LEE KWAI YING v. PANG WING FAI AND OTHERS

DCCJ 1680/2022

[2022] HKDC 1246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1680 OF 2022

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DECISION

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1.  On 30 September 2022, I dismissed P’s application (“the Injunction Application”) for an interlocutory injunction against Ds (“the Injunction Decision”)[1]. On 6 October 2022, P took out a summons for leave to appeal against the Injunction Decision (“the October Summons”).  The only document annexed to the October Summons is a draft notice of appeal.  P has not filed any affidavit or affirmation in support of the October Summons.

2.  I have directed that the October Summons be determined on paper without an oral hearing.  The parties’ respective written submissions have been duly considered.  This decision should be read together with the Injunction Decision.  For ease of reference, the abbreviations used in the Injunction Decision are adopted herein.

A.  THE PRINCIPLES

3.  The principles concerning leave to appeal are trite.  Leave to appeal from this court to the Court of Appeal can only be granted if the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.^[2] Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable.^[3]

4.  The Injunction Decision is a discretionary decision made by me.  In order to overturn that discretionary decision, P has to overcome a very high hurdle.  The principles have been summarized by Kwan JA (as she then was) in Excel Courage Holdings Ltd v Wong Siu Lai[4], in which the learned judge said:

“55. An interlocutory injunction is a discretionary relief and the discretion whether to grant it is vested in the judge of the court below who heard the application. The appeal court must defer to the judge’s exercise of his discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently. The function of the appeal court is initially one of review. It will not disturb the judge’s exercise of discretion unless the judge had misdirected himself with regard to the principles or the evidence in accordance with which his discretion had to be exercised; or he had wrongly taken into account irrelevant matters or failed to take into account relevant matters; or his exercise of discretion was plainly wrong. It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to F; The Abidin Daver [1984] 1 AC 398 at 420A to C).”

5.  See also Wong Kar Gee Mimi v Severn Villa Ltd[5], in which Kwan JA (as she then was) said:

“31. … generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

6.  In respect of admission of new evidence in an appeal, the Ladd and Marshall^[6] conditions apply^[7]. Further evidence is admissible on an appeal only where such evidence:-

(1)  could not have been obtained at the hearing with reasonable diligence;

(2)  would or might, if believed, have a very important effect on the mind of the court; and

(3)  is of a sort which inherently is not improbable.

B.  NEW EVIDENCE

7.  In the draft notice of appeal, it is stated:

“To further support the appeal, P humbly asks this court to grant leave to her for:

(k) Ground 11: filing BD’s new report which states there was the vibration from 6J as witnessed by their external consultant in the late night of September 15, 2022;

(l) Ground 12: filing documented evidence of BD’s external consultant who opined that the vibration as witnessed for over an hour in the late night of September 15, 2022 was nuisance and it interfered with P’s sleep;

(m) Ground 13: filing evidence to prove further Ds’ false statements regarding their sleeping hours and their made-up alibi;

(n) Ground 14: filing evidence to prove further the building management’s finding on April 27, 2022 was not a thorough and believable one;

(o) Ground 15: filing evidence to prove the heavy work in Ds’ premise as found by the neighbour 4J.”

8.  P is intending to introduce the new evidence as set out under her Grounds 11 to 15 in the appeal.  However, P has not filed any affidavit or affirmation to explain why such evidence could not have been obtained at the hearing on 30 September 2022 with reasonable diligence.  P has also not produced the new evidence, and the contents of the new evidence are unseen by this court.

9.  P submits that:

(1)  Ground 11 – In the BD’s new report, it is stated that in an inspection done in the late night on 15 September 2022, vibration from 6J was observed.  The new report was not readily available for pick up until 5 October 2022.  P seeks leave to file this new report.

(2)  Ground 12 – BD’s external consultant had stayed in 5J from 10:41 pm to 11:45 pm on 15 September 2022.  The consultant confirmed that the vibration was a nuisance, which had the effect of affecting P’s sleep.  P is seeking leave to file the “documented evidence” made by the consultant. 

(3)  Ground 13 – P seeks leave to file evidence to refute the allegations made by Ds in their affirmations.

(4)  Ground 14 – P seeks leave to file evidence to prove that the inspection done by the Management Office is not thorough and not believable.

