GOLDRISE INVESTMENT LTD v. MAK WAI KWAN ANTONIO

DCCJ 3650/2025

[2026] HKDC 18

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3650 OF 2025

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BETWEEN

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JUDGMENT

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Introduction

1.  By summons filed on 28 October 2025 pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court (Cap.336H, sub leg.) (“RDC”), the Plaintiff seeks final judgment be entered against the Defendant in the following terms:-

(i) An Order that the Defendant do forthwith, either by himself, his agent(s) or servant(s) and/or any of them or otherwise, do remove or cause to be removed the items that he placed or caused or allowed to be placed in the passageway outside stalls 33B, 34, 20A, 35 and 19 and the loading bay of the market situated at the Ground Floor of Kwai Chung Shopping Centre, Kwai Chung Market (“the Trespassed Areas”) [Hatched Black Area in Annexure A annexed to this Order];

(ii) An Order be granted restraining the Defendant, either by himself, his agent(s) or servant(s), and/or any of them or otherwise from using, occupying or enjoying the Trespassed Areas except in the form of the Right of Way or right to use the Trespassed Areas that is common to visitors of the Market;

(iii) A declaration that the Defendant has no right whatsoever to use, occupy or enjoy the Trespassed Areas except in the form of the Right of Way or right to use the Trespassed Areas that is common to visitors of the Market;

(iv) A declaration that, the Defendant failing (i) or (ii) above, the Plaintiff is entitled to remove any items placed by the Defendant in the Trespassed Areas and to be reimbursed by the Defendant for the expenses so incurred;

(v) An Order that the Defendant be restrained, whether by his employees, or agents, howsoever from staying in occupation or using any part of Stall No. 34 and Stall No. 20A;

(vi) An Order that the Defendant do forthwith deliver vacant possession of Stall No. 34 and Stall No. 20A to the Plaintiff;

(vii) A declaration that, the Defendant failing (v) or (vi) above, the Plaintiff is entitled to remove any items placed by the Defendant in Stall No. 34 and Stall No. 20A and to be reimbursed by the Defendant for the expenses so incurred;

(viii) Mesne profits concerning Stall No. 34 and Stall No. 20A until delivery up of vacant possession of Stall No. 34 and Stall No. 20A, together with interest thereon;

(ix) Mesne profits concerning the Trespassed Areas until delivery up of vacant possession of the Trespassed Areas, together with interest thereon;

(x) Costs, including the costs of this application, to be taxed; and

(xi) Interlocutory judgment be entered for the Plaintiff against the Defendant in this action for damages for the Plaintiff’s loss and damage so pleaded in paragraphs 19 to 21 of the Statement of Claim to be assessed.

2.  Shortly before the hearing, by the 2^nd Affirmation of Leung Yiu Hang Wilkin, senior property officer, filed on 19 December 2025, the Plaintiff confirmed that on 30 November 2025, the Defendant had via his agent(s) or servant(s) surrendered possession of Stall No. 20A, and therefore the Plaintiff shall abandon its claim for injunction and possession against Stall No. 20A. Such stance was confirmed by Ms Sharon Ng, Counsel for the Plaintiff, at the hearing.

3.  The Defendant acted in person but was absent at the hearing. As Counsel’s submissions and the authorities are in English, this judgment is written in English. If in need, the Defendant may request oral interpretation of this judgment by a court interpreter.

Plaintiff’s Pleaded Case

4.  The Plaintiff was and is a tenant of the Ground Floor of Kwai Chung Shopping Centre, Kwai Chung Estate (“the Market”), and is also engaged in the business as operator of wet markets under the Housing Authority. The Plaintiff grants licences to licensees for their non-exclusive use of the various stalls of the Market. Areas outside the stalls including passageways are common areas available for public use.

5.  The Defendant is a Hong Kong resident.

6.  On 31 January 2024, the Plaintiff entered into a licence agreement with the Defendant for the use of Stall No. 34 (“the Licence Agreement”). Under the Licence Agreement, the Plaintiff as licensor granted the Defendant the licence to use Stall No. 34 of the Market at a monthly licence fee of HK$18,500 for the period between 27 February 2024 and 31 October 2026.

7.  The Plaintiff relies on Clauses 1, 3(i), 4, 25, 30, 31 and Part 4 (Special Issue) of, and Schedule 3 and Appendix 4 to the Licence Agreement. For the purpose of this application, salient parts of the said parts, translated into English, are:-

(i) Clause 1 provides that the Licensee understands clearly that the Licensor owns the final and absolute rights relating to the operation, management and policy of the Market.

(ii) Clause 3(i) provides that the Licensee shall pay the all-inclusive monthly licence fee on or before the 1^st day of a calendar month.

(iii) Clause 30(d) provides that the Licensee clearly understands and accepts that any breach of the other clauses of that agreement shall be regarded as repudiation of the agreement.

(iv) Clause 31(a) provides that should there be repudiation in the manner stated in Clause 30(d), the Licensor may issue a written notice of termination to the Licensee and recover possession of the stall within 3 days. The Licensor is entitled to, after the issue of a written notice of termination, prohibit the Licensee from entering the stall for any activity including but not limited to its operation of business.

(v) Clause 31(d) provides that should there be repudiation in the manner stated in Clause 30(d), the Licensor is entitled to claim all financial loss after the termination of licence of the stall.

