DCCJ 4546/2019
[2024] HKDC 1706
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 4546 OF 2019
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BETWEEN
| | CHEUNG KWAN HO | Plaintiff |
and |
| | MAN CHEUNG LAM | 1st Defendant |
| | TANG KIN KWOK (鄧建國),
as managers of TANG SIU U TSO (鄧霄羽祖) | 2nd Defendant |
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| Before: | His Honour Judge Gary C. C. Lam |
| Date of Hearing: | 3 and 9 October 2024 |
| Date of Decision: | 10 October 2024 |
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JUDGMENT
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I. INTRODUCTION
1. This is a trial of an action commenced by the plaintiff against the 1st defendant for nuisance, wrongful interference with right of way and damage to personal property, all taking place in the Remaining Portion of Lot No 2643 in DD 210 (“Lot 2643RP”).
2. The 2nd defendant is the manager of Tang Siu U Tso (鄧霄羽祖) (the “Tso”). At the time of the commencement of the present action, Lot 2643RP was registered in the names of Tang Tong and Tang Kin Kwok (“Kwok”) in the capacity of the registered managers of the Tso, and thus both of them were named the 2nd defendant. After Tang Tong passed away in December 2020, Kwok became the sole registered manager, and amendment to the pleadings was made accordingly.
II. BACKGROUND NOT IN DISPUTE
3. The plaintiff and his family live in House No 41 (“House 41”), erected on Lot 2643RP.
4. Since 1920s, the plaintiff’s grandfather had occupied the part of Lot 2643RP (the “Land”) where he built House 41 in about 1979.
5. The plaintiff issued the Writ of Summons in the present proceedings on 22 August 2019.
6. The plaintiff and the 1st defendant are not new opponents in litigation concerning the Land. In HCMP No 3279 of 2013, in 2013, the 1st defendant and one Tsang Shu Wo, as tenants of a sub-lease granted to them, commenced proceedings against the plaintiff for possession of the Land. In that case:-
(1) The plaintiff (herein)’s defence was that although he was a bare or gratuitous licensee of the Land, the 1st defendant and Tsang Shu Wo had no standing to claim possession because the head-lease purportedly granted by the Tso, under which the sub-lease was granted to the two of them, was invalid as lacking the unanimous consent of the managers of the Tso, to wit, Kwok did not consent.
(2) The 1st defendant (herein) and Tsang Shu Wo’s response to this challenge to their standing was that the plaintiff (herein) did not have standing to mount this challenge because the plaintiff had no right to occupy the Land in the first place.
7. Thus, the issues in that case were:-
(1) Whether the head-lease was valid and in this respect, because the head-lease was purportedly granted by the Tso, whether the head-lease was unanimously consented to by the managers of the Tso; and
(2) What the legal status of the plaintiff’s occupancy was.
8. After trial from 7, 8 and 13 January 2020, in his judgment handed down on 5 March 2020 ([2020] HKCFI 293) (the “HCMP Judgment”), Anthony Chan J had the following to say:-
“36. I regret to say that Cheung [that is, the plaintiff’s father]’s evidence of the Licence granted by Kwok was contradicted by Kwok’s evidence…
37. I prefer Kwok’s evidence over that of Cheung on the alleged licence. The latter’s evidence is inherently improbable. It is quite unlikely for Kwok to have given permission for Cheung’s unborn children to stay for as long as they like.
38. Kwok’s evidence that the meeting made no request for Cheung to leave the Land is quite ambiguous. On the other hand, it may be said that given that Cheung’s family had been residing at House 41 since the 1920s, it was an implicit permission to continue to stay on the Land. If it is relevant to do so, I am prepared to make that finding.
39. However, the [plaintiff herein] was only born in 1987. I am unable to see how he can take advantage of the implicit permission given by Kwok in about 1979. The evidence establishes no licence granted in his favour by the Tso.
40…
41. I am unable to agree with [the 1st defendant herein and Tang Shu Wo] that the [plaintiff herein] does not have locus to challenge their title to the Land. The two authorities relied upon by them are plainly distinguishable. Although the [plaintiff herein] is, at the highest, a mere licensee, he must be entitled to see if the title of the person who seeks to evict him from his home is a valid one…” (emphasis added)
9. In respect of the plaintiff’s challenge to the standing of the 1st defendant in that case, his Lordship accepted the challenge on the ground that Kwok did not give consent to the head lease and thus the requisite requirement of unanimous consent of all managers was not met. It followed that the head lease was invalid, and the 1st defendant and Tang Shu Wo had no legal standing to commence the proceedings in that case Thus, his Lordship dismissed the proceedings. The 1st defendant and Tsang Shu Wo appealed in CACV 98/2020. The Court of Appeal dismissed the appeal on 9 November 2022 in [2023] HKCA 644.