(5)  Ground 15 – Mr Kwok is living in Flat 4J of the Building.  On 29 August 2022, P and Mr Kwok were in the same minibus and had a conversation.  In that conversation, Mr Kwok said that he and his wife occasionally heard loud “bom” sound from the above.  P has recorded that conversation, and P now seeks leave to file the evidence of that conversation.

10.  As to the matters stated under Grounds 13 to 15, these matters have been in existence before the hearing on 30 September 2022. P cannot say that she would not be able to obtain such evidence with reasonable diligence before the hearing on 30 September 2022.  As to the matters mentioned in Grounds 11 and 12, according to P, the BD’s inspection was done on 15 September 2022.  There is no evidence showing that P had made reasonable efforts to try to obtain the report of this inspection and the documents prepared by the external consultant before the hearing on 30 September 2022, but could only obtain the report and the documents after the hearing.  In my view, condition (1) in Ladd v Marshall has not been satisfied.

11.  Further, as said in the above, P has also not produced the new evidence, and the exact contents of the new evidence are therefore unknown.  In these circumstances, obviously, conditions (2) and (3) in Ladd v Marshall have also not been satisfied.

12.  In my view, P is not entitled to adduce the new evidence in the appeal.

C.  LEAVE APPLICATION

13.  In the draft notice of appeal, apart from Grounds 11 to 15 mentioned in the above, P have put forward 10 grounds in support of her appeal.  By these 10 grounds, P is trying to argue that her appeal has a reasonable prospect of success and hence leave to appeal should be granted to her. P is not seeking leave under the “some other reason in the interests of justice” limb.

14.  I have dismissed the Injunction Application, for I am of the view that:

(1)  There is no serious question to be tried.[8]

(2)  Damages would be an adequate remedy to P.[9]

(3)  The terms of the injunction sought by P are vague and uncertain.[10]

15.  Unless P can demonstrate that she has a reasonable prospect of success in overturning each and every point as set out in [14] above in the appeal, leave to appeal must be refused.

C1.  Damages being adequate remedy

16.  Notwithstanding the numerous grounds put forward by P, P has failed to address the reason given by me in [45] to [47] of the Injunction Decision, i.e. the Injunction Application must be refused, for damages would be an adequate remedy to P according to P’s pleaded case.  That reason alone would be sufficient for dismissing the Injunction Application. While that reason stands, even if P could make any inroad into other parts of the Injunction Decision, P would not have a reasonable prospect of success in the appeal.

C2.  Terms of the injunction vague and uncertain

17.  In Ground 10, P has tried to argue that the reason given by me in [48] of the Injunction Decision is flawed.  In her written submissions dated 6 October 2022, P submits:

“4.19 P uses “unusual” instead of “unreasonable” is because unlike noise which indispensably exists in any household units, heavy work by hammering, knocking and dragging of heavy objects do not indispensably and do not usually exist. It all depends entirely on the circumstances. For example, it is usual if a household unit do the hammering, knocking and dragging of heavy objects to assemble a shoe cabinet for 3 hours. If it takes 7 hours from day time till midnight to assemble a shoe cabinet for a unit of 420 sq.ft., it could hardly be considered as “usual”. If it takes a few days or even more than half a year to assemble a show cabinet, it would definitely be considered as “unusual” according to a reasonable person’s perception and judgment. ……” (Emphasis added)

18.  With respect, as submitted by Ms Gigi Ho for Ds, the expression “[i]t all depends entirely on the circumstances” used in P’s submission has demonstrated that the scope of prohibition in the injunction order proposed by P is vague and uncertain.  An injunction is a serious matter, and any breach of the injunction would lead to drastic consequences.  Ds are entitled to know what exactly is prohibited by the injunction, and what is not within the scope of prohibition.  By saying that “it all depends entirely on the circumstances” would not give any comfort to Ds.

C3. No serious question to be tried

19.  Under Grounds 1 to 9, P has tried to argue that there is a serious question to be tried.  As far as I can understand, P’s arguments are as follows:

(1)  There are two kinds of nuisances alleged in this case, the first being the ceiling damage and the second being the serious interference with P’s enjoyment of land.  P claims that soundless vibration only refers to the serious interference with P’s enjoyment of land but not the ceiling damage.  P also submits that ceiling crack formations and quick deteriorations can only be caused by the unusual force exerted from the above floor.