(vi) Part 4 (Special Issue) provides that the Licensee shall abide by the Code of Practice at Appendix 4 thereto and shall post the same at a conspicuous place of the stall.

(vii) Schedule 3 provides that the Licensee shall ensure its stall and the surrounding areas to be clean and to remove all rubbish and to drain away all sewage during and after the operating hours of the Market. Moreover, the Licensee and/or its employees and/or its related persons shall not cause, or allow to cause, the stacking of any boxes, goods, sundry items or rubbish near, at the ceiling of or at the top of the stall and/or at the public area. Further, the Licensee shall be legally responsible for any loss and/or injury or death of any person or any loss of chattels caused by its breach of this Clause.

(viii) Appendix 4, i.e. the Code of Practice, essentially provides that the use of electric pallet trucks is prohibited inside the Market.

8.  The Code of Practice has been in circulation among and made known to all stall operators of the Market at all material times. By signing the written declaration attached to Appendix 4 of the Licence Agreement, the Defendant confirmed his agreement to abide by the said Code of Practice.

9.  The Defendant had paid to the Plaintiff a sum of HK$26,691.00 being the 2-month security deposit pursuant to the Licence Agreement, and HK$18,500.00 being the first month’s licence fee of Stall No. 34 for the period from 1 March 2024 to 31 March 2024.

10.  Separately, in or about late August, the Plaintiff entered into an oral periodic licence agreement with the Defendant, under which the Plaintiff as the licensor granted the Defendant the licence to use Stall No. 20A of the Market at a monthly licence fee of HK$3,000 (“the Oral Licence Agreement”).

11.  The Oral Licence Agreement contains, inter alia, the following provisions, whether expressly stated or inferred from the conduct of the parties:-

(i) The Defendant shall pay the Plaintiff the monthly licence fee in advance on the 30^th day of each and every calendar month; and

(ii) The Defendant shall strictly comply with the Code of Practice as set forth in the Licence Agreement; In the event of any breach or failure to adhere to the Code of Practice, the Plaintiff shall be entitled to terminate the Oral Licence Agreement forthwith.

12.  On 27 February 2024, in performance of the Licence Agreement, the Plaintiff delivered possession of Stall No.34 to the Defendant.

13.  On 1 September 2024, in performance of the Oral Licence Agreement, the Plaintiff delivered possession of Stall No.20A to the Defendant.

14.  Since June 2024 until the date of this writ, the Defendant by himself, his servants and agents, has on many occasions trespassed upon “the passageway outside stalls 33B, 34, 20A, 35 and 19 and loading bay of the Market (“the Trespassed Areas”) and loading bay of the Market” (quoting verbatim from paragraph 15 of the Statement of Claim) by placing his goods and chattels, which were stacked above human height and blocked a significant portion of the passageway, in those areas overnight and throughout the business hours of the Market (“the Trespassing Acts”). The Plaintiff annexed a plan with the Trespassed Areas hatched black, and the same plan can be found at the Annex to this Judgment.

15.  Moreover, since June 2024 until the date of this writ, in breach of the Licence Agreement and the Oral Licence Agreement, the Defendant, by himself, his servant and/or agents, has on many occasions used electric pallet trucks inside the Market.

16.  Despite repeated requests from the Plaintiff not to place his goods and chattels in “the Trespassed Areasand the loading bay” (quoting verbatim from paragraph 17 of the Statement of Claim) for extended periods and to refrain from using electric pallet trucks inside the Market, the Defendant has continued to do so.

17.  By reason of the pleaded matters, the Defendant is wrongfully in breach of the relevant provisions of the Licence Agreement and the Oral Licence Agreement and has committed the common law tort of trespass. According to the Plaintiff, the significant reduction in width of the passageways and the usable areas of the loading bay, as well as the unauthorised use of electric pallet trucks inside the Market, severely impacted the right to use the passageways by other licensees and visitors, resulting in breaches or potential breaches of licence agreements on the part of the Plaintiff, and interfered with the Plaintiff’s obligations to other licensees and to the Housing Authority under its tenancy. In addition, the Plaintiff had difficulties in licensing the vacant stalls, particularly Stall Nos. 19 and 35, due to the unpleasant appearance and the obstruction which deterred prospective licensees.

18.  Further, the Plaintiff has also suffered inconvenience, discomfort and disturbance during the period from June 2024 until present, and hence loss and damage due to the said breaches of the Licence Agreement and Oral Licence Agreement and/or nuisance committed on the part of the Defendant. According to the Plaintiff, the Trespassing Acts obstructed and continues to obstruct the Plaintiff, other licensees and visitors in the exercise or enjoyment of any right of use of the Trespassed Areas. The obstruction of the right to use “the Trespassed Areasand the loading bay” (quoting verbatim from paragraph 20(2) of the Statement of Claim) has created a potentially hazardous environment to the Plaintiff, other licensees and visitors, resulting in breaches or potential breaches of the Plaintiff’s other licence agreements and its tenancy agreement with Housing Authority. The Plaintiff has spent enormous time and effort to deal with the Defendant for the purpose of trying to resolve the Trespassing Acts and to handle complaints from other licensees or visitors related to the Trespassing Acts and the use of the Trespassed Areas.