10. Because of the findings in the HCMP Judgment, the 1st defendant confirmed at the Pre-trial Review on 1 August 2024 that he abandoned his counterclaim against the plaintiff.
III. PLAINTIFF’S CASE
11. In the present proceedings, the plaintiff’s case is that:-
(1) He and his family have occupied the Land under the Tso’s permission.
(2) Further, the Tso also permitted the plaintiff and his family to have free access to and egress from House 41 to Yuen Long Highway by walking and passing through two footpaths located within Lot 2643RP, namely:-
(a) A path on the north-eastern side of House 41, coloured green on the plan annexed to the statement of claim (the “Green Path”).
(b) A U-shaped path on the east side of House 41, coloured red on the plan annexed to the statement of claim (the “Red Path”).
I shall refer to them collectively as the “Footpaths”.
(3) On 24 March 2018, the 1st defendant erected an iron mesh fence (the “Iron Mesh Fence”) on the Green Path. Also, the 1st defendant attempted to damage the drainage pipes serving House 41 (the “Pipes”) but the plaintiff’s family stopped it.
(4) On 1 June 2018, the 1st defendant erected iron bars (the “Iron Bars”) on and near the Green Path.
(5) On 3 June 2018, the 1st defendant erected metal plates (the “Metal Plates”) on the Red Path.
(6) On 1 July 2018, the 1st defendant attempted to damage the Pipes again, and again the plaintiff’s family stopped it. However, the 1st defendant forcefully removed the notice board (“the Notice Board”) fixed on part of the Pipes, leaving one or two holes on that part of the Pipes.
(7) On 24 and 25 September 2018, during mid-night, the 1st defendant and his worker seriously damaged the Pipes by hammers and axes.
(8) On 28 January 2019, by letter of even date issued by his solicitors, the plaintiff demanded the 1st defendant to remove the Iron Mesh Fence, the Iron Bars and the Metal Plates, and to reinstate and/or repair the damaged Pipes.
(9) Further, because the 2nd defendant refused to join as a co-plaintiff and the plaintiff himself being a bare licensee has no right to possession of Lot 2643RP, the plaintiff joins the 2nd defendant as a defendant.
12. The plaintiff claims that the 1st defendant has committed nuisance in respect of the Land and the Footpaths, wrongfully interfered with the enjoyment of the Footpaths and damaged the Pipes being plaintiff’s private property. Thus, the plaintiff claims for the relief, among others, that:-
(1) An injunction restraining the 1st defendant from nuisance and the wrongful interference with the enjoyment of the Footpaths;
(2) An order that the 1st defendant do remove the Iron Mesh Fence, the Iron Bars and the Metal Plates;
(3) An injunction restraining the 1st defendant from further damaging the Pipes; and
(4) Costs of reinstatement and/or repair of the Pipes.
IV. 1ST DEFENDANT’S CASE
13. The 1st defendants’ case is that:-
(1) The plaintiff has no standing to commence the present action, as the plaintiff has no proprietary interests in the Land; nor is the plaintiff a licensee with exclusive possession.
(2) There is no evidence to prove that the 1st defendant caused the erection of the obstacles on the Footpaths.
(3) There is no evidence to prove that the Pipes are the plaintiff’s personal property.
(4) There is no evidence to prove that the 1st defendant caused the damage to the Pipes.
(5) There is no evidence to prove the amount of costs for repair and reinstatement of the damaged Pipes.
V. ISSUES
14. Therefore, the issues are, as adapted from the agreed statement of issues in dispute filed on 9 September 2024:-
(1) Whether the plaintiff has legal standing and entitlement to the relief.
(2) Whether the plaintiff is entitled to the rights of way of accessing House 41 through the Footpaths;
(3) Whether the 1st defendant erected or caused to be erected the Iron Mesh Fence, the Iron Bars and/or the Metal Plates;
(4) Whether the 1st defendant caused or caused to be done damage to the Pipes; and
(5) What the relief should be, if any.
