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DCCJ 2148/2016
[2018] HKDC 1567
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 2148 OF 2016
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BETWEEN
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ELIAS NEIL DAVID |
1st Plaintiff |
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LOCKWOOD JANE ELIZABETH MARY |
2nd Plaintiff |
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and
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CHENG SUI CHU |
1st Defendant |
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WONG CHI HING |
2nd Defendant |
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PERSONS DOING SUCH ACTS OR |
3rd Defendant |
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THINGS, IN OR ON LOT NO.246 IN D.D.8, |
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CAUSING NUISANCE OR WHICH |
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MAY BE OR BECOME A NUISANCE OR |
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ANNOYANCE OR INCONVENIENCE |
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TO OWNERS, OCCUPIERS OR USERS OF |
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SECTION B OF LOT NO.245 IN D.D.8 |
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| Before: |
His Honour Judge Ko in Court |
| Dates of Hearing: |
26, 27, 30 & 31 July & 1 August 2018 |
| Date of Supplemental Submissions: |
15 August 2018 |
| Date of Judgment: |
19 December 2018 |
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JUDGMENT
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A. Background
1. This is a dispute between neighbours involving allegations of nuisance, trespass and conversion.[1]
2. The 2nd defendant (“D2”) is one of the owners of a piece of land in Tai Yeung Che, Tai Po, known as Lot No 246 in DD 8 (“the defendants’ land”). The 1st defendant (“D1”) is his wife. At all material times, D1 acted on behalf of D2 in relation to the defendants’ land.[2]
3. The defendants’ land is adjacent to four village houses as shown in the agreed sketch at Appendix A. The defendants’ land is delineated by markers A-B-O-P and the houses are numbered Houses 60 to 63 respectively on the sketch.
4. The plaintiffs (“P1” and “P2” respectively) were the owners and occupiers of House 61 at Section B of Lot No 245 in DD 8.
5. By a tenancy agreement dated 27 May 2010 (“Head Lease”), the defendants let a portion of the defendants’ land to the then owner of House 60, Susan Fitzgerald (“Susan”). The portion that was let to Susan abutted House 60 and House 61.
6. The Head Lease contained the following express terms:
Clause 1
The Landlord lets and the Tenant takes ALL THAT Garden DD8 Lot 246 (land) Tai Yeung Che (hereinafter called “the said premises”) standing at DD8 Lot 246 (ref land survey) in The Government of the Hong Kong Special Administrative Region and registered with the Land Office as Garden … for the term of 10 years commencing from 1-1-2011 at the monthly rent of Hong Kong Dollars 2,500 exclusive of rates...
…
Clause 22
Contract is a fixed contract for 5 years from 1-1-2011 – 1-1-2016.
Clause 23
From 1-1-2016 one month notice must be given in writing by either party to cancel the contract.
7. It is clear from the above and not disputed by the defendants at the trial that the Head Lease was for a term of 10 years commencing on 1 January 2011 at the monthly rent of $2,500. After 1 January 2016, either party could terminate the lease by giving one month’s written notice.
8. At the commencement of the Head Lease, the portion of land let to Susan was uncultivated and overgrown with vegetation. Susan cleared the vegetation and turned it into a garden. She erected wooden fences at the perimeter of the garden at her own expense (“Susan’s fences”). Susan’s fences are marked by felt-pen marker on Appendix A.
B. The plaintiffs’ case
9. By an undated sub-lease, Susan sub-let part of her garden to the plaintiffs from 31 May 2012 for the remainder of the term of the Head Lease at the monthly rent of $1,250 (“Sub-Lease”). The part that was sub-let to the plaintiffs abutted House 61 (“subject land”).
10. The plaintiffs erected a wooden fence to separate his garden from Susan’s. The fence erected by the plaintiffs (“plaintiffs’ fence”) is also marked by felt-tip marker on Appendix A.
11. On 1January 2016, D2 and his nephew suddenly came to the subject land to erect a barbed wire fence along the boundary with House 61 to block access from the house. They were turned away by the plaintiffs who asserted their right to use the subject land under the Sub-Lease.
12. Sometime between 1 and 15 January 2016, the defendants broke through Susan’s fences to scatter “hell money” (溪錢) and spread wooden planks, palm leaves, polystyrene boxes, urns and bananas on the subject land. The situation was captured by the photographs exhibited at pp 163-165 of the Bundle.
13. By a letter dated 19 January 2016, the plaintiffs complained to the defendants and demanded them to remove the “rubbish”. The plaintiffs reiterated their right to use the subject land under the Sub-Lease and reminded the defendants of clause 23 of the Head Lease.
