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Lee Kwai Ying v Pang Wing Fai And Others

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date30 September 2022
Neutral Citation[2022] HKDC 1043
Year2022
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ1680/2022
DCCJ1680/2022 LEE KWAI YING v. PANG WING FAI AND OTHERS

DCCJ 1680/2022

[2022] HKDC 1043

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1680 OF 2022

____________________

BETWEEN
LEE KWAI YING Plaintiff
and

1. PANG WING FAI

2. PANG YIN FONG

3. HO TAI TAI

 Defendants

____________________

Before: His Honour Judge MK Liu in Chambers (Open to Public)
Date of Hearing: 30 September 2022
Date of Decision: 30 September 2022

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DECISION

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1. This case is a dispute between co-owners of a building in Aberdeen, namely Aberdeen Harbour Mansion (“the Building”). The plaintiff (“P”) is the owner of Flat 5J of the Building (“5J”). The defendants (“Ds”) are the co-owners of the Flat 6J of the Building (“6J”). 6J is the unit above 5J. P claims that Ds have made noise and have caused vibration affecting 5J, and the noise and vibration constitute nuisance infringing P’s enjoyment of 5J.

2. By a summons dated 16 June 2022 (“the Summons”), P seeks an interlocutory injunction against Ds. The material terms of the injunction sought by P are as follows[1]:

“l. [Ds] and each of them, whether acting by themselves, their servants or agents, or otherwise howsoever until after final judgment of this action or further Order to be made herein, be restrained from any unusual knocking, hammering and dragging of heavy objects that would:

(a) cause new or further deteriorate the ceiling cracks at the Plaintiff’s premise, for which the plaintiff needs to present pictures taken in different days that are within 10 days’ timeframe to show a remarkable deterioration of the cracks while for new cracks, defendants are allowed to send their building expert to the plaintiff’s premise to check at their own cost; or

(b) cause disturbing vibrations to the Plaintiff’s premise persistently for over 10 minutes which would also be witnessed by police, neighbour, any other independent third party or building management and that the witness would agree that the vibration is caused by abnormal heavy work that are not for household needs, be it day time or night time, unless the defendants provide prior notice to the building management or a proper explanation thereafter to the witness that such disturbing activities are for ordinary household needs and accepted by the witness; or

(c) cause vibrations to the Plaintiff’s premise which would be detected by a vibration sensor placed in Room 2 coupled with a video recording of a surveillance camera for alerts triggered at more than 2 different times when there was no one at Plaintiff’s premise. Each time’s duration is 30 minutes. If vibration persists for 1 hour, that would be counted as 2 different times. Room 2 locates at the corner side of the building as well as at the corner side of unit J and hence, vibration alert triggered by other neighbours is very unlikely unless there is the renovation work in progress below 10th floor. The plaintiff would also check with Unit 4J if they perform any heavy work at the times when the vibration sensor sends the alerts. The defendants are allowed to check the sensor’s authenticity thereafter under police’ witness; or

(d) persistently cause heavy object sensations to the Plaintiff’s premise for over 6 times in one hour which are also witnessed by any other third party who would provide affirmation to support the nuisance's authenticity; or

(e) cause disturbing sounds of over 80dB, which is equivalent of “Diesel freight train running at high speed at 25m” (see Annex A) as recorded in Plaintiff’s premise for over 2 times during the normal sleeping hours from 11:30pm till 8am for which the plaintiff needs to provide video(s) that show the running decibel meter as evidence; or

(f) cause disturbing sounds of over 60dB, which is equivalent of “Conversation in quiet living room” (see Annex A) as recorded in Plaintiff’s premise for over 6 times in 2 hours during the normal sleeping hours from 11:30pm till 8am for which the Plaintiff needs to show video(s) that show the running decibel meter a normal s evidence.[2]”

3. Ds oppose the Summons.

4. The parties have filed affirmations in relation to the Summons pursuant to the directions given by the court. I am not prepared to set out all the details of the evidence filed by the parties. Suffice for me to say that all the evidence filed, as well as the submissions made by the parties, have been duly considered.

5. In these proceedings (including P’s application as per the Summons), P is acting in person, and D is represented by Ms Gigi Ho of counsel.

