CHEUNG LO FAT AND OTHERS v. TANG KUNG LEUNG AND OTHERS

DCCJ 654/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 654 OF 2013

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BETWEEN

CHEUNG LO FAT 1st Plaintiff
CHEUNG CHEUNG HING 2nd Plaintiff
CHEUNG HOI CHI 3rd Plaintiff
MOK FOR KWAI 4th Plaintiff
CHEUNG KAM FOOK 5th Plaintiff
MAN HEI LEUNG 6th Plaintiff
MAN SIU KEI 7th Plaintiff
CHEUNG SUM KWAI 8th Plaintiff
CHEUNG FOR WAI 9th Plaintiff

and

TANG KUNG LEUNG 1st Defendant
TANG LAI MOON 2nd Defendant
CHEUNG CHEUK HUNG 3rd Defendant
CHEUNG KUT SHUN 4th Defendant
CHEUNG YAU MING 5th Defendant
TANG WING SHING 6th Defendant
TANG KIN YIP 7th Defendant
TANG TUNG SHING 8th Defendant
CHEUNG MUK KAM 9th Defendant
LIU YUEN CHUNG STEVEN 10th Defendant
CHEUNG FOR KAM 11th Defendant

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Before: HH Judge Chow in Chambers (open to public)

Date of Hearing: 11 October 2013
Date of Decision: 11 October 2013

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D E C I S I O N

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1. I have to deal with two summonses taken out by the plaintiff. The first one deals with an application to amend the statement of claim,in particular, to include the intended defendant, Mr Steven Liu, to be one of the defendants in this case. I will deal with thismatter first, because this is objected to by Mr Liu, represented by counsel.

2. The first ground of objection is that the plaintiffs do not plead that the intended 10th defendant, namely Mr Liu, has any interestwhatsoever in the lands concerning the passageway. Neither is there any evidence put forward by the plaintiffs to the effect thatthe intended 10th defendant has any interest in the lands one way or the other. Plainly, joining the intended 10th defendant hereindoes not assist the court in determining the first issue of the dispute or at all.

3. In my judgment, whether the 10th intended defendant has any interest in land is not relevant. In this case, the plaintiffs claimthat they are and were at all material times the respective owners or occupiers of the premises set out in the schedule 1 in thestatement of claim, and they claim that leading from the respective premises there is a way to the public highway between Lam HauTin and the lot numbers referred to in the statement of claim in DD120 (referred to as “The Way”).

4. Under paragraph 3 of the statement of claim, the plaintiffs say that they have been for the full period of 20 years and more usingThe Way without interruption for the purposes of passing and repassing by themselves and their servants, etc, and then they say thatthey claim the right to do the matters referred to in paragraph 3, the right of way as having been used by them respectively andtheir respective predecessors, etc. They allege that the defendants obstructed their right of way and they claim under (1) of therelief that the plaintiffs are entitled to the right of way, and under (2) they ask the court for an injunction restraining the defendantsfrom placing or allowing to be placed in The Way without anything substantially restricting, preventing, obstructing or otherwiseinterfering with the reasonable enjoyment of The Way by the plaintiffs. To solve the issue under (1) and (2) there is nothing relatingto an interest of land on the part of the intended 10th defendant. It is a groundless objection.

5. The second objection is that it is not necessary for determining the second issue of the dispute in this case. The second issueis that the defendants do the alleged acts, interfering with the plaintiffs’ right to use the passageway, on assumption that theplaintiffs have the right to use the passageway. That is the first issue. Defence counsel for the intended 10th defendant set outthe reasons for being not necessary for determining the second issue of the dispute under paragraph 17 of its skeleton submission:

(a) whether the defendants did wrongfully obstruct the passageway at the material time does not depend on whether the intended 10thdefendant advised and/or assisted them to do so;

(b) conversely, if the intended 10th defendant did advise and/or assist the defendants to obstruct the passageway but the defendantsdid not do so, there is no encroachment on the plaintiffs’ right to use the passageway, if any.

6. There is evidence from the plaintiffs’ affirmations to show that the intended 10th defendant did participate in causing obstructionto the right of way, if what is said in the affirmation is truthful. Of course, at this stage it is not for me to decide whetherthe affirmation of Cheung Kam Fook, Mok Chi Cheung Benny, Cheung Choi Lun and Man Cheung Lam is truthful or not. I assume that theaffirmation is true, and then on that basis I consider whether there is evidence to show that Mr Liu took part in causing obstructionto the right of way.

7. On page 70 of the trial bundle for this hearing, H, I and J are relevant. On 10 June 2013, CCTV records show and “we witnessedthat Steven Liu directed and told Cheung For Yau and other workers how and where to place such metal posts or frames or fencelikestructures to extend such obstruction of such right of way in Lot No 2457 and 2459 in DD120”. This is an example showing thathe directed and told other people to place metal posts or frames or fencelike structures to extend the obstruction of right of way.

8. This piece of evidence is sufficient to support the part of the statement of claim intended to be amended.

“6B. From 28 May 2013 onwards, the 2nd to 5th, 9th and 10th defendants started placing metal posts or frames or fencelike structuresin the middle of such right of way which the plaintiffs should enjoy by virtue of the said injunction which caused obstruction, hindranceand interference of the plaintiffs’ enjoyment of such right of way.”

9. This allegation under 6B is that the 10th defendant, up to this stage still the intended 10th defendant here, took part in the obstructionactivities. His defence counsel said that he is only a person who advised and assisted the defendants in placing metal or framesand fencelike structures. The allegation is that he only advised and assisted, so he was not related to the obstruction. That cannotbe correct, because under 6B he actually took part in the obstruction activities, and that is supported by the hearing bundle onpage 70 which I read out.

10. So the joinder of the 10th defendant is necessary because under order 15, rule 6(2)(b) of the Rules of the District Court:

“(i) Any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all mattersin dispute in the causal matter may be effectively and completely determined and adjudicated upon.”

11. If the allegation as revealed by the affirmation is true and if the intended 10th defendant is not joined, the matter cannot be completelydetermined because he is alleged to be one of the persons who caused the obstruction, and without him, the matter cannot be completelydetermined. So he is necessary to be joined.

12. So I allow the plaintiffs’ application to join him as the 10th defendant.

(Chow)
District Court Judge

Mr Simon Yip, instructed by Raymond Chan, Kenneth Yuen & Co, for the 1st to 9th plaintiffs

K C Ho & Fong, for the 1st, 2nd and 9th defendants, excused, absent

Paul W Tse, for the 3rd, 4th and 5th defendants (not involved), absent

Mr Vod Chan, instructed by T K Tsui & Co, for 10th intended party

The 6th, 7th, 8th and 11th intended parties, in person, absent

Please refer to HCMP152/2014 for the relevant appeal(s) to the Court of Appeal.