VI. WHETHER THE PLAINTIFF HAS LOCUS STANDI AND ENTITLEMENT TO THE RELIEF.
A. Nuisance in respect of the Land and the Footpaths
15. In respect of the plaintiff’s standing for the cause of action on nuisance for the Land and the Footpaths, the plaintiff “must have a right to the land either as owner, tenant, reversioner or even licensee, if he has exclusive possession or occupation of it under such licence”: see Ng Hoi Sze and Yuen Sha Sha and another [1999] 3 HKLRD 890 at 895C per Rogers JA; also Artco Properties Ltd v Yau Chun Wing [2000] 1 HKLRD 697 at 701 per Chu J (now Chu VP); Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at 1205 per Anthony Chan J.
16. In the HCMP Judgment, effectively, Anthony Chan J already found at §§36-39 (quoted in §8 above) that no licence was granted to the plaintiff’s father to occupy the Land, and there was only an implicit permission given by Kwok alone for his father and his family to stay on the Land. Further, his Lordship found that the plaintiff could not take advantage of such implicit permission and there was no evidence to establish any licence granted in the plaintiff’s favour. In my view, the parties are bound by these findings by virtue of the doctrine of issue estoppel. By this doctrine, a party is precluded “from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him”: see Sam Woo Marine Works Ltd v The IO of Po Hang Building[2022] HKCA 733 at §25 per G Lam JA giving the judgment of the Court of Appeal. Although Tang Shu Wo is not a party to the present case, the doctrine applies with equal force here to the plaintiff and the 1st defendant.
17. Thus, it is clear that the plaintiff is not even a licensee, let alone a licensee with exclusive possession of the Land. His claim on nuisance in respect of the Land fails for lack of standing.
18. Mr Ernest Koo, counsel for the plaintiff, contends that although the HCMP Judgment binds the 1st defendant, it does not bind the plaintiff because the plaintiff now runs a different case of licence granted by the Tso or Kwok, namely:-
(1) In the HCMP Judgment, the plaintiff ran a case of an irrevocable licence granted to the plaintiff’s father by Kwok for the plaintiff to stay in the Land as long as he wished. Mr Koo, in his oral closing submissions, also mentioned that the plaintiff in that case ran a case that before he was born, the Tso granted or promised to grant him a licence already; and
(2) In the present proceedings, the plaintiff runs a case of a revocable, bare licence granted to him rather than his father after he was born.
19. Mr Koo’s contention must be rejected because (1) the new case now he runs is inconsistent with the previous case in that the licence alleged in this case was granted to him rather than his father; (2) there have been no explanation for such inconsistency; and (3) it is a typical abuse of process whereby a party tries to have a second bite of the cherry by presenting a different case and evidence on the same issue and such abuse of process is not permitted.
20. Further and in any event, it is also a typical abuse of process not permitted under Henderson v Henderson, by which a party ought generally not be permitted to raise in subsequent proceedings matters which could and should have been raised earlier. Mr Koo submits that the revocable, bare licence granted to the plaintiff would not constitute a defence in that case at all because of its revocability, and thus, issue estoppel in Henderson v Henderson sense does not prevent the plaintiff running the case as he does now before me. I disagree. In my view, this case of licence could and should still have been raised before Anthony Chan J, given that the issue there was the legal status of the plaintiff’s occupancy, rather than the plaintiff’s father’s occupancy, because even if the licence were revocable, the issue was whether the 1st defendant had the authority to revoke the licence and whether the Tso had revoked the licence. Not raising such a case before Anthony Chan J, his Lordship was perfectly entitled to make the finding that “[t]he evidence establishes no licence granted in [the plaintiff’s] favour by the Tso”: see §39 of the HCMP Judgment, and this finding is binding upon the plaintiff here.
21. Assuming that I were wrong on the doctrine of issue estoppel, I reach the same conclusion having considered the pleadings and evidence presented before me here. Here are the reasons.
22. First, the plaintiff pleads at §2(g) of the statement of claim that “[Kwok], being one of the managers of the Tso, has also given verbal confirmation to the plaintiff that the plaintiff and his family could continue occupying House 41 with exclusive possession of the Land”. However, despite that the burden is upon the plaintiff to prove that a valid licence was granted by the Tsoat the material times, namely, at the times of the wrongful conduct, there are no particulars at all as to when such verbal confirmation was given.