19.  The Plaintiff claims damages to be assessed.

20.  By letter dated 30 October 2024 from its former solicitors, the Plaintiff, inter alia, demanded the Defendant to remove the goods and chattels in the Trespassed Areas and not to use electric pallet trucks within 3 days.

21.  The Defendant continued with his Trespassing Acts, and further failed to pay the licence fees in arrears for both Stall Nos. 34 and 20A in November to December 2024. Thus, on 17 December 2024, the Plaintiff instructed its former solicitors to issue a letter, demanding the arrears of licence fees and repeating the demand for the removal of the goods and chattels in the Trespassed Areas and not to use electric pallet trucks. In the said letter, the Plaintiff accepted the Defendant’s repudiation of the Licence Agreement and the Oral Licence Agreement under Clause 30(a) and 30(d) of the Licence Agreement, and the Licence Agreement was terminated with immediate effect, and the Defendant shall deliver up vacant possession of Stall Nos. 34 and 20A within 2 days and remove all goods and chattels therein.

22.  Shortly after the said letter, the Defendant settled the outstanding licence fees for November and December 2024 and undertook that placement of goods in the Trespassed Areas and the use of electric pallet trucks would cease. In reliance on the Defendant’s remedial actions and undertaking, the Plaintiff retracted its acceptance of the repudiation and reinstated the Licence Agreement and the Oral Licence Agreement.

23.  In January 2025, the Defendant fell into arrears of licence fees for both Stall Nos. 34 and 20A, and continued to place goods and chattels at “the Trespassed Areasand the loading bay” (quoting verbatim from paragraph 31 of the Statement of Claim). On 26 March 2025, the Plaintiff instructed its former solicitors to issue another letter to the Defendant, the contents of which were similar to those in the said letter issued on 17 December 2024.

24.  Shortly after the said letter, the Defendant settled the outstanding licence fees for January to March 2025 and undertook that placement of goods in the Trespassed Areas and the use of electric pallet trucks would cease. Accordingly, once again, in reliance on the Defendant’s remedial actions and undertaking, the Plaintiff retracted its acceptance of the repudiation and reinstated the Licence Agreement and the Oral Licence Agreement.

25.  In April 2025 and May 2025, in breach of the Licence Agreement and the Oral Licence Agreement, the Defendant settled the licence fees of both Stall Nos. 34 and 20A for the month of April 2025 and May 2025 beyond the stipulated timeline. On 13 June 2025, the Plaintiff instructed its former solicitors to issue yet another letter to the Defendant, stating that:-

(i) The Defendant’s repudiation of the Licence Agreement was accepted by the Plaintiff under Clauses 30(a) and 30(d) of the Licence Agreement, and that the Licence Agreement was terminated with immediate effect;

(ii) The Plaintiff shall recover vacant possession of Stall No. 34 within 7 days (i.e. 19 June 2025); and

(iii) The Defendant shall deliver up vacant possession of Stall No. 34 and remove all goods and chattels therein.

26.  On 16 June 2025, the Defendant through his former solicitors issued a letter seeking time extension of 14 days for surrendering vacant possession of Stall No.34. On 19 June 2025, the Defendant through his former solicitors sent a letter to the Plaintiff, denying the breach of the Licence Agreement and seeking particulars.

27.  On 19 June 2025 at around 1800 hours, Mr James Leung, director of the Plaintiff, together with various employees and agents of the Plaintiff, visited Stall No. 34 to recover possession, but the Defendant through his then Counsel and a representative of his former solicitors refused to allow the Plaintiff entry into Stall No.34, and informed Mr Leung that the Plaintiff shall not recover possession in the absence of a Court order.

28.  By way of Statement of Claim, the Plaintiff accepted the Defendant’s repudiation of the Oral Licence Agreement.

29.  Up to the date of the Statement of Claim, the Defendant has failed and/or refused to return possession of Stall Nos. 34 and 20A to the Plaintiff.

30.  Accordingly, given the previous conduct of the Defendant, unless ordered and/or restrained by this Court, the Defendant will continue to commit the Trespassing Acts and the aforesaid breaches of the Licence Agreement and the Oral Licence Agreement, and refuse to deliver possession of Stall Nos. 34 and 20A, whereby the Plaintiff would continue to suffer further irreparable and irremediable harm.

Service of Writ of Summons and Statement of Claim

31.  According to the Affirmation of Service filed on 3 July 2025, a sealed copy of the Writ of Summons and a copy Statement of Claim were served on the Defendant on 30 June 2025 by insertion through letter box in a sealed envelope properly addressed to the Defendant at his last known address in Sheung Wan, and in the Plaintiff’s opinion the said documents would have come to the Defendant’s knowledge within 7 days after insertion into the letter box.

32.  This Court is satisfied that the Writ of Summons and the Statement of Claim were duly served on the Defendant.

33.  The Defendant did not file any notice of intention to defend or any Defence.

Procedural History

34.  By an inter partes summons filed on 30 June 2025, the Plaintiff sought:-

(i) a mandatory injunction that the Defendant do remove or cause to be removed the items that he placed or caused or allowed to be placed in Trespassed Areas;

(ii) further or in the alternative, a prohibitory injunction to restrain the Defendant from using, occupying or enjoying the Trespassed Areas except in the form of the Right of Way or right to use the Trespassed Areas that is common to visitors of the market within 3 days;

(iii) a declaration that the Defendant has no right whatsoever to use, occupy or enjoy the Trespassed Areas except in the form of the Right of Way or right to use the Trespassed Areas that is common to visitors of the Market;

(iv) a declaration that the defendant failing (i) and (ii) above, the Plaintiff is entitled to remove any items placed by the Defendant in the Trespassed Areas and to be reimbursed by the Defendant for the expenses so incurred.