(2)  P has provided proof that the police witnessed a loud thump from above 5J on 20 May 2022.

(3)  Regarding the investigations done by the Management Office, this court erred in not taking into account the “fact-twisting records” of the Management Office.

(4)  Regarding the BD’s reports, I have made “untrue references” and drawn “invalid conclusion” from those reports.  P says that this court erred in stating the following in the Injunction Decision:

(a)  At [28(2)]:

“In the two reports, the BD said that no abnormal or unusual noise or vibration emanating from 6J could be observed by the investigating officers, despite their visits outside 6J on those dates of inspection and inside 5J on 28 march 2022 and 21 April 2022. ……”

(b)  At [28(3)]:

“On 16 May 2022, the BD issued a letter to P and explained that the BD would not proceed with further investigation or action, as there was no structural damage caused by the cracks and noise was not within the jurisdiction of the BD.”

(c)  At [30]:

“The Management Office, the Police and the BD are independent third parties. They all have conducted their own investigations as a result of P’s complaints. The findings made by them do not lend any support to P’s case at all.”

P also says that I have not mentioned that Ds have refused to allow the BD’s officers to enter 6J to conduct investigations.

(5)  This court erred in not finding Mr Ma having the necessary expertise.  This court also erred in ignoring the test done by Mr Ma with a hammering rod and the findings of moisture measurements in Ma’s Report. Accordingly, I have erred in not attaching weight to Mr Ma’s evidence.

(6)  P is not relying upon Dr Li’s report to prove the nuisance in P’s case.  P is only relying upon the report to prove that she does not have hallucination.

(7)  I erred in not taking the evidence from P’s mother and P’s sisters, and the transcripts of the conversations between P and some people into account.

(8)  This court erred in understanding P’s case.  P submits that her case is a case of nuisance caused by noise maliciously created by Ds, and this court has failed to apply the NCO.

(9)  This court erred in not taking into consideration Ds’ false statements and their failure to deal with P’s allegations for weighing the balance of probabilities.

20.  With respect, I am unable to agree that P has demonstrated a reasonable prospect of success in the appeal by these arguments.

(1)  It is plain that damage to 5J’s ceiling is a major part of P’s case.  P is alleging that the cracks on 5J’s ceiling were caused by the soundless vibration emitted from 6J.  Damage to 5J’s ceiling would also be interference with P’s enjoyment of 5J.  As to the proposition that ceiling crack formations and quick deteriorations can only be caused by the unusual force exerted from the above floor, there is no reliable evidence in support of this proposition.

(2)  Evidence from the police has been summarized in [27] of the Injunction Decision.  There is no inaccuracy in the summary.

(3)  The investigations done by the Management Office have been summarized in [26] of the Injunction Decision.  P is of the view that the Management Office has twisted the facts.  However, the findings made by the Management Office are consistent with the conclusions reached by the police and by the BD.  There is no reasonable chance of success in criticizing that this court erred in accepting the Management Office’s findings.

(4)  Regarding the BD’s reports:

(a)  It is unfortunate that I have not expressed myself clear in [28(2)] of the Injunction Decision.  In the two reports complied by the BD, there is no positive statement stating that no abnormal or unusual noise or vibration emanating from 6J could be observed by the investigating officers.  What I should say is that in these reports, the BD mentioned no abnormal or unusual noise or vibration emanating from 6J. However, I am not persuaded that the unclear or inaccurate expression in [28(2)] would change the outcome of the Injunction Application.  After all, it is clear that there is no evidence from BD providing any support to P’s case.

(b)  Apart from the above, I am not persuaded that I have inaccurately summarized the BD’s evidence in the Injunction Decision.

(c)  I have indeed mentioned that the BD’s officers did not have an opportunity to enter 6J in [29] of the Injunction Decision, and I have taken this fact into account in my consideration.

(5)  I have analysed Mr Ma’s evidence in [31] of the Injunction Decision.  In my analysis, I have proceeded on the assumption that Mr Ma is indeed having the necessary expertise.  As submitted by Ms Ho, the tools shown in Appendix I to Ma’s Report, namely the “laser distance meter – brand ToolSmart TS50N Hammering Rod” and the “moisture meter with thermos-hygrometer”, are not used to test the alleged noise and/or vibration nuisance. Rather, as seen from §3.4 and §3.6 of Ma’s Report, the hammering rod was used to test the debonding areas on the ceiling surfaces of 5J, and the moisture meter was used to test the moisture level of the ceiling cracks. These tests are irrelevant to show and prove that the cracks on 5J’s ceiling were caused by the vibration emanated from 6J.  I am not persuaded that there is any error in my analysis.