23. Second, consistently with the statement of claim, the plaintiff’s witness statement does not mention any particulars either. He alleges that the managers of the Tso permitted him and his family to live in House 41 and just repeats his pleading, without any particulars, that Kwok had all along permitted him and his family to live in House 41 and freely use the Footpaths. Like the statement of claim, not only are there no particulars; the time of such permission is not specified.
24. Further, there is an evidential lacuna in his witness statement, namely, the plaintiff did not mention any exclusive possession in such permission, which the plaintiff pleads in the statement of claim. Thus, there is no evidence in support of the “exclusive possession” part of the alleged licence.
25. Third, Kwok’s evidence does not fill up the plaintiff’s such evidential lacuna in respect of exclusive possession in the licence. Kwok’s witness statement, filed on 14 September 2023 for the plaintiff but not in his capacity as the 2nd defendant being the manager of the Tso, also does not mention any particulars. The substance of his witness statement is contained in the following two paragraphs only:-
“3. 本人確認本人於2021年10月29日發出之信件 (“該信件”) 之全部內容。現附上該信件之副本…
4. 此外，本人亦確認直至現在，該信件之全部內容亦仍然生效。鄧宵羽祖至今仍沒有反對原告人及其家人在新界元朗屏山欖口村41號屋 (“41號屋”) 居住並可透過該地段上的各通道自由進出41號屋與元朗公路附近範圍，亦不反對原告人在本訴訟的申索。”
26. The letter mentioned in paragraph 3 of Kwok’s witness statement is a letter dated 29 October 2021 addressed to the plaintiff’s solicitors, stating:-
“有關DCCJ [4]546/2019
1) 本人不反對原告人就上述案件，向法庭申請要求文暢林拆卸封塞行人通道的阻礙物、鐵枝及鐡皮等阻塞行人通道的一切物品.
2) 本人確認元朗欖口村的村民一向都使用案件陳述的通道。
3) 上述案件所涉及位於元朗欖口村丈量約份第120第2643RP (即敝祖地段上) 由欖口村41號屋通往元朗公路之道路，並同意張均浩先生在上述案件向文暢林申索，與上述通道有關所有命令及濟助。”
27. I note that:-
(1) Kwok says that the Tso does not object to the plaintiff’s stay. He does not say that the Tso or he as the sole manager of the Tso has granted the plaintiff any right to exclusive possession.
(2) Kwok simply describes a fact that villagers had been using the Footpaths. He does not say that the Tso or he as the sole manager of the Tso has granted any sort of right to the villagers or the plaintiff to use the Footpaths.
(3) Kwok agrees to the plaintiff’s claim in respect of the Footpaths. He does not say anything about the Land.
28. Ms Virginia Leung, counsel for the 1st defendant, chose not to cross-examine Kwok at all, and thus, Kwok’s evidence remains only his own witness statement of such contents.
29. Before I proceed to the fourth point, as an aside, I shall mention that I do not accept the 1st defendant’s contention that Kwok has been removed as the manager in a meeting of members of the Tso on 14 January 2017. The law looks only to the register kept by the Government as to who is or are the managers of a Tso: see HCMP Judgment at §51. I see no change in the register.
30. Fourth, the plaintiff’s case is that the licence granted to him is a bare licence revocable at will, in particular, the plaintiff and his family could stay there for free and would have to leave anytime the Tso asked them to. In terms of inherent probability, I find it inherently improbable that the managers of the Tso or Kwok would grant such licence to the plaintiff and his family to use the Land for no benefit, whether with exclusive possession or not, and whether revocable or not. It is even more inherently improbable that Kwok or the Tso would grant any free licence with a right to exclusive possession.
31. In the premises, having considered the pleadings and the evidence afresh before me, I find that the Tso has not granted the plaintiff any licence to stay in the Land and in any event, even assuming a licence has been granted, the plaintiff has no right to exclusive possession to the Land. At most, it was only as what Kwok says, that is, he or the Tso did not object to the plaintiff’s stay. As a matter of law, taken it to the highest to mean that it would be a bare licence and there is no evidence to indicate that the bare licence would confer on the plaintiff any exclusive possession of the Land.
32. So, the plaintiff’s claim on nuisance in respect of the Land fails for lack of standing.
33. The plaintiff’s case that the licence for him and his family use the Footpaths to access House 41 is part-and-parcel of his case that he was licensed to stay in House 41. Since this allegation is not established, the likelihood is that there has been no valid licence granted for the plaintiff to use the Footpaths, let alone any licence with exclusive possession to the Footpaths. This likelihood is reinforced by the plaintiff’s own evidence in cross-examination, which I accept, is that other villagers have been entitle dot use the Footpaths and no single person would be regarded as solely responsible for the maintenance of the Footpaths.