A. THE PARTIES’ RESPECTIVE CASES

6. These proceedings are at the very early stage. P has filed her Re-Amended Statement of Claim and Ds have filed their Defence.

7. P’s pleaded case is as follows:

(1) She has been the owner of 5J since mid-May 2020.

(2) Since 26 February 2022, there has been continuing vibration and noise emanating from 6J by way of unusual knocking, hammering and dragging of heavy objects every day and night, especially in midnight from 10:30 pm to 1:00 am, sometimes even till 2:00 am or after. The heavy work was so disturbing that made 5J’s condition similar to a unit that was right below a manufacturing plant.

(3) The main nuisance is the vibration. In [5] of the Re-Amended Statement of Claim, P pleaded that she made the complaint to Ds by a letter dated 24 April 2022, copied to the Management Office of the Building (“the Building”). In [6] of the Re-Amended Statement of Claim, P pleaded:

“In this letter, [P] specifically bolded and put a star in front of and after the word *vibrations* to make it clear that the main nuisance is vibrations.” (Emphasis in original)

(4) P claims that the ceiling of 5J was cracked by the soundless vibrations and “the vibrations, be it soundless or with little sounds, substantially interference with [P]’s enjoyment of her premise.”[3]

(5) P relies upon the following causes of action:

(a) Nuisance

(b) Breach of Clause 10 of the Deed of Mutual Covenant of the Building (“the DMC”)

(c) Breach of s.4 of the Noise Control Ordinance (“NCO”)

(d) Breach of s.25 of the Buildings Ordinance (“BO”)

(6) The only relief claimed by P is monetary compensation. See [19] of the Re-Amended Statement of Claim, which is as follows:

“19. [P]’s claim against [Ds] is for the sum of HK$295,700 (for nuisance up till this date) being the compensation for the loss of enjoyment of property, suffering and pain, ceiling repair, expert witness report and letter, and psychiatrist consultation and report. Claim amount will be increased if nuisance continues. ……”

8. Ds deny liability. Ds say that P is entitled to the relief as claimed or at all. Ds put P to strict proof of the alleged nuisance emanating from 6J to 5J. Ds say that their family have been residing in 6J for over 44 years since 1977 and have never received any complaints from any other persons about the alleged nuisance. All along, 6J has been used as an ordinary household unit and there has never been any heavy work inside 6J.

B. THE PRINCIPLES

9. The principles concerning interlocutory injunctions are trite. The court would first consider whether there is a serious question to be tried. If yes, the court would proceed to consider whether the balance of convenience lies in favour of granting the interlocutory injunction.[4]

10. A serious question to be tried is not a very steep hurdle. So long as there is a serious question, it matters not whether the court thinks that the plaintiff’s chances of success at trial are 90% or 20%. All that has to be seen is whether he has prospects of success which, in substance and reality, exist. Odds against success do not defeat him, unless those are so long that the plaintiff can have no expectation of success, but only a hope. If his prospects are so small that they lack substance and reality, then he fails, for he can point to no question to be tried which can be called “serious”, and no prospects of such success which can be called “real”. If the opposing party seeks to show there is no serious question to be tried, the threshold is high, as it would be necessary to demonstrate that the claim should be struck out.[5]

11. In considering the balance of convenience, the governing principle is that the court should first consider whether, if the plaintiff succeeds at the trial, he would be adequately compensated by damages for any loss caused by the refusal to grant an interlocutory injunction. If damages would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage.[6]

12. The terms of the injunction order must not be vague, uncertain or too oppressive to the defendant. As an example, if the noises referred to in the injunction order can inevitably encapsulate all decibel levels of sounds at any time or the defendant and his family’s lives and their right of enjoyment of the house would be unduly infringed, the court cannot and will be make such an order.[7]

13. With these principles in mind, I turn to analyse the issues in P’s application.

C. DISCUSSION

C1. Any serious question to be tried?

14. In analysing whether there is a serious question to be tried, I would consider the causes of action relied upon by P in turn.

C1.1. Nuisance

15. P has not made it clear that she is relying upon public nuisance or private nuisance in her pleading.

16. In order to succeed on a claim based upon public nuisance, a private individual must show that he or she has suffered a “particular, direct and substantial” injury above and beyond what is suffered by the rest of the public at large[8]. In my view, no case based upon public nuisance has been pleaded in the...

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