(6)  Regarding Dr Li’s report, P is merely saying that she is using that report to prove that she does not have hallucination. Suffice for me to say that there is no finding in the Injunction Decision concerning P’s mental condition.

(7)  Regarding the evidence from P’s mother and from P’s sisters, as well as the transcripts of conversations between P and some people, I have indeed taken all these into account.[11]  I have concluded that all these would not be sufficient to enable P to have prospects of success (which in substance and reality exists) in her claim based upon the “soundless vibration” as alleged by P in her case, i.e. there has been soundless vibration emitting from 6J, cracking the 5J’s ceiling.

(8)  I have summarized P’s case as pleaded and as stated in her letter to the IO and the Management Office dated 11 June 2022 in [22] of the Injunction Decision.  P has failed to point out any error in that summary.  As stated in the Injunction Decision, P is in fact focusing on the vibration nuisance in her case.  I have also discussed the NCO in [39] to [41] of the Injunction Decision.  I am not persuaded that there is any error in that analysis.

(9)  P’s case is denied by Ds.  The burden of adducing evidence to show a serious question to be tried is on P.  Ds do not have the burden to adduce evidence to prove the negative.  For the sake of discussion, even assuming that there are some shortcomings in Ds’ evidence, it cannot be said that as a result of this, P would be regarded as having discharged the burden of proving a serious question to be tried.

C4.  Leave refused

21.  Having considered P’s submissions, in my view, P has not demonstrated that she has a reasonable prospect of success in the appeal.  Accordingly, leave to appeal must be refused.

D.  DISPOSITION

22.  I dismiss the October Summons.

23.  Costs should follow the event.  I order that costs of the October Summons be paid by P to Ds forthwith, with a certificate for counsel.  Ms Ho has asked for taxation.  In my view, costs of the October Summons could and should be summarily assessed.  I so order.  There be leave to Ds to file and serve a bill of costs for summary assessment within 7 days, and leave to P to file and serve a written reply to the said bill within 7 days thereafter.

DCCJ 1680/2022

[2022] HKDC 1043

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1680 OF 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 Re-Amended Statement of Claim.

17.  There is no dispute that P is the registered owner of 5J.  According to a land search of 5J dated 21 June 2022, P has been the registered owner of 5J since 23 March 2020.  The subject matter complained by P is the alleged noise and alleged vibration emanated from 6J to 5J.  Viewed in context, the nuisance relied upon by P must be private nuisance.

18.  Regarding private nuisance, the principles have been succinctly summarized in Elias Neil David and Anor v Cheng Sui Chu and Other[9]:

(1)  Private nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of his ownership or occupation of land or other right used or enjoyed in connection with land.

(2)  In an organized society like Hong Kong, the law recognises that everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours.  Thus, ordinary domestic use of premises could not constitute a nuisance even though interference with the enjoyment of neighbouring premises is caused.

(3)  The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.  There is no absolute standard to be applied and it is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance.

(4)  In deciding whether an interference could amount to an actionable nuisance, the court has to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property.

(5)  No precise or universal formula is possible, but a useful test is: What is reasonable according to ordinary usages of mankind living in a particular society.  In the words of Oliver J in Stone v Bolton[10]:

“Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact.”

19.  The test, namely what is reasonable according to ordinary usages of mankind living in a particular society, was held to be applicable in the context of interference nuisance disputes between neighbours in Hong Kong.  In assessing the question of nuisance in the context of Hong Kong, the court should take into account the particular habits of Hong Kong people, in particular later bedtimes.[11]

20.  In deciding whether the nuisance is substantiated, the court shall not take into account the subjective sense of the complainant.[12]

21.  In determining whether the impugned activity is a reasonable use of the defendant’s land, locality and the character of the neighbourhood must be taken into account.  As said in Sturges v Bridgman[13], “what would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey”.

