DCCJ4864/2022 CHEUK CHI WAI AND ANOTHER v. HSU MAN NAI AND OTHERS - LawHero
DCCJ4864/2022
區域法院（民事）Deputy District Judge Kay Seto11/5/2023[2023] HKDC 633
DCCJ4864/2022
A A
B B
DCCJ 4864/2022
C
[2023] HKDC 633 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CIVIL ACTION NO 4864 OF 2022
F F
G ———————— G
BETWEEN
H H
CHEUK CHI WAI (卓志偉) 1st Plaintiff
I LAI PUI FUN DENISE (賴焙壎) 2nd Plaintiff I
J
and J
st
HSU MAN NAI (徐曼妮) 1 Defendant
K K
胡鵬 2nd Defendant
L 楊碧芬 3rd Defendant L
M M
————————
N N
O
Before: Deputy District Judge Kay Seto in Chambers O
Date of Hearing: 12 May 2023
P P
Date of Decision: 12 May 2023
Q Q
——————————
R R
DECISION
S —————————— S
T T
U U
V V
-2-
A A
B B
1. This is an application by the plaintiffs by summons filed on
C
6 February 2023 to enter default judgment against the defendants pursuant C
to Order 19, rule 7 of the Rules of the District Court (Cap 336H) (“RDC”)
D D
in the form of a mandatory injunction and for damages to be assessed.
E E
Background
F F
G 2. These proceedings concern a dispute between neighbours of G
Fairview Park, a residential estate in Yuen Long, New Territories. The
H H
plaintiffs allege that the defendants are liable for nuisance and breaches of
I sections 4 and 5 of the Noise Control Ordinance (Cap 400),1 section 20 of I
the Rabies Regulation (Cap 421A),2 and provisions of the Deed of Mutual
J J
Covenant (“DMC”) and Estate Rules (“Estate Rules”) of Fairview Park.
K K
3. As shown in the plaintiffs’ statement of claim:
L L
M (1) The plaintiffs were and are the registered owners of M
No 45, 6th Street, Section M, Fairview Park (“House
N N
45”).
O O
(2) The 1st defendant was and is the registered owner of
P P
No 49, 6 Street, Section M, Fairview Park (“House
th
Q 49”). She is the mother of the 3rd defendant. The 2nd Q
and 3rd defendants were and are occupiers of House 49.
R R
S (3) Clause 5(c) of the Second Schedule to the DMC S
provides that each owner shall covenant “not to do or
T T
permit or suffer to be done anything in any sub-section
U U
V V
-3-
A A
B B
or unit which may be a nuisance or cause an annoyance
C
to the owners or occupiers of other sub-sections or C
units”.
D D
E (4) Clause 15 of the Second Schedule to the DMC provides E
that each owner shall covenant “to observe and perform
F F
all the covenants conditions and provisions of this Deed
G and the Estate Rules”. G
H H
(5) Chapter B of the Estate Rules provides that residents of
I Fairview Park may keep one licensed dog, provided I
that the following conditions, among other things, are
J J
observed:
K K
(a) “Dogs must be chained in kennels at rear garden
L L
or kept inside houses if they have the propensity
M to attack or bark at passer-by” (Rule 6.1.3). M
N N
(b) “Dogs must not be allowed to bark constantly,
O causing continuous nuisance to neighbours in O
the tranquil environment of Fairview Park”
P P
(Rule 6.1.4).
Q Q
(c) “No dog or pet is allowed to foul any part of the
R R
common areas in the Estate. They should be
S trained accordingly” (Rule 6.1.6). S
T T
U U
V V
-4-
A A
B B
(6) In contravention of section 20 of the Regulation, the
C
DMC and the Estate Rules, four unlicensed dogs have C
nd rd
been kept by the 2 and 3 defendants in House 49
D D
since 2018 and three of these dogs constantly and
E fiercely bark throughout the day and during the night E
nd rd
time. Further, the 2 and 3 defendants have allowed
F F
the four dogs to urinate at the sidewalk of the garden of
G House 49 and the water cleansing the urine to flow to G
the street, which is a common area of Fairview Park.
