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Chan Siu Cheung Henry And Others v Cheung Wing Keung Peter

Judgment Cited authorities 14 Cited in Precedent Map Related
Vincent
Judgment Date24 August 2017
Year2017
Judgement NumberDCCJ1500/2016
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ1500/2016 CHAN SIU CHEUNG HENRY AND OTHERS v. CHEUNG WING KEUNG PETER

DCCJ 1500/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1500 OF 2016

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BETWEEN
CHAN SIU CHEUNG HENRY, Plaintiffs
CHAN SHIU HUNG and CHAN SHIU LEUNG
and
CHEUNG WING KEUNG PETER Defendant

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Before: His Honour Judge MK Liu in Chambers (Open to public)
Date of Hearing: 17 August 2017
Date of Decision: 24 August 2017

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DECISION

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INTRODUCTION

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

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

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

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE INJUNCTION SUMMONS

The principles

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

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

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

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

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

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

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

(5) Two common guidelines are of course the consideration of the merits of the plaintiffs' claim and the balance of convenience. Here, it is of course easy to see at once how they are linked to the...

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