22.  According to P, the nuisance is caused by noise (“the noise nuisance”) and vibration (“the vibration nuisance”) emanated from 6J.  P says that that the vibration emitting from 6J has cracked her ceilings.  Although both the noise nuisance and the vibration nuisance are mentioned in P’s case, P is focusing on the vibration nuisance.  P in fact says that the vibration emanated from 6J is often soundless vibration.

(1)  In the Re-Amended Statement of Claim, P pleads:

“13. Up till this date, the soundless vibrations still continue. [P]’s ceiling cracks are deteriorating and there are new cracks at [P]’s ceilings. Also, the vibrations, be it soundless or with little sounds substantially interferes with [P]’s enjoyment of her premise for already 6 months up till this date.

14. Such nuisance would continue and persist. Hence, pursuant to Order 29, rule 1 of the Rules of the District Court, cap.336H, [P] seeks an interim injunction to enjoin [Ds] from doing the disturbing heavy works.” (Emphasis added)

(2) In her letter to the Incorporated Owners of the Building (“the IO”) and the Management Office dated 11 June 2022, P said:

“本人所投訴的, 主要是從6J 單位發出的震盪，其次是拉重物、墜重物落地的震動，這些震盪帶有噪音，大部份聲浪不大，很多時是很微，甚至沒有聲，故本人常說 “無聲嘅震感””

23.  In my view, putting aside the alleged vibration complained by P, P in fact is not saying that there has been unbearable noise originated from 6J. The noise nuisance alleged by P cannot stand alone.  It would stand or fall together with the vibration nuisance alleged by P in her case. 

24.  In considering whether there is a serious question to be tried on nuisance, the following matters have to be borne in mind.

25.  Firstly, the Building is an old building in Hong Kong.  It is now 50 years old.  There are around 170 units within the Building. It is built very close to a highway, bus stations and other buildings.  Given all these, the residents in the Building would certainly experience some noise coming from the environment outside the Building and from different household activities in different units inside the Building during daytime and sometimes at night.

26.  Secondly, P has made various complaints to the Management Office of the Building.  The Management Office has conducted investigations and did not find any noise from 6J, nor any evidence showing that there may be some activities in 6J which would cause the vibration alleged by P.

(1)  Since 26 February 2022, P has made a number of complaints to the Management Office regarding the alleged noise nuisance and vibration nuisance.  On 21 March 2022, P wrote to the Management Office about her suspicion that there was a midget plant inside 6J.  On 12 May 2022, the Management Office replied that inspection has been made to 6J.  It was found that 6J is just an ordinary domestic unit without any factory facilities.  Photographs of the interior view of Flat 6J were taken by the Management Office on 27 April 2022. Those photographs show what the Management Office saw during the inspection.

(2)  On 12 July 2022, upon receiving P’s complaint, the Management Office sent staff to 5J but failed to notice any noise in the 10-minute observation.

(3)  According to the minutes of the 19^th meeting of the IO, no source of noise was identified by the police, and no other complaint have ever been received from other residents of the Building.

(4)  The Management Office also confirmed that no complaint has been received from Flat 6I or Flat 5I regarding the alleged nuisance as of 11 August 2022.

27.  Thirdly, P has made complaints to the Police, but the Police has not found any noise from 6J.

(1)  According to the letter issued by the Police dated 31 May 2022, no noise emitting from 6J has been observed by the police officers during their frequent, immediate and prolonged visits outside 6J on 20 March 2022 (10 minutes), 28 March 2022 (25 minutes), 10 April 2022 (30 minutes) and 27 April 2022 (30 minutes), which were all made within 10-30 minutes after receiving P’s report.  No prosecution has ever been taken against Ds.

(2)  P is of the view that at least some of the matters stated in the Police’s letter dated 31 May 2022 are not true.  She sought clarification from the Police.  However, in the reply letter dated 24 June 2022, the police said that “…… Police already included relevant information based on our records in the reply letter to you dated 31st May 2022. Police do not have any additional information to provide.”

(3)  P alleges that Ds had seen police’s arrival through the building CCTV channel on TV and knew that the police officers were coming, and hence Ds would cease to make any noise before the police officers arriving outside 6J.  This is denied by Ds.  In my view, P’s allegation is a mere speculation.  I would not attach any weight to this speculation.