35.  At the hearing on 4 July 2025, Deputy District Judge B. Mak refused to grant an interim-interim injunction and gave directions to parties to file affidavit evidence.

36.  On 29 August 2025, the Plaintiff filed a summons for summary judgment.

37.  At the hearing on 29 August 2025, His Honour granted an interlocutory injunction (“Injunction Order”) until further trial or further order, but refused to grant any declaratory reliefs. Meanwhile, Ms Ng accepted that the summary judgment application was pre-mature as the Defendant had not yet given notice of his intention to contest. His Honour gave leave to the Plaintiff to withdraw the said summons with no order as to costs. His Honour’s reasoning was set out in the decision [2025] HKDC 1589.

Service of Present Summons, Hearing Bundle, Skeleton Argument and List of Authorities

38.  This Court is also satisfied that the summons of the present application was duly served on the Defendant. However, Ms Ng acknowledged that the Hearing Bundle, the Plaintiff’s Skeleton Argument and the Plaintiff’s List of Authorities were not served on the Defendant, relying on Order 65 rule 9 RDC and Part B of Practice Direction 5.4. I disagree. First, the service of hearing bundle, skeleton argument and list of authorities is governed by Practice Direction 5.4 but not Order 65 rule 9 RDC. In any event, as the Plaintiff’s case contains “other claims” within the meaning of Order 13 rule 6 RDC, sub-rule (1) thereof provides that the Plaintiff has to proceed with the action as if the Defendant had given notice of intention to defend, and therefore Order 65 rule 9 RDC is inapplicable. Secondly, Part B of Practice Direction 5.4 governs the service of skeleton argument and list of authorities for contested interlocutory summonses listed for less than 30 minutes for argument before a judge, which clearly applies to the present application. Indeed, I questioned why the Plaintiff had seen fit to lodge Skeleton Argument and List of Authorities but not to serve the same on the Defendant, but Ms Ng could not give me an answer.

39.  In fact, this Court received the electronic copy of the Plaintiff’s Skeleton Argument and List of Authorities on 22 December 2025, and hard copy of the same on 23 December 2025. The Skeleton Argument, while addressed to this Court for the hearing on 24 December 2025, was dated 22 August 2025, and Ms Ng made submissions on interlocutory injunctions and interim payment under Order 14 summons. This Court surmised that the Plaintiff’s Counsel had simply recycled parts of her skeleton argument prepared for the hearing for interlocutory injunctions on 29 August 2025 to be used at this hearing.

40.  In the morning of but shortly before the hearing, both Ms Ng and the Plaintiff’s solicitors informed the Court that there had been mistakes made in the Skeleton Argument and requested the Court to delay the commencement of the hearing so that the proper Skeleton Argument could be lodged. I declined to accede to the request. Both Counsel and solicitors for the Plaintiff had the duty to ensure that proper Skeleton Argument and List of Authorities were lodged and served. The Defendant, though acting in person, had the same right to be afforded reasonable opportunity to consider the Plaintiff’s written submissions and authorities. The Defendant would be deprived of the opportunity to consider the so-called revised or updated Skeleton Argument and List of Authorities. In the premises, I refused to accept the revised Skeleton Argument. Ms Ng then sought an adjournment of the hearing, and I declined. The Court’s time and resources should not be wasted by reason of the Plaintiff’s fault.

Legal Principles on Application for Final Judgment in Default of Notice of Intention to Defend and in Default of Defence

41.  Order 13 rule 6(1) RDC provides that where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.

42.  In this action, as the Plaintiff seeks injunctive relief, declaratory relief, recovery of possession of land and damages, Order 13 rule 6(1) RDC is applicable and, upon due service of the Writ of Summons and Statement of Claim, the Plaintiff has to proceed with the action as if the Defendant has given notice of intention to defend.

43.  Order 19 rule 7(1) RDC provides that where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

44.  Although paragraph (1) of the rule is expressed in mandatory terms, the rule is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment or to extend a party’s time to plead when it is just to do so. It may give an interlocutory judgment, and refer the case to a master to ascertain what amount the plaintiff is entitled. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/13.

45.  On an application for final judgment in default of defence pursuant to Order 19 rule 7 RDC, the court cannot receive any evidence but must give judgment according to the pleadings alone. The basis upon which final judgment can be obtained in default of defence is that of implied admission, i.e. the court will assume that the Statement of Claim has been impliedly admitted. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/2/1 and 19/7/11.

46.  Notwithstanding such a well-established principle, the Plaintiff’s supporting affirmations and exhibits for the application for the Injunction Order and the abandoned application for summary judgment, as well as the Defendant’s affirmation in opposition, were included in the Hearing Bundle of this application. These irrelevant documents ran to over 300 pages, and there were two lever-arch files for the Hearing Bundle. Ms Ng also made references to the said affirmation and exhibits in her Skeleton Argument. At the hearing, I indicated that the said affirmations and exhibits would not be considered.

