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Lai King Ngok v Lai Kin Lim

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date27 July 2021
Neutral Citation[2021] HKDC 911
Year2021
Judgement NumberDCCJ181/2021
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ181/2021 LAI KING NGOK v. LAI KIN LIM

DCCJ 181/2021

[2021] HKDC 911

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 181 OF 2021

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BETWEEN
LAI KING NGOK (黎景岳) Plaintiff

and
LAI KIN LIM (黎建廉) Defendant

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Before: His Honour Judge MK Liu in Chambers (Open to public)

Date of Hearing: 27 July 2021

Date of Decision: 27 July 2021

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DECISION

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1. There are two summonses before me:-

(1) the plaintiff (“P”)’s summons dated 16/03/2021 (“P’s Summons”) for an order that:

(a) the order dated 19/02/2021 (“the Injunction Order”) do stand;

(b) alternatively, a new injunction with the same terms be granted against the Defendant (“D”); and

(2) D’s summons dated 24/03/2021 (“D’s Summons”) for setting aside the Injunction Order without any re-grant.

2. The terms of the Injunction Order are as follows:-

“1. Vacant possession of No. 103 Ping Kong, Sheung Shui, New Territories situates in Demarcation District 91 (“the Property”) be to [P];

2. [D] be prohibited from entering the Property without the permission from [P];

3. [D] do forthwith deliver to the [P] the keys to the Property;

4. [D] do forthwith allow [P] uninterrupted access to the Property;

5. [D] be restrained, whether by itself or its servants or agents or otherwise howsoever, from obstructing, interfering in any manner with or hinder the right of [P] in accessing the Property;

6. [D] be restrained, whether by itself or its servants or agents or otherwise howsoever, from interfering with in any manner or hindering the right of [P] to use, stay in, reside and reasonably enjoy the Property;

7. [D] be restrained, whether by itself or its servants or agents or otherwise howsoever, from damaging or destroying the Property or by any other means causing the Property to be uninhabitable;

8. [D] be restrained, whether by itself or its servants or agents or otherwise howsoever, from handling or disposing of any of the personal belongings of [P] at the Property;

9. [D] be restrained, whether by itself or its servants or agents or otherwise howsoever, from engaging in or threatening to engage in conduct capable of causing nuisance or annoyance to [P] as a tenant and/or resident of the Property; and

10. Costs of this application be to [P] summarily assessed at HK$80,000.00 including brief for counsel, i.e. item E of [P]’s statement of costs at HK$50,000.00, to be payable by [D] forthwith.”

3. The Injunction Order was made as a result of the application made by P by his summons dated 14/01/2021 (“the January Summons”). As per that summons, the injunction sought by P is an interlocutory injunction. It is specifically set out in the summons that the injunction would be in force “pending the full and final determination of this action”. However, the Injunction Order is not an interlocutory injunction but is a final injunction. That the Injunction Order is a final order is evidenced by the fact that the aforesaid words in quotation are missing in the order. Further, P has provided no cross-undertaking as to damages in support of the injunction. All these show that the Injunction Order is a final order.

4. I would first examine whether the Injunction Order was made in an ex parte hearing or in an inter partes hearing. If the Injunction Order was made in an ex parte hearing, I would have jurisdiction to set it aside under the Rules of the District Court, Order 32 rule 6. However, if the Injunction Order (being a final order) was made in an inter partes hearing, D may only seek an order to set it aside by lodging an appeal to the Court of Appeal.

5. As per D’s Summons, D’s setting aside application is made under Order 13 rule 9, Order 29 rules 1 and 7. In my view, none of these rules is applicable. The Injunction Order is not a default judgment entered in pursuance of Order 13, and hence Order 13 rule 9 would not be applicable. Further, the setting aside application cannot be made in pursuance of anything in Order 29 rules 1 and 7. However, notwithstanding all these, if the Injunction Order is an ex parte order, I would have the jurisdiction to set it aside under Order 32 rule 6. The fact that Order 32 rule 6 has not been mentioned in D’s Summons does not exclude D from recourse to the court’s jurisdiction under Order 32 rule 6.[1]

EX PARTE ORDER

6. Whether an order is an ex parte order or an inter partes order is decided by seeing whether the opposing party had been afforded a reasonable opportunity to argue it if it so wished.[2]

7. D did not attend the hearing on 19/02/2021. D’s case is that he has not been given notice of the January Summons and has not been afforded an opportunity to adduce evidence and to make submissions to oppose the January Summons. If these contentions are correct, that would mean that D has not been given an opportunity to be heard before the Injunction Order was made, and the Injunction Order would be an ex parte order.