34. Mr Koo points out at pains that the plaintiff and his family has used the Footpaths for a long time, and thus some kind of licence must have been impliedly granted by the Tso or the managers of the Tso. I do not accept this. First, Mr Koo fairly confirms that he is not running a case of right of way or easement by long user. Second, that the Tso did not stop the plaintiff as well as other villagers from using the Footpaths does not alone mean consent by the Tso. For example, the Tso simply could not act due to internal dispute. So, I find that the plaintiff has no valid licence to use the Footpaths and in any event, even assuming that he had, he has never been granted any right to possession of the Footpaths.
35. Therefore, the plaintiff has no legal standing to claim on nuisance in respect of the Land and the Footpaths. Insofar as Mr Koo relies on Manchester Airport Plc v Dutton [2000] QB 133 for a contention that the Court should have the power to give effect to the licensee’ rights, I would dismiss such contention. This is because that case is a case of a licensee’s recovery of possession against a trespasser, but not a case that in any aspect altered the necessary requirements to establish nuisance.
36. In any event, even if the plaintiff does not rely upon nuisance but simply on the right of the alleged licence to use the Footpaths, upon my findings that there was no licence granted to the plaintiff to use the Footpaths, the plaintiff had no right in the first place for this Court to give effect to.
37. Before I turn to the next issue, for the sake of completeness, I should make it clear I do not accept Mr Koo’s proposition that to grant a bare licence, whether with exclusive possession or not, it is not necessary to have the unanimous consent of all the managers of a Tso. This proposition clearly goes against the well-established legal principle that “all trustees [and managers of a Tso are such trustees] in dealing with the leasehold interest and any rights arising out of it had to act jointly” (emphasis added): see So Kee Transportation Company Ltd v The Secretary for the Environment, Transport and Works, CACV 363/2005, 12 October 2006 at §6; also Tang Kam Wah and others v Tang Ming Yat and another, HCA 10141/1998, 26 November 2002 at §§68, 69 and 72 per Chu J. Although Mr Koo insisted upon this proposition as an exception to the well-established principle, upon my repeated enquiries, he had to confirm that there was no authority in support of such proposition or exception.
B. Wrongful interference with the Footpaths
38. In respect of the plaintiff’s standing to claim in relation to the Footpaths, besides nuisance, the plaintiff also relies on wrongful interference with his right of way to use the Footpaths.
39. In §§2-3 of his statement of claim, the plaintiff relies on (1) his and his family’s use and occupation of the Land under the Tso’s or Kwok’s permission; and (2) his and his family’s free access to and egress from House 41 to Yuen Long Highway through the Footpaths also under the Tso’s or Kwok’s permission, to say that he and his family are entitled to the right of way over the Footpaths “pursuant to the licence and/or permission given by the managers of the Tso”. On my findings that there has been no valid licence for the plaintiff to occupy the Land and to use the Footpaths, the plaintiff’s case simply falls away, and thus does not have any right to invoke this cause of action in the first place, as explained in §36 above and Manchester Airport Plc v Dutton, supra does not help the plaintiff.
C. Damage to the Pipes
40. In respect of the plaintiff’s standing to claim in relation to the Pipes, it is the plaintiff’s unchallenged evidence that the Pipes served House 41 exclusively. There is no suggestion by the 1st defendant as to who else would own them. Even though the Pipes ran through areas not owned by the plaintiff and outside the Land, it does not necessarily follow that the plaintiff did not own the Pipes. This would only mean a less likelihood that a pipe would run on others’ lands. However, all in all, in my view, it is inherently probable that the occupant of House 41 owns it, and I thus find that the plaintiff is indeed the owner of the Pipes. Therefore, he has the standing to claim compensation for the damage and loss caused to the Pipes.
VII. WHETHER THE PLAINTIFF IS ENTITLED TO THE RIGHT OF WAY OF ACCESSING HOUSE 41 THROUGH THE FOOTPATHS
41. As reasoned in Part VI.A above, there has been no valid licence granted to the plaintiff in respect of the Land and the Footpaths. As the plaintiff’s case is premised upon such licence, the plaintiff is not entitled to any right of way of accessing House 41 through the Footpaths.