47.  On the other hand, I noted that documents essential for the present application, namely (i) the affirmations of service of the Writ of Summons and the Statement of Claim, and (ii) a draft judgment were not included in the Hearing Bundle.

48.  The principle that a declaration will not be granted when giving judgment by consent or without trial, e.g. where judgment is obtained in default of defence or notice of intention to defend, is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled, for example when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied. Where declaratory relief is sought, the court will scrutinise the application carefully and does not hastily grant the relief sought. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/14 and 19/7/20.

Discussion

49.  I deal with the Plaintiff’s claims in respect of Stall Nos. 34 and 20A first.

50.  The Plaintiff submits that it is trite law that when a tenant defaults in the payment of rent without any bona fide defence, the landlord is entitled to seek summary judgment for vacant possession of the property, see e.g. The Centre (76) Limited v. Victory Serviced Office (HK) Limited[2020] HKCFI 2881, and the same shall apply to the Plaintiff who is the licensor.

51.  The Defendant’s breaches of the Licence Agreement and the Oral Licence Agreement, submits the Plaintiff, have rendered his licence liable to revocation. In such circumstances, the Plaintiff is entitled to seek summary judgment and/or, in the alternative, an interlocutory injunction for vacant possession of the premises: Yuen Kam Lok Eddy v. Yuen Lai Fun Cindy[2021] HKDC 1632.

52.  The Plaintiff further submits that same as the plaintiff in Yuen Kam Lok Eddy, as the tenant of the Market, the Plaintiff is entitled to be compensated in the circumstances where the Trespassed Areas have been occupied unlawfully by the Defendant. The Plaintiff is entitled to summary judgment for the mesne profits from 1 July 2025 until delivery of possession of the Trespassed Areas and the Stalls No. 20A and 39, to be assessed.

53.  As set out above, it was the Plaintiff’s pleaded case that the Licence Agreement and the Oral Licence Agreement were repudiated twice by the Defendant, such repudiations being accepted on both occasions by the Plaintiff, and such acceptances being in turn retracted subsequently and the Licence Agreement and the Oral Licence Agreement being reinstated by the Plaintiff upon the Defendant’s settlement of the licence fees in arrears. It was because of late settlement of licence fees for a third time that the Plaintiff accepted the repudiation of the Licence Agreement and the Oral Licence Agreement in June 2025 and by the Statement of Claim respectively once and for all.

54.  At the hearing, this Court drew the attention of Ms Ng to Zheng Chulin v Wo Kee Hong Industrial Ltd CACV 56/2012, unreported, 12 June 2012, paragraph 2, and Chitty on Contracts (35^th edition), Volume 1, paragraph 28-066, for the general principle that once a repudiation of the contract has been accepted, the acceptance cannot be withdrawn. Further, if parties thereafter ‘resume’ performance of ‘the contract’, their rights are governed by a new contract, even if the terms remain the same. Ms Ng admitted that she did not have any authority saying the contrary.

55.  It follows that the Plaintiff’s pleaded case that the Licence Agreement and Oral Licence Agreement were twice repudiated, such repudiations being accepted on both occasions and such acceptances being in turn retracted subsequently is unarguable as a matter of law. By the letter dated 17 December 2024 from the Plaintiff’s solicitors, the Defendant’s repudiation of the Licence Agreement and the Oral Licence Agreement was accepted and the Plaintiff could not subsequently retract such acceptance or reinstate the two agreements. While it may be true that some sort of legal or equitable relationship had existed since the first acceptance of repudiation by the said letter dated 17 December 2024 by reason of the Defendant’s continuous occupation of the two stalls at a monthly licence fee with the Plaintiff’s consent, and the subsequent repudiation or breach of that relationship could have given rise to the Plaintiff’s right to recover possession of the two stalls and sue for damages, that relationship was not governed by the Licence Agreement or the Oral Licence Agreement. Nonetheless, the Plaintiff is bound by its Statement of Claim but the proper basis of the Defendant’s occupation of the stalls after 17 December 2024 and the Plaintiff’s exercise of its right to recover possession at the date of the Statement of Claim is not pleaded.

56.  In my judgment, it follows that the present application for final judgment in respect of injunctive and declaratory reliefs, vacant possession and mesne profits relating to the two stalls must fail.

57.  That said, as is clear from Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/7, the Plaintiff is entitled to proceed to trial, with such necessary amendments to its pleaded case.

58.  Turning to the Plaintiff’s claim in respect of the Trespassed Areas, a licensee under a licence may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with its licensor it enjoys. See Chi Yum Buddhist Hall Association Limited v Yu Lik Wai William and another[2022] HKDC 282, per HHJ Jonathan Wong, at paragraph 70, applying Manchester Airport Plc v Dutton [2000] QB 133 at 150A-C.

59.  As a matter of law, therefore, the Plaintiff is prima facie entitled to sue the Defendant in trespass in respect of the Trespassed Areas.