14. There was no response from the defendants and the plaintiffs removed the “rubbish” on 23 January 2016. D1 then made a complaint to the police.
15. By a letter addressed to Susan dated 25 January 2016 (“Notice”), the defendants threatened legal proceedings if vacant possession of the defendants’ land was not delivered to them by 25 February 2016.
16. The plaintiffs acknowledged receipt of the Notice and, by a separate letter, offered to buy the subject land at $300,000.
17. By a letter dated 5 February 2016, the defendants rejected the offer and insisted that “[u]nless vacant possession of the captioned land is delivered before 25th February 2016, legal proceedings will be instituted against [Susan] and you…”.
18. By a letter dated 16 February 2016, the plaintiffs confirmed that they would handover the subject land by the deadline. They further wrote that:
“From your behaviour this morning, when you ranted at my friends and myself, I am guessing that you would like to retain the temporary fencing which Susan and I erected around the leased area. Unfortunately, for the land at the rear of House 61, we offered the dividing fencing to the new owners of House 60 who, we are told, will be leasing the land from you, but they declined to accept. We therefore have applied the wood to a new project and need to remove the fence.
For the other fencing at the back of House 60, Susan is prepared to leave it, with your permission, as otherwise we will need to restore the land to its original condition. Please let me know urgently if you are happy for us to leave fencing in place. Or else I will need to remove it to comply with the normal lease conditions.”
19. There was no response from the defendants and the plaintiffs removed the remaining fences. The plaintiffs only received the letter dated 19 February 2016 from the defendants’ solicitors after they had removed the fences.
20. The plaintiffs delivered vacant possession of the subject land to the defendants on 25 February 2016.
21. After they had resumed possession of the land, the defendants committed the following acts:
(a) On 29 February 2016, D1 ploughed up the land, demolished all the plants therein, installed a barbed wire fence on the border with House 61 and posted up signs and notices on the fence. The situation was captured by the photographs exhibited at pp 176-177 of the Bundle.
(b) On 2 March 2016, D1 dumped “rubbish” of old pots and broken wood on the land and placed a mirror door there to reflect sunlight and glare into House 61. The situation was captured by the photographs exhibited at pp 178-179 of the Bundle.
(c) On 5 March 2016, D1 hanged some dead fishes on the barbed wire fence and placed some on the land covered with palm leaves. The situation was captured by the photographs exhibited at pp 180-185 & 187-188 of the Bundle. The dead fishes were hung right in front of House 61 and created an unpleasant sight for the plaintiffs. The obnoxious and unpleasant smells emanated from the dead dishes also spread through the neighbourhood and to House 61 in particular.
(d) On 12 March 2016, D1 draped a large banner at the perimeter for the plaintiffs to see. The banner can be seen from the photograph at p 394 of the Bundle.
(e) Between 14 and 25 March 2016, D1 frequently came to add more “rubbish” on the land.
22. The plaintiffs made repeated complaints to the village head, the police and to the Government but to no avail. The village head advised the plaintiffs to call the police. The police responded that as the acts were done on private properties, they could not take any action. Staff of the Food, Environmental and Hygiene Department (“FEHD”) only came to lay down rat poison in the surrounding government land and pinned warning notices to that effect in the vicinity.
23. On 21 April 2016, D1 came to mix and spread “chemicals” on the subject land which gave off a sharp and noxious smell. The plaintiffs called the police who, in turn, summoned the fire brigade. Firemen came to investigate and located three buckets of excreta with pungent smell on the land.[3]
24. It is the plaintiffs’ case that the defendants’ acts constituted nuisance.[4] They commenced this action on 6 May 2016 and obtained an ex parte interlocutory injunction against the defendants.
25. On the return date of the ex parte injunction on 20 May 2016, the defendants undertook to the court (i) to remove all the dead fishes; (ii) not to deposit any substance that would emit obnoxious smell or cause nuisance on the subject land; and (iii) not to use mirrors or like substance to reflect light into House 61, and the plaintiffs did not proceed with their injunction application.
26. The plaintiffs later sold House 61 and the defendants were discharged from their undertakings.
27. At the trial, the plaintiffs sought the following relief:
(a) damages in the sum of $100,000 for the annoyance, discomfort and loss of amenity they had suffered; and
(b) aggravated damages in the sum of $100,000.
C. The defendants’ case
28. The defendants challenge the validity of the Sub-Lease and deny that the plaintiffs had the right to use the subject land.
29. The defendants claim that the plaintiffs should be liable...
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