28.  Fourthly, P has made complaints to the Building Department (“BD”).  BD has conducted investigation.  The conclusion reached by BD does not support P’s case.

(1)  Since 21 March 2022, P has also complained to the BD about the alleged vibration.  As a result, the BD conducted site visits and complied two reports based on its inspection on 23 March 2022, 28 March 2022, 12 April 2022 and 21 April 2022.

(2)  In the two reports, the BD said that no abnormal or unusual noise or vibration emanating from 6J could be observed by the investigating officers, despite their visits outside 6J on those dates of inspection and inside 5J on 28 March 2022 and 21 April 2022. Further, the BD found that the cracks on the ceilings of 5J was non-structural and that there was no structural danger to 5J.

(3)  On 16 May 2022, the BD issued a letter to P and explained that the BD would not proceed with further investigation or action, as there was no structural damage caused by the cracks and noise was not within the jurisdiction of the BD.

29.  P blamed Ds for being evasive by refusing the BD’s entry to 6J. However, Ds have allowed the Management Office to enter 6J to conduct investigations and to take photos of the interior of 6J.

30.  The Management Office, the Police and the BD are independent third parties.  They all have conducted their own investigations as a result of P’s complaints.  The findings made by them do not lend any support to P’s case at all.

31.  The most relevant evidence adduced by P is a site investigation report dated 7 May 2022 (“Ma’s Report”) and a letter dated 29 June 2022 (“Ma’s Letter”) from a Mr Jacky Ma Wai-kwong (“Mr Ma”).  P relies upon these documents as expert evidence in support of her case that the cracks on 5J’s ceilings were caused by vibration emitted from 6J.  It would not be necessary for me to set out the details of Ma’s Report and Ma’s Letter in this decision. Suffice for me to say that even assuming that Mr Ma is having the necessary expertise to give the opinion as stated in his report and his letter (for avoidance of doubt, as to whether Mr Ma indeed has such expertise, I make no finding on this issue), I would not attach any weight to Ma’s Report and Ma’s Letter for the following reasons:

(1)  In Ma’s Report and Ma’s Letter, Mr Ma only stated his conclusion that the cracks on 5J’s ceiling were caused by the vibration emanated from 6J.  No reason has been given explaining why he could reach such a conclusion.  Mr Ma did not say that he had conducted any test, and Mr Ma also did not say that he had considered what scientific theory.  In the absence of any reason, no weight can be attached to Mr Ma’s opinion.

(2)  Further, Mr Ma has not visited 6J and has not done any test inside 6J. That being the case, his opinion that the cracks on 5J’s ceiling were caused by the vibration emitted from 6J cannot be regarded as reliable.

32.  P also relies upon a psychiatric report by Dr Li Derek Seung Yau (“Dr Li”) dated 28 May 2022.  In this report, Dr Li stated that P has adjustment disorder and anxiety and depressive symptoms.  Dr Li gave a conclusion that P’s mental disorder is precipitated and caused by noise disturbances created by her neighour.  Understandably, P’s mental condition may well be a matter within the purview of Dr Li’s expertise. However, as to whether there has been any noise disturbance created by P’s neighbour, this a factual matter, in respect of which Dr Li cannot give any factual evidence.

33.  As said in the above, P is focusing on the vibration nuisance, and the noise nuisance in fact would stand or fall together with the vibration nuisance.  The vibration alleged by P is some “soundless vibration”.  P suggests that D should be using a rubber hammer to do the hammering with a tablet press tool on the floor of 6J.  She exhibited photos of rubber hammers and the google result of “9 Tips of Hammer Quietly & Not Disturb Your Neighbors” and said that soundless vibration could be created by “punching a cushion”.  With respect, all these are mere speculations without support of any evidence.

34.  P is in fact saying that Ds have maliciously[14] created some “soundless vibration” to annoy P.  This is a serious allegation.  I do not see any believable evidence in support of this allegation.

35.  P has also adduced evidence from herself, her mother and her sisters, as well as the transcripts of some conversations between her and some people. Suffice for me to say that all these would not be sufficient to enable P to have prospects of success (which in substance and reality exist) in her claim based upon the “soundless vibration” as alleged by P in her case.

36.  Having considered the evidence before the court, I am of the view that P’s case on nuisance does not have any substance and P has no prospect of success in reality.  There is no serious question to be tried on nuisance.