60.  Nonetheless, the subject area of the trespass claim is not properly defined. While “Trespassed Areas” was defined in paragraph 15 of the Statement of Claim as “the passageway outside stalls 33B, 34, 20A, 35 and 19 and loading bay of the Market”, the additional words “loading bay of the Market” appeared immediately after the said definition. One wonders whether “loading bay of the Market” is part of the Trespassed Areas or not. The confusion is not cleared by the plan annexed to the Statement of Claim, as the “loading bay” (“上落貨區” in Chinese on the plan) is far away from Stall Nos. 33B, 34, 20A, 35 and 19 and is not hatched black on the plan in any event. On the other hand, if the Plaintiff is suggesting that the hatched black areas include both the “passageway” and the “loading bay”, it should be noted that none of the hatched black areas is identified as the “passageway” or the “loading bay”. So, if the “loading bay” was not meant to be part of the Trespassed Areas then it is impossible to differentiate between the passageway and the loading bay. Indeed, according to the plan at the Annex, there are areas, presumably parts of the passageway, left blank (i.e. not hatched black) (1) between the hatched black area contiguous to Stall Nos. 34 and 20A on one side and the hatched black area contiguous to Stall Nos. 35 and 19 on the other side, and (2) between the hatched black area contiguous with Stall Nos. 33B and 34 on one side and Stall Nos. 39A and 38 on the other side, and I do not know the precise and justifiable boundaries or dimensions of the Trespassed Areas.

61.  In my judgment, the subject area of the trespass claim is too confusing, vague and imprecise. I refuse to exercise my discretion to grant final judgment of the trespass claim in favour of the Plaintiff.

62.  Finally, I note also the damages sought in paragraphs 19 to 21 of the Statement of Claim are based on breach of the Licence Agreement and the Oral Licence Agreement, trespass and/or nuisance since June 2024. Given my aforesaid rulings on the unarguable case of the two agreements and on the confusing, vague and imprecise trespass claim, I do not see it fit to grant any final judgment on this claim.

Disposition

63.  I dismiss the Plaintiff’s application.

64.  Costs should normally follow the event. Nonetheless, since the Defendant did not participate in the present summons and did not appear at the hearing, I make a costs order nisi that there be no order as to costs.

Ms Sharon Ng, instructed by Cheung & Liu Solicitors, for the plaintiff

The Defendant acted in person, absent

Annex

DCCJ 3650/2025

[2025] HKDC 1589

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3650 OF 2025

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BETWEEN

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DECISION

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Introduction

1.  The plaintiff filed an inter-parte summons on 30 June 2025 (“the summons”) seeking:

(a) a mandatory injunction that the defendant doth remove the items that he placed or caused or allowed to be placed in the passageway outside stalls 33B, 34, 20A, 35 and 19 and the loading bay of the market situated at Ground Floor of Kwai Chung Shopping Centre, Kwai Chung Market (“the trespassed areas”) [the area hatched black in Annexure A];

(b) further or in the alternative, a prohibitory injunction to restrain the defendant from using, occupying or enjoying the trespassed areas except in the form of the right of way or right to use the trespassed areas that is common to visitors of the market;

(c) a declaration that the defendant has no right whatsoever to use, occupy or enjoy the trespassed areas except in the form of the right of way or right to use the trespassed areas that is common to visitors of the market;

(d) a declaration that the defendant failing (a) and (b) above, the plaintiff is entitled to remove any items placed by the defendant in the trespassed areas and to be reimbursed by the defendant for the expenses so incurred.

2.  At the call-over hearing on 4 July 2025, I declined to grant an interim-interim injunction and gave directions for the parties to file their respective affidavit in opposition and in reply.

3.  On 16 July 2025, the plaintiff filed another summons for summary judgment.

4.  At the hearing on 29 August 2025, Miss Sharon Ng, counsel for the plaintiff, accepted that the application was pre-mature as the defendant has not yet given notice of his intention to contest. I gave leave to the plaintiff to withdraw the said summons with no order as to costs.

5.  As counsel’s submission and the authorities are in English, this decision is written in English. If in need, the defendant may request oral interpretation of this decision by a court interpreter.

Legal principles on grant of interlocutory injunction

6.  The essential principles concerning the grant of an interlocutory injunction have been set out in the leading English authority of American Cyanamid Co v Ethicon Ltd [1975] AC 396. The House of Lords held that the requirements were first “that there is a serious question to be tried” and second “that the balance of convenience lies in favour of granting an injunction”: see Hong Kong Civil Procedure 2025 Vol 1 at 29/1/8.

7.  Deputy High Court Judge Keith Yeung SC (as he then was) in Interactive Media Network (China) Holdings Ltd v Just Media Group Limited and others[2018] HKCFI 1114 has helpfully highlighted the guiding principles:

“28. The following guiding principles explained by Lord Diplock at page 408 of American Cyanamid are also relevant:

“… So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

As to that, the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be 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. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.

Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.””

8.  Ma J (as he then was) in Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 at paras 11-12 explained the court’s approach in dealing with interlocutory mandatory injunction and prohibitory injunction:

“11. The applicable principles for interlocutory injunctions are well-known and do not need repetition. Generally, one needs to look no further than American Cyanamid v Ethicon Ltd [1975] AC 396 and the relevant text in Hong Kong Civil Procedure 2002 Volume 1 at paragraphs 29/1/8-29/1/50.

