position as if the tort had not been committed. 

124.  It is of critical importance to define the terms of a mandatory injunction clearly.  As Lord Upjohn held in Morris (supra) at 666G‑667C:

“If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.

This has been well settled for a long time… There may be cases where, to revert to the simple illustration I gave earlier, the defendant can be ordered ‘to restore the right of way to its former condition.’ This is so simple as to require no further elucidation in the court order. But in anything more complicated the court must in fairness to the defendant tell him what he has to do, though it may well be by reference to plans prepared by some surveyor… The principle is summed up by Maugham L.J. in Fishenden v Higgs & Hill Ltd (1953) 153 L.T. 128, 142:

‘I should like to observe, in the first place, that I think a mandatory injunction, except in very exceptional circumstances, ought to be granted in such terms that the person against whom it is granted ought to know exactly what he has to do.’”

125.  Upon my request in view of such concern, Mr Yeung submitted a draft order setting out the terms of the proposed mandatory injunction as follows:

“The Defendants and each of them do, for the purpose of taking steps as listed below to satisfy the Director of Planning pursuant to a Notice issued by the Planning Department under section 23(3) of the Town Planning Ordinance dated 30 July 2009 in respect of the restoration work of the Subject Lots, a copy of which is attached in Appendix to this Order:-

(a) Within 60 days from the date hereof, dismantle and remove all unauthorized developments, erections, buildings and structures constructed on [the Subject Lots], including but not limited to [the Road, the Pool, etc];

(b) Within 60 days thereafter remove the fill material deposited on the Subject Lots for at least 1 metre in depth from the current ground level;

(c) Within 60 days thereafter, refill the Subject Lots with Topsoil which is compatible with agricultural use according to its heavy metal content up to the current level. The Topsoil shall comply with section 25.02(a) of the General Specification for Building 2012 edition of the Architectural Services Department; and

(d) Within 30 days thereafter, grass the entire Subject Lots and erect metal wired fence of 1.4 metre high on the Subject Lots to the extent shown on the diagram annexed hereto …with relevant markings thereon;

(e) Appoint a Registered Professional Engineer (‘RPE’), to supervise that all the restoration work stated above shall comply with the General Specification for Building Works 2012 edition of the Architectural Services Department of the Government of the Hong Kong Special Administrative Region.  All the restoration work shall be completed within 210 days from date of this Order, or any extension of time for completion where certified by the RPE for reasonable delay due to typhoon or inclement weather.  Upon completion of all the restoration work, the Defendant shall deliver a report of completion duly signed by the RPE for submission to the Director of the Planning and obtaining his approval.”

The draft order also includes a prohibitory injunction as follows:

“Upon completion of paragraph 1(a) to (e) hereinabove, the Defendants and each of them, whether by themselves, their servants or agents or otherwise be permanently restrained from entering or using the Subject Lots or from bulldozing, depositing or stockpiling soil or materials on the Subject Lots without the express permission of the Plaintiff or registered owners of the Subject Lots.”

126.  In effect, Mr Yeung is asking me to grant a mandatory injunction which would serve the same purpose as a statutory notice issued under section 23 of the TPO against the defendants.  However, as mentioned, section 23(1) empowers the authority to serve a notice on “a person who is responsible for the relevant matters”.  I take the view that it should be for the government authority to decide whether to exercise its statutory power to issue a statutory notice against any particular person.  There is nothing to stop Lau from asking or suggesting the Planning Department to issue a statutory notice against Man and Hau.  

127.  More importantly, the terms of the draft order raise a number of technical issues which I am unable to consider properly without the assistance of expert evidence.  Further, there is no evidence to show, assuming that steps are taken in accordance with the terms of the draft order, how likely the Subject Lots will indeed become fit again for agricultural purpose.  It must be noted that both the Subject Lots and their surroundings have undergone significant changes since July 2009.  I am not satisfied that there is sufficient evidence to support a workable plan which enjoys a real and substantial likelihood of rendering the Subject Lots fit again for agricultural purpose. 

