YEUNG TSUEN PUI also known as TERENCE YEUNG AND ANOTHER v. CHUNG CHUN MAN formerly trading as BAIYI AND OTHERS

DCCJ 1105/2022

[2023] HKDC 572

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1105 OF 2022

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BETWEEN
	YEUNG TSUEN PUI (also known as TERENCE YEUNG)	Plaintiffs
	and TERESITA YEUNG
and
	CHUNG CHUN MAN (鍾春敏) formerly trading as 1st Defendant BAIYI (百藝) (a firm)	2nd Defendant
	ALL PERSON(S) in ACTUCAL POSSESSION of
	THE STALL built in a PRIVATE LANE adjacent and
	attached to THE EXTERNAL WALL of the property
	known as “SHOP D ON GROUND FLOOR, 10
	TONG SHUI ROAD, HONG KONG”
	CHEUNG BING CHI (張炳枝) and	3rd Defendants
	LAI KWOK WAH (黎國華)
	PO CHOY ESTATES COMPANY LIMITED	4th Defendant
	(寶材置業有限公司)
	WEALTH POWER INVESTMENTS LIMITED	5th Defendant
	MA KIN KWAN PAULUS (馬健鈞)	6th Defendant
	HON YU TING (韓渝婷)	7th Defendant
	LAI CHEUNG SHING (黎張城) and	8th Defendants
	CHAN HOI TAI (陳海娣)
	CHAN SHIU TONG (陳紹棠) and	9th Defendants
	LI YONGYING MARY (李永英)
	HUI YUK LAN (許玉蘭)	10th Defendant
	TSANG KOON LAN (曾冠蘭)	11th Defendant
	CHONG MEI KING (莊美景) and	12th Defendants
	CHUANG KA YAM JACKY (莊嘉欽)
	KUNG PI HUANG (龔丕煌) and	13th Defendants
	KWOK LAM NA (郭琳娜)
	KWOK YIU SHUN (郭耀信) and LAM SIU (林笑)	14th Defendants
	LO LUN KEI (盧麟基) and YEUNG WAI (楊慧)	15th Defendants
	SUNSHINE CAPITAL LIMITED	16th Defendant
	(日首有限公司)
	CHEUNG CHU (張珠), CHEUNG HOI FAT (張開發)	17th Defendants
	and CHEUNG HOI WING (張開榮)
	YU SIU HUNG (余小紅)	18th Defendant

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Before:

His Honour Judge MK Liu in Chambers (Open to Public)

Date of Hearing:	3 May 2023
Date of Decision:	3 May 2023

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DECISION

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1.  This is the plaintiffs’(“Ps”) application for a default judgment against the 1^st and the 2^nd defendants (“D1” and “D2”) pursuant to Order 19 rule 7 of the Rules of the District Court.

2.  In an application for a default judgment pursuant to Order 19 rule 7 of the Rules of the District Court, the court would give judgment according to the case pleaded by the plaintiff alone, and no evidence is permitted.[1]

3.  Ps, together with the 3^rd to the 18^th defendants (“D3 to D18”), are the co-owners of a building known as No.10 Tong Shui Road and Nos. 2M and 2L Marble Road, Hong Kong (“the Building”).

4.  The gist of Ps’ case as pleaded in the Amended Statement of Claim is as follows:

“4.  The rights and obligations of all co-owners of the Building are governed by the provisions of the DMC and/or the Building Management Ordinance, Cap. 344 (“BMO”).

5.  The DMC expressly provides, inter alia, the following terms and covenants:-

…………

7.  Section 34I of the BMO expressly provides that:-

…………

8.  In breach of the provisions of the BMO[2] and the DMC, [D1 and D2] or any of them (a) had, without knowledge consent and/or approval of [Ps] and [D3 to D18] and/or their predecessors-in-title, on a date or dates unknown to [Ps] and [D3 to D18], wrongfully constructed and/or maintained an unauthorized structure of street stall (“Unauthorized Structures”) on a private access road (“Access Road”) adjacent and attached to the external wall (“External Wall”) of Shop D on Ground Floor of the Building; and (b) have, since then, been in wrongful use and occupation of the Access Road and the External Wall thereby trespassing onto the common parts of the Building and causing nuisance to all co-owners of the Building and other lawful users thereof, as well as depriving of their rights to peaceful use and enjoyment of the Access Road.

9.  The Access Road has, at all material times, been forming part of the common part(s) of the Building which is for identification purpose only in yellow in the Ground Floor Plan of the Building and is annexed hereto.”

5.  Ps are claiming for, inter alia, an order requiring D1 and D2 to demolish the Unauthorized Structures, and an order restraining D1 and D2 from occupying the Access Road.

6.  Ps’ causes of action against D1 and D2 as pleaded in the Amended Statement Claim are (a) breach of s.34I of the BMO, and (b) breach of the DMC.  In my view, Ps could not succeed by relying upon these causes of action.

(1)  S.34I of the BMO reads as follows:

“(1) No person may—

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) use or permit to be used the common parts of a building in such a manner as—

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2)  Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

(2) Clearly, the obligation in s.34I of the BMO is an obligation owed by a co-owner to the other co-owners of the building under the deed of mutual covenant governing that building.

(3) It is important to note that both D1 and D2 are not co-owners of the Building.

(4) While D1 and D2 are not co-owners of the Building, they are not bound by the DMC.  Ps cannot rely upon s.34I of the BMO and/or the DMC to found any cause of action against D1 and D2.

7.  According to Ps, D1 and D2 are merely squatters occupying part of the land belonging to the co-owners of the Building.  Ps may succeed if they are relying upon trespass as a cause of action against D1 and D2.  However, trespass has not been pleaded as a cause of action in the Amended Statement of Claim.  Mr Cheung for Ps has tried to suggest that trespass has been pleaded in [8] of the Amended Statement of Claim.  With respect, at the beginning of [8] of the Amended Statement of Claim, it is pleaded “[i]n breach of the provisions of the BMO and the DMC …”, and then everything in [8] is following this preamble.  Reading [8] of the Amended Statement of Claim fairly, the causes of action as pleaded in this paragraph in fact are breach of s.34I of the BMO and breach of DMC, no more and no less.  Trespass has not been pleaded as a cause of action against D1 and D2.

8.  At the end of the hearing, Mr Cheung sought leave to withdraw the application for a default judgment.  I granted leave to Ps to withdraw the application, with no order as to costs.

( MK Liu ) District Judge

Mr Victor C. F. Cheung, instructed by Stanley K.Y. Ng & Co., for the plaintiffs.

The 1st and 2nd defendants were not represented and did not appear.