C1.2. DMC, Clause 10

37.  Clause 10(c) of the DMC requires each co-owner of the Building:

“[n]ot to use his part of the said building for any illegal or immoral purpose nor do or permit anything therein so thereupon which may create unnecessary noise or may be a nuisance or annoyance to or any create damage or inconvenience to the other occupiers of the said building.” (Emphasis added).

38.  For the reasons set out in [15] to [36] above, I am of the view that P has not shown a serious question to be tried concerning the alleged breach of Clause 10 of the DMC by Ds.

C1.3. NCO, s 4

39.  NCO, s.4 provides:

“(1) Any person who between the hours of 11 p.m. and 7 a.m., or at any time on a general holiday in any domestic premises or public place makes or causes to be made any noise which is a source of annoyance to any person commits an offence.

(2) Any person being the owner, tenant, occupier or person in charge of any domestic premises who between the hours of 11 p.m. and 7 a.m., or at any time on a general holiday knowingly permits or suffers noise which is a source of annoyance to any person to emanate from those domestic premises commits an offence.

……” (Emphasis added)

40.  As defined by s.2 of the NCO, unless the context otherwise requires, “annoyance” in the NCO means “annoyance that would not be tolerated by a reasonable person”.

41.  Even assuming that breach of NCO s.4 can constitute a cause of action in a civil case (there be no determination on this issue), P cannot show a serious question to be tried by relying upon this section.

(1)  As said in the above, the focus in P’s case is the alleged “soundless vibration” emanated from 6J.  Obviously, “soundless vibration” cannot be noise causing annoyance.

(2)  Further, there is no evidence showing that there has been noise from 6J that would not be tolerated by a reasonable person between 11 pm and 7 am, or at any time on a general holiday.

C1.4. BO, s.25

42.  BO, s.25 provides:

“(1) One month’s notice in the specified form shall be given to the Building Authority of any intended material change in the use of a building by the person intending to carry out or authorizing the carrying out of such change.

……

(3) The use of a building shall be deemed to be materially changed—

(a) where the carrying out of building works for the erection of a building intended for such use would have contravened the provisions of this Ordinance; or

(b) where the Building Authority could have refused to give approval to plans of such building works under section 16(1)(g).”

43.  There is no evidence showing that Ds are not using 6J as a domestic unit.  P cannot rely upon s.25 of the BO to show a serious question to be tried.

C1.5. No serious question to be tried

44.  Notwithstanding that a serious question to be tried is not a very steep hurdle, for the reasons above, I conclude that P has failed to show a serious question to be tried.

C2. Damages being an adequate remedy to P

45.  If I were wrong in concluding that there is no serious question to be tried, I would still refuse to grant an injunction to P, for I am of the view that the balance of convenience lies in favour of refusing the injunction.

46.  As stated in [7(6)] above, P is only claiming for monetary compensation in these proceedings.  Assuming that P succeeds to the full extent in this case, what P would obtain is monetary compensation.  Ds are the owners of 6J. The land search concerning 6J dated 27 July 2022 shows that 6J is not subject to any encumbrance.  With all these in mind, I am of the view that P would be adequately compensated by damages for any loss caused by the refusal of the interlocutory injunction, and Ds would certainly have the financial ability to pay the monetary compensation to P in the event that P succeeds at the trial. 

47.  For this reason, P’s application for an interlocutory injunction should be refused.

C3. Terms of the injunction sought by P

48.  A further reason for refusing P’s application is that the terms of the injunction sought by P are vague and uncertain.  The injunction would restrain Ds from doing “any unusual knocking, hammering and dragging of heavy objects” in 6J.  So according to the terms of the draft injunction order, usual knocking, hammering and dragging of heavy objects would not be caught by the injunction.  The injunction would only prohibit unusual knocking, hammering and dragging of heavy objects.  However, what is usual and what is unusual is undefined.  The scope of prohibition is vague and uncertain.  With respect, an injunction with the terms proposed by P would not be workable.

C4. Refusing P’s application

49.  For the reasons set out in the above, I must refuse P’s application and dismiss the Summons.

D.        DISPOSITION

50.  I dismiss the Summons.

51.  Costs should follow the event.  I order that costs of the Summons be to Ds in any event, with a certificate for counsel, to be taxed if not agreed.