128.  I am also concerned that to grant a mandatory injunction may affect third parties’ interests.  The Road inside Lot 1357 appears to serve the owners and occupiers of the village houses.  They are innocent third parties.  Mr Yeung submitted that the Road may no longer be required so there is no need to exclude the Road from the proposed mandatory injunction; but he accepted that, if necessary, it can be alienated from the proposed mandatory injunction.  I do not think this is a satisfactory solution, and that the matter is so simple.  Among other things, demolition of the Pool and the Wall may also adversely affect the interests of those persons.

129.  I also bear in mind that Lau is not the owner of the Subject Lots and her interest in them was limited; and further that, she is now quite old.

130.  For all these reasons, I decline to exercise my discretion to grant any mandatory injunction.  For the same reasons, I do not see fit to grant any prohibitory injunction or any possession order.

131.  Having said that, I take the view that I should award damages in lieu of injunction.  As Lau has been deprived of the use of the Subject Lots, she is entitled to claim future loss of profits at the monthly rate of $12,000.

132.  She is now 85 years old.  Mr Yeung relied on Table 13 of Hong Kong Population Projection 2012‑2041 published by the Census and Statistics Department and submitted that Lau’s expectation of life will be about 92.  He submitted that the multiplier should be assessed by reference to the approach in personal injury litigations approved in Chan Wai Ming v Leung Shing Wah [2014] 4 HKLRD 669.  Applying a discount rate of 1%, he proposed a multiplier of 5.82.  In contrast, Mr Chan submitted that a multiplier of 1 is appropriate.  I do not think one should simply consider Lau’s life expectancy.  It is clear that, in view of her age, it would have become more and more difficult for her to farm the Subject Lots in any event.  Further, in view of her limited interest in the Subject Lots, it is uncertain for how long she could have used them.  I take the view that a reasonable multiplier should be 2. Hence, she should be entitled to future loss of profits in the sum of $12,000 x 12 x 2 = $288,000.

F. CONCLUSION AND ORDERS

133.  For the above reasons, I hold that Lau succeeds in her claim against Man and Hau; and that she is entitled to damages summarized as follows:

Normal damages	$828,000
Aggravated damages	$200,000
Exemplary damages	$100,000
Damages in lieu of injunction	$288,000
	----------------
Total:	$1,416,000
	----------------

134.  As to interest:

(a) Since the normal damages represent Lau’s loss of earnings, as in personal injury litigations, interest should be awarded at half the judgment rate from the date when she ceased to be able to use the Subject Lots (ie 12 July 2009).

(b) Mr Yeung, in his closing submissions, did not ask for any interest on aggravated damages.  He also rightly accepted that interest before judgment should not be awarded on exemplary damages (Allan, at 184, §76, per Kwan JA; at 189, §103, per Fok JA).

(c) Damages in lieu of injunction represent Lau’s future loss of earnings.  They do not attract any pre‑judgment interest.

135.  Hence, I order that the defendants do pay the plaintiff:

(a) The sum of $828,000 as normal damages with interest at half the judgment rate from 12 July 2009 until the date of judgment, and after that at the judgment rate until payment.

(b) The sum of $200,000 as aggravated damages with interest from the date of judgment at the judgment rate until payment.

(c) The sum of $100,000 as exemplary damages with interest from the date of judgment at the judgment rate until payment.

(d) The sum of $288,000 as damages in lieu of injunction with interest from the date of judgment at the judgment rate until payment.

136.  I also make a costs order nisi that the defendants do pay the plaintiff the costs of this action (including all costs reserved) and that the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.  Any party who wishes to vary the costs order nisi shall file a written submission not exceeding 5 pages on A4 paper in no smaller than 14 points (with supporting documents, if any) within 7 days after this judgment is handed down; and the other party who opposes the application shall file a written submission not exceeding 5 pages on A4 paper in smaller than 14 points (with supporting documents, if any) within 7 days thereafter.  I shall then determine the application on paper.  If there is no application to vary the costs order nisi within seven days after this judgment is handed down, it shall become an order absolute.