12. I would, however, only highlight one aspect. Where, as in the present case, the plaintiffs seek an interlocutory mandatory injunction (that is, an order requiring the defendant to do something, in contrast to a prohibitory injunction which restrains the defendant from doing something), the following matters should be borne in mind as being the court’s approach:-

(a) In the case of interlocutory mandatory injunctions, it is often said or assumed that a court will not grant one unless it feels a high degree of assurance that at the trial of the action, it will be shown that the injunction was rightly granted: see Shepherd Homes Ltd v Sandham [1971] Ch 340 at 351. This has been explained and sometimes understood as meaning that in the case of an interlocutory mandatory injunction, the applicant’s case on the merits has to be made out to a higher standard of proof than in the case of prohibitory injunction: see the Court of Appeal’s observations in TKI Limited v New Happy Limited [1995] 1 HKC 551 at 554 B-D.

(b) Broad statements such as the above must, however, be properly put in context.

(c) The basic approach to interlocutory injunctions, whether mandatory or prohibitory, is the same. Section 21L of the High Court Ordinance, Chapter 4 makes no distinction between these two types of injunctions and simply states that interlocutory injunctions may be granted if it appears to be just or convenient to do so.

(d) At the interlocutory injunction stage, the principal concern of the court is that it might make a wrong decision in the sense that after trial, the party to whom an interlocutory injunction has been granted may lose or the party who has been refused one, may win. The court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong. This “fundamental” principle is the source of the guidelines that have evolved for the determination of interlocutory injunctions (included are, of course, the American Cyanamid guidelines) and therefore, in the application of any guidelines, sight must not be lost of this principle. See here: Films Rover International Ltd v Cannon Films Sales Ltd [1987] 1 WLR 670 at 680 D-G, in a passage from the judgment of Hoffman J which was approved by the House of Lords in R v Secretary of State for Transport ex parte Factortame Limited (No 2) [1991] 1 AC 603 and recently reiterated in the English Court of Appeal decision of Zockoll Group Ltd v Mercury Communications Ltd [1998] FSR 354 (which Mr Au was kind enough to place before me).

(e) Two common guidelines are of course the consideration of the merits of the plaintiffs’ claim and the balance of convenience. Here, it is of course easy to see at once how they are linked to the fundamental principle: there must be a risk of injustice if the plaintiff cannot even establish a serious question to be tried or that one or the other party will be put to substantial inconvenience or prejudice if an interlocutory injunction were or were not granted.

(f) In the case of interlocutory mandatory injunctions, the risk of injustice (being wrong in the sense referred to above) can be quite acute. In FilmsRover International Limited, it was put thus by Hoffman J at 681 B-E:

“In Shepherd Homes Ltd v Sandham, Megarry J spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage: they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial. One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable. In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.”

(g) This passage in my view explains just why it is that generally a court will have to feel a high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given; all this being an exercise in assessing the strength of the plaintiffs’ case: see sub-paragraph (1) above. However, I emphasize that this is only generally the court’s approach. Where it is shown, as an exception to this general approach, that the case is one in which the withholding of on interlocutory mandatory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel the “high degree of assurance” as aforesaid, it would be right to grant an interlocutory mandatory injunction: see FilmsRover International Limited at 681 A-B.

(h) This of course brings into focus the balance of convenience. Thus, if a plaintiff in seeking an interlocutory mandatory injunction cannot demonstrate more than a serious question to be tried, it will have to show that the balance of convenience tilts so much in its favour that justice requires such an injunction to be granted, even taking into account those aspects of an interlocutory mandatory injunction expressed by Hoffman J in FilmsRover International Limited.

(i) At no stage, however, in the consideration of the matter does the court lose sight of the practical realities of the situation to which the injunction will apply: see NWL Limited v Woods [1979] 1 WLR 1294 at 1306C per Lord Diplock.”

The plaintiff’s grounds

9.  The plaintiff is the tenant of the premises known as Market on the Ground Floor of Kwai Chung Shopping Centre, Kwai Chung Estate (“the Market”) with the Housing Authority as the Landlord since 2003. The plaintiff as the tenant of the Market is obliged to provide various services and commodities and to ensure safe and smooth operation of the Market.

10.  In exercise of the obligations as the tenant, the plaintiff entered into a licence agreement with the defendant on 31 January 2024 for the use of Stall No 34 of the Market. By a further oral licence agreement in late August 2024, Stall No 20A was also licensed to the defendant.

11.  Since around June 2024, the defendant placed various goods and chattels along the passageway outside Stall Nos 33B, 34, 20A, 35 and 19 without the plaintiff’s authorization.

12.  The occupation of the trespassed areas by goods was throughout the business hours of the Market and overnight. The bags or parcels are large and bulky and at times stacked above human height, creating obvious hazard to users of the Market. The width of the passageways were reduced substantially so that it caused difficulties for visitors who are visually impaired and those on wheelchair to use.

The defendant’s opposition

13.  The defendant said he is operating a pickup point. By the nature of his business, there must be goods in and outside his stalls. However, he did clear up the goods everyday. During the business hours, he did not trespass the space intentionally.

14.  In respect of the photographs exhibited by the plaintiff, he said the time stamps were not clearly shown. He cannot rule out that they were taken when the goods had just arrived or when the shop keepers were about to move the goods into the stalls.

15.  The defendant said the loading bay belongs to the government, he as a tenant has the right to use for unloading goods.

16.  The defendant further said that it is his understanding that the stall owners of all markets in Hong Kong are allowed to use an area of about 3 square metres outside the stall.