VIII. WHETHER THE 1ST DEFENDANT ERECTED OR CAUSED TO BE ERECTED THE IRON MESH FENCE, THE IRON BARS AND/OR THE METAL PLATES
42. This question of who erected the obstacles on the Footpaths, in the light of my findings above, is academic. For the sake of completeness, I make the following findings.
43. While I can see the acrimony between the plaintiff and the 1st defendant and thus there may be a motive for the 1st defendant to erect such obstacles on the Footpaths, motive alone is insufficient for me to make a finding that the 1st defendant did or did cause to be erected such obstacles.
44. That said, in a letter dated 20 March 2018 issued by Messrs Jim & Co (on behalf of the 1st defendant) to the plaintiff and his father, the solicitors informed the plaintiff and his father that the 1st defendant and persons authorised by him would in the afternoon of 24 March 2018 carry out cleaning and hoarding. As a matter of fact, on 24 March 2018, some persons did erect the Iron Mesh Fence. The 1st defendant’s own evidence also confirms, by §21 of his witness statement, that he “instructed workers to clean and remove the rubbish, debris, dirty materials, wooden planks, fences and water pipes or drains from the Land” on that day.
45. In respect of the 1st defendant’s credibility, I find him incredible because in cross-examination:-
(1) The 1st defendant, for the first time, said that all these were done by people sent by the Tso.
(2) When taken to a photo showing that he wore workers’ gloves and gripped the Iron Mesh Fence on 24 March 2018, his answer was, for the first time, that he just touched the Iron Mesh Fence and that it was not illegal to wear workers’ gloves. This photo had been disclosed for a long time and there was no reason why the 1st defendant could not have given such explanation earlier.
(3) In respect of the Pipes, he also said for the first time that when he was cleaning the debris and rubbish, the Pipes had already been damaged to pieces and the pieces had already been laid on the ground.
(4) When confronted with the plaintiff’s solicitors letter of 28 January 2019 which accused the 1st defendant of, among others, putting the obstacles on the Footpaths, and asked why he did not respond at all, he said that he gave this letter to his solicitors and told them of (1) and (3) above. His answer was not, as Ms Leung submits for the 1st defendant, that he was exercising the right to silence because the matter was under the police’s investigation.
46. Any of the above explanations given for the first time, if true, should have been set out in his witness statement, given the significance of such evidence in his favour. However, none was in his witness statement,
47. Having considered the likelihood of the matter above and the 1st defendant’s credibility, I find that the 1st defendant did cause the erection of the Iron Mesh Fence.
48. In respect of the Iron Bars erected on 1 June 2018 and the Metal Plates erected on 3 June 2018, the plaintiff’s mother gave evidence that she saw the 1st defendant taking workers to erect the Iron Bars on 1 June 2018 and the Metal Plates on 3 June 2018. I find no reason to reject her evidence, especially in the light of the 1st defendant previous conduct of erecting obstacles just about 2 months before that and the 1st defendant’s credibility. So, I find that the 1st defendant was also the one who caused the erection of these obstacles.
49. Lastly, I accept the plaintiff’s and the plaintiff’s mother’s evidence that with these obstacles, the plaintiff and his family would have to take much longer (about 20-25 minutes longer) and more sloppy routes. I find that such interference with the right to use the Footpaths (if any) was substantial, if the plaintiff had the standing to claim on such cause of action.
IX. WHETHER THE 1ST DEFENDANT CAUSED OR CAUSED TO BE DONE DAMAGE TO THE PIPES
50. Similarly, while I can see the acrimony between the plaintiff and the 1st defendant and thus there may be a motive for the 1st defendant to damage the Pipes, motive alone is insufficient for me to make a finding that the 1st defendant caused or did cause to be done the damage to the Pipes. Such a finding would be a serious finding amounting to criminal damage, and thus the evidence to substantiate such a finding has to be cogent, though the standard of proof remains balance of probabilities.
51. As mentioned above, it is the 1st defendant’s own evidence that on 24 March 2018, he instructed workers to, among others, remove pipes and drains from the Land. This is consistent with the plaintiff’s case and evidence that there was attempt to damage the Pipes on that day.
52. In respect of the damage done to the Pipes on 1 July 2018 which the plaintiff alleges was caused by the removal of the Notice Board fixed to the Pipes, the 1st defendant himself admitted that he did remove the Notice Board and also said that there was indeed a screw fixing the Notice Board to the Pipes. Thus, my finding is that whether the removal was forceful or not, with or without any use of tools, the damage was done as a result of the removal.