8. The essential events are as follows:-

(1) On 14/01/2021, P issued the Writ of Summons (“the Writ”) herein.

(2) On 20/01/2021, P filed the January Summons.

(3) On 21/01/2021, P attempted to serve the Writ, the January Summons, and P’s affirmation in support of the summons on D personally at No. 103 Ping Kong, Sheung Shui, New Territories (“No. 103 Ping Kong”) but D was not there. On the same date, P’s solicitors, Johnnie Yam, Jacky Lee & Co (“JYJL”) wrote to the solicitors previously acting for D, David Y.Y. Fung (“DYYF”), to inquire whether they had instruction to accept service on the behalf of D.

(4) On 22/01/2021, Ms Au of DYYF informed Mr Leung of JYJL by phone that DYYF was unable to contact D.

(5) On 23/01/2021, P attempted to serve the Writ, the January Summons and the supporting affirmation on D by inserting the same through the letter box at No. 103 Ping Kong.

(6) On 17/02/2021, P attempted to serve the aforesaid documents again on D, together with a hearing bundle, by inserting the same through the letter box at No.103 Ping Kong.

(7) P obtained the Injunction Order in the hearing on 19/02/2021. D was absent in that hearing.

(8) On 04/03/2021, JYJL sent a letter enclosing a sealed copy of the Injunction Order to D. The letter was sent to No.103 Ping Kong by hand.

(9) On 09/03/2021, DYYF wrote to JYJL, in which DYYF said that D contacted them on 08/03/2021 and informed them the following:

(a) D left Hong Kong and went to Mainland China on or about 17/01/2021.

(b) D only returned to Hong Kong from the Mainland on or about 06/03/2021.

(c) D was not aware that DYYF had tried to contact him on or about 21 or 22/01/2021. He had no knowledge of the legal proceedings commenced by P against him.

9. D has produced his movement record issued by the Immigration Department (“the Movement Record”). The Movement Record shows that he left Hong Kong on 17/01/2021, and returned to Hong Kong on 06/03/2021. Based upon the Movement Record, I accept that D was not in Hong Kong during the aforesaid period.

10. In 2020, there was correspondence passing between the solicitors then acting for P and DYYF acting for D, in which the disputes concerning No.103 Ping Kong were discussed. Mr Ray Kwan, counsel for P, submits that it is highly likely that D was aware of the Writ as DYYF has at all material times been the legal representative of D as indicated in a letter issued by DYYF as early as 11/11/2020. Mr Kwan submits that since P had notified DYYF on 21/01/2021 of these proceedings, D ought to have been aware of these proceedings at about the same time.

11. With respect, I am of the view that these submissions lack evidential basis. In view of the Movement Record, it is an indisputable fact that D was not in Hong Kong from 17/01/2021 to 06/03/2021. DYYF have said that they had tried to contact D in late January but were unable to contact D. I have no reason to doubt what has been said by DYYF.

12. Based upon the evidence before the court, I accept that D did not have notice of these proceedings, including the January Summons, before he came back to Hong Kong on 06/03/2021. As a result, D had not been afforded an opportunity to adduce evidence and to make submissions to oppose P’s application in the hearing on 19/02/2021. That hearing is therefore an ex parte hearing, and the Injunction Order is an ex parte order. That being the case, I would have the jurisdiction to set aside the order under Order 32 rule 6. For the reasons set out in the below, I am of the view that the Injunction Order should be set aside.

NO FINAL INJUNCTION

13. I have said that the Injunction Order in fact is a final order against D. In my view, no final judgment should be made against D in a summary way, for there are triable issues in this case.

14. P is now over 90 years old. His wife has predeceased him. He has 6 children. The 4th child is a daughter. Save that, all the other children are sons. D is P’s 3rd son.

15. P’s case is as follows:-

(1) He was a carpenter and married to his wife in the 1950s. They have 6 children.

(2) In the 1960s, P’s family moved to No. 103 Ping Kong and began to reside therein. In the early 1980s, the Government requested him to enter into a tenancy agreement concerning No. 103 Ping Kong. Upon that request, P entered into a tenancy agreement with the Government (“the TA”). The term of the TA is 1 year from 1/10/1980 and would be renewed thereafter quarterly. The rent per quarter is HK$520.95.

(3) P has been paying the rentals under the TA and the maintenance and outgoing expenses of No. 103 Ping Kong throughout the years.

(4) No. 103 Ping Kong was divided into two parts, i.e. (a) the part in which P used to run his carpentry trade (“the Shop-front”); and (b) the part in which P’s family resided in (“the...

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