17.  The defendant alleged that the plaintiff is attempting to do business with his suppliers directly. He suggested that the plaintiff is harbouring a motive to drive him out of the business.

18.  At the hearing, the defendant said the plaintiff allowed him to operate in a “Morning operation and evening demolition (朝行晚拆)” mode, which means that he can place the goods outside his stalls during business hours but he must put them back in his stalls thereafter. He explained that because of his thriving business, he would operate at times up to 3 am. That explains why goods were seen outside his stalls as late as 9 pm.

Serious question to be tried

19.  Judging from the parties’ respective case, there is no doubt that there are serious questions to be tried, namely, whether the defendant has trespassed the trespassed areas and if so, whether it was with the consent of the plaintiff.

20.  Nevertheless, Miss Ng went further to submit that where there is no arguable defence and the claim for an interlocutory injunction is justified, there is no question of balance of convenience or adequacy of damages, citing Yeko Trading Ltd v Chow Sai Cheong Tony [2000] 2 HKC 612 and Home Expo (Hong Kong) Limited v International Trademart Company Limited, HCA 1183/2014, 11/7/2014, unreported.

21.  In Yeko Trading, Chung J having formed the view that the defendants had not shown an arguable defence, accepted that based on the English authorities of Manchester Corp v Connolly & Ors [1970] 1 Ch 420 (a pre-American Cyanamid decision) and Official Custodian for Charities v Mackey [1985] 1 Ch 168 (a post-American Cyanamid decision), there is no need to consider the issue of balance of convenience provided that the plaintiff’s claim for an injunction order is justified if it should succeed in proving its claim.

22.  The principle was also applied by L Chan J in Home Expo.

23.  From the photographs taken by the plaintiff, it can be seen that bags of different sizes were placed in the trespassed areas at different times of the day and as late as after 9 pm.

24.  The defendant put up 3 objections.

25.  He firstly said that the time stamps in those photographs were not clearly shown, they could be intentionally taken when the goods had just arrived or when the shop keepers were about to move the goods into the stalls.

26.  The time stamps on all the photographs are in fact clearly shown. Further, the bags were stacked along both sides of the passageway, they do not seem to have been just arrived or were about to be moved into the stalls. I see no force in the first objection.

27.  Secondly, the defendant said he as a tenant has the right to use the loading bay which belongs to the government.

28.  The function of the loading bay is of course for the loading and unloading of goods. Goods are meant to be moving in and out of the loading bay and should not remain in there longer than necessary. Otherwise, the operation of the loading bay would be hindered if not stifled.

29.  From the photographs taken by the plaintiff, pallets piled up with goods occupied more than half of the width of the loading area at different times of the day ranging from 10:04 am to 9:56 pm. The placing of goods in the loading bay in such manner cannot be said to be normal.

30.  Thirdly, the defendant alleged that he was allowed by the plaintiff to operate in a “Morning operation and evening demolition” mode.

31.  It goes without saying that the permission may either be given in writing or orally. However, no particulars of either the document evidencing the permission or the person giving such permission was provided by the defendant.

32.  In any event, it is quite clear that the goods were placed outside the defendant’s stalls continuously. From the volume of the goods as shown in the photographs, it is not physically possible that they can all be put into the defendant’s stalls.

33.  Finally, the defendant suggested that the plaintiff was intending to do business with his suppliers directly and therefore wanted to drive him out of business.

34.  Suffice it to say, even if the defendant’s suggestion is established, it does not exonerate the defendant from committing a breach of the licence agreements with the plaintiff.

35.  From the above analysis, I am of the view that the defendant has not shown an arguable defence.

Balance of convenience

36.  I am indeed bound by the decision in Yeko Trading. By reason of my conclusion above, there is no need to consider the issue of balance of convenience.

37.  For the sake of completeness, however, I would briefly deal with the issue.

38.  Due to the occupation by the goods, the width of the passageways is greatly reduced. As such, inconvenience is caused to visitors of the Market. Worse still, visitors on wheelchair or with visual disability would have difficulties passing through. In case of fire, the goods would very likely be an added obstruction to the escape route. Viewed in this light, the plaintiff would certainly not be adequately compensated by damages in the event of succeeding after trial.

39.  On the other hand, the loss the defendant may have suffered by the grant of an interlocutory injunction is monetary in nature. The defendant would be adequately compensated in the event of succeeding after trial. As the operator of the Market, the plaintiff should be in a financial position to pay such damages.

40.  Accordingly, if the balance of convenience comes into question, the plaintiff is still entitled to an interlocutory injunction.

Conclusion and order

41.  By reasons of the foregoing, I am driven to the conclusion that the plaintiff is entitled to an interlocutory injunction.

42.  Paragraphs 3 and 4 of the summons are seeking declaratory reliefs, which of course is pre-mature at the interlocutory stage.

43.  The plaintiff is only entitled to have an interlocutory injunction until trial or further order. Subject to that, I would make an order in terms of paragraphs 1 and 2 of the summons of which they are not in the alternative.

Costs

44.  I make a costs order nisi that the defendant shall bear the plaintiff’s costs of this application with certificate for counsel, to be taxed if not agreed.

45.  Unless an application for variation by letter is made within 14 days from the date of this decision, the costs order nisi shall become absolute.

Ms Sharon Ng, instructed by Cheung & Liu, for the Plaintiff

The Defendant was not represented and appeared in person