53. However, for the damage actually done by way of hammers and axes as claimed by the plaintiff, the plaintiff’s evidence, from the plaintiff’s mother, is that during the mid-night on 24 and 25 September 2018 she saw two men damaging the Pipes with hammers and axes. She cannot identify who they were. The linkage between such damage on 24 and 25 September 2018 and the 1st defendant is that the 1st defendant had attempted to remove the Pipes back on 24 March 2018, almost 6 months before that and the damage done on 1 July 2018, almost 3 months before that. That the 1st defendant had erected obstacles on the Footpaths also points slightly towards him being responsible for damaging the Pipes. Further, the plaintiff’s letter of 28 January 2019 mentioned in §41(4) above also accused the 1st defendant of damaging the Pipes but the 1st defendant simply did not respond.
54. Having considered all the above as well as the 1st defendant’s credibility, I find that it was the 1st defendant who damaged or caused the damage to the Pipes.
X. WHAT SHOULD BE THE RELIEF?
55. In the circumstances, the plaintiff is not entitled to any relief based on the Land and the Footpaths, but only entitled to relief arising from the damage to the Pipes caused by the 1st defendant.
56. For damages, the plaintiff’s claim is that:-
(1) Costs for reinstating and/or repairing the Notice Board: HK$3,000;
(2) Costs for repairing the Pipes damaged as a result of the removal of the Notice Board: HK$5,000; and
(3) Costs for reinstating and/or repairing the Pipes, including construction of a new septic tank: HK$28,000.
57. There is no invoice or any documentary evidence for (1) and (2) above. When asked why, the plaintiff explained that it was his mother who was responsible for arranging and paying for the work, but he pointed out that his mother did mention these costs to the police. The plaintiff’s mother did not explain these costs in her witness statement and oral evidence, but did mention these costs in her statement made to the police on 1 July 2018, though obviously these costs were estimates only because the damage was done on that very same day. Further, there is no good reason not to ask the contractor to issue an invoice for costs. In the circumstances, I find that the costs are not as high as HK$8,000 in total, but that some costs were indeed incurred as a result.
58. Taking into account that it was a notice board only and that there was only one (the 1st defendant’s evidence) or two holes (the plaintiff’s evidence) caused to the Pipes, doing the best I can in assessing the quantum: see Man’s (Asia) Development Ltd v Fung Chi Kin[2018] HKCA 239 at §29.2 per Cheung, Yuen and Kwan JJA, I assess the quantum to be HK$4,500, which, as Mr Koo also fairly accepts at the closing submissions, could be a reasonable sum.
59. In respect of (3) above, namely, the costs for repairing the Pipes after the damage done in September 2018, the plaintiff produced an invoice dated 17 April 2019. There are three items on the invoice. The more controversial issue is whether the 1st defendant should be liable for the item in relation to the new septic tank. The plaintiff’s evidence is that because it happened that after the damage to the Pipes, a structure was built nearby on the land not occupied and not owned by the plaintiff, and this new structure blocked the way to the original connecting point of the septic tank. Hence, the plaintiff explains, it became impossible to use the old septic tank when the Pipes had to be replaced. The plaintiff further explains that as a result, a new septic tank with a connecting point in a direction not blocked by the new structure had to be built and thus new pipes had to go through some other routes to reach this new connecting point. I accept his evidence.
60. The 1st defendant does not plead that such damage was too remote or out of the expectation. In any event, construction of structures in one’s own land in the New Territories villages was not something too remote or out of reasonable expectation. But for the damage, the plaintiff would not have to replace the Pipes, and to replace the pipes, it was not too remote and not out of reasonable expectation that the plaintiff would have to replace the septic tank with a new one for connection to the new pipes in some other direction to get around the new structure. In the circumstances, I find that the 1st defendant is liable for the costs in respect of the new septic tank as well.
61. Ms Leung (for the 1st defendant) argues that there would be double repair for the damaged pipe one after the removal of the Notice Board in July 2018 and another one after the damage done in September 2018. In my view, the plaintiff was entitled to have the repair right after the damage in July 2018 because the Pipes were still in use. Of course, after the damage in September 2018, the plaintiff was also entitled to have the repair. Ms Leung seemed to labour under an impression that the repair to the damage caused in July 2018 was or should be awaited until the damage in September 2018. First, there was no plea of double repair in the 1st defendant’s defence and thus, the plaintiff was not alerted to explain that the repairs were separate; and second, in any event, such an impression Ms Leung seems to have laboured under does not make sense at all – the plaintiff would not know that there would be another damage in 2-3 months’ time and it would be unrealistic to expect him to wait and carry the repair in one go.
62. As such, I allow full amount of HK$28,000 in respect of (3).
63. In total, the 1st defendant is liable to pay the plaintiff HK$32,500.
64. The plaintiff also claims in the amended statement of claim an injunction restraining the 1st defendant from repeating or further damaging the Pipes. However, there is no evidence before me that the 1st defendant has in the past few years made any attempt to damage the Pipes again. Notably, the repair of the pipes was completed on 17 April 2019 according to the invoice mentioned in §59 above, and the plaintiff has not complained any damage to the new pipes at all, whether at the date of the issuance of the writ herein on 22 August 2019 or anytime thereafter. Nor is there any plea or evidence that the 1st defendant may in the near future damage the new pipes. In fact, in the agreed list of issues as well as the plaintiff’s opening and closing submissions, the only injunction mentioned was the injunction in relation to the Footpaths but not the Pipes or the new pipes at all. Mr Koo also fairly confirms that he is not pursuing this relief. In the circumstances, there will not be any injunction in respect of the Pipes.
XI. ORDER
65. In the circumstances, I make the following order:-
(1) There shall be retrospective leave for the 1st defendant to withdraw his counterclaim effective from 1 August 2024.
(2) The 1st defendant do pay the plaintiff damages of HK$32,500.
(3) There shall be interest on (2) above at half judgment rate applicable as at today from 17 April 2019 (the date of the invoice mentioned in §59 above) until today.
(4) There shall be interest on (2) and (3) above at judgment rate until payment of judgment.
(5) There shall be no order as to costs between the plaintiff and the 2nd defendant.
66. As regards the costs between the plaintiff and the 1st defendant, in respect of the claim and counterclaim over the Land and the Footpaths, taking a broad-brush approach, I think there should be no order as to costs because:-
(1) It must have been clear to the plaintiff by 5 March 2020 (being the date of handing down of the HCMP Judgment) that he had no licence in respect of the Land and therefore, it would be unreasonable since then for him still to pursue the cause of action of nuisance over the Land and the Footpaths and the interference with the right of way over the Footpaths, which hinged upon the existence of the licence of the Land. Further and in any event, even on the plaintiff’s own plea of the licence, the pleas was, as explained above, unparticularised and not substantiated by any evidence at all and thus, irrespective of the HCMP Judgment, it was unmeritorious.
(2) It must also have been clear to the 1st defendant by 9 November 2022 (being the date of the dismissal of the 1st defendant’s appeal in CACV 98/2020) that he should not pursue his counterclaim. It is unfortunate that even in his witness statement filed on 14 June 2023, he still alleged that he was entitled to the counterclaim.
67. In respect of the apportionment, adopting a broad-brush approach, I think 60% should be apportioned to the issue concerning the Land and the Footpaths.
68. As regards the remaining 40%, related to the Notice Board and the Pipes, costs should follow the event.
69. With respect to the scale of taxation, if not at the commencement of his claim, then by 5 March 2020 (being the date of handing down of the HCMP Judgment), it must have been clear to the plaintiff that he should not pursue the claim over the Land and the Footpaths, and that his only viable claim should be related to the Pipes. The real claim related to the Pipes has only been the claim for damages. Since the amount of the damages arising from the Pipes is within the jurisdiction of the Small Claims Tribunal, I would have ordered the costs since 5 March 2020 should be taxed on the Small Claims Tribunal scale: see Liu King Tong v Hospital Authority[2019] HKDC 376 at §§11-13, but for the 1st defendant’s pursuit of his counterclaim only to be abandoned at the PTR on 1 August 2024, meaning that the plaintiff’s claim would still have to stay in the District Court in any event.
70. Therefore, I make a costs order nisi that the 1st defendant do pay the plaintiff 40% costs of the action (including any costs reserved), to be taxed if not agreed, with certificate for counsel.
| | ( Gary C. C. Lam ) |
| | District Judge |
Mr Ernest C.M. Koo, instructed by Simon Wong & Co, assigned by the Director of Legal Aid, for the plaintiff
Miss Virginia Leung, instructed by Raymond Chan, Kenneth Yuen & Co., for the 1st defendant
The 2nd defendant, in person (absent)