H H
I (7) Despite repeated demands by the plaintiffs and the I
management company of Fairview Park, the defendants
J J
have refused to stop the nuisance and fouling of
K common areas caused by the four dogs kept in House K
49.
L L
M (8) As a result of the defendants’ nuisance and fouling of M
the common areas, the plaintiffs can no longer enjoy
N N
quite enjoyment of House 45, and have experienced
O shock, annoyance, frustration and anxiety on a daily O
basis.
P P
Q 4. The plaintiffs filed a specially endorsed writ on 12 December Q
2022 and duly served the same on the defendants on 14 December 2022 by
R R
insertion through the letter box of House 49 pursuant to Order 10, rule
S 1(2)(b) of the RDC. The defendants failed to give any notice of intention S
to defend within time. By a letter dated 28 December 2022 to the court
T T
registry, the defendants requested for an adjournment of the proceedings
U U
V V
-5-
A A
B B
on the ground that all of them had contracted COVID-19. On 13 January
C
2023, Master Timon Shum directed the defendants to issue a summons in C
respect of their intended application for adjournment, but no such summons
D D
has ever been issued by the defendants. On the same day, the plaintiffs
E filed and served on the defendants a notice of intention to enter judgment. E
F F
5. Still, the defendants failed to file and serve their defence.
G Accordingly, on 6 February 2023, the plaintiffs issued the summons for G
default judgment as I mentioned at the outset. I am satisfied that the
H H
summons was duly served on the defendants.3 I therefore proceeded with
I this hearing in the defendants’ absence. During the hearing, the 3rd I
defendant appeared, upon which I explained the court procedures to her
J J
and allowed her to make oral submissions in relation to the present
K summons. K
L L
The relevant legal principles
M M
6. The relevant legal principles on granting default judgment
N N
under RDC Order 19, rule 7 are well established and may be summarised
O as follows: O
P P
(1) In determining whether to grant default judgment, the
Q court must consider the application according to the Q
pleadings alone, and decide whether the plaintiffs
R R
appear to be entitled to judgment on their statement of
S claim: Seto Yim King v Soo Hooyet Dew [2019] HKCFI S
2640, §10.
T T
U U
V V
-6-
A A
B B
(2) The court cannot receive any evidence, and it is thus
C
not necessary for the plaintiffs to prove their case by C
evidence: Times Square Limited v Lee Kwun Kit
D D
trading as JL Music and Anor [2020] HKCFI 438,
E §14(3). E
F F
(3) Notwithstanding the wording in Order 19, rule 7(1), the
G court’s power to grant default judgment is discretionary G
and not mandatory: Times Square Limited (supra),
H H
§14(4).
I I
7. In relation to the plaintiffs’ claim for injunctive relief, it is
J J
well established that the court has jurisdiction to grant permanent
K injunctions in default judgment applications: Biostime International K
Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2
L L
HKLRD 658, §§12-13; Times Square Limited (supra), §14(5).
M M
8. With these principles in mind, I turn to the facts of the present
N N
case.
O O
Discussion
P P
Q 9. First and foremost, I take note that, even now, nothing has Q
been filed on behalf of the defendants, and although the 3rd defendant has
R R
appeared in court this morning, there is no indication in her oral
S submissions that the defendants have any substantive defence on the S
merits.
T T
U U
V V
-7-
A A
B B
10. I have had regard to the explanation of the principles and the
C
relevant considerations set out by the Court of Appeal in The Decurion C
[2012] 1 HKLRD 1063. Having regard to those principles and to all the
D D
circumstances of this case, I consider that my discretion should be
E exercised in favour of entering judgment for the plaintiffs for the following E
reasons.
F F
G
(a) Injunctive relief G
H H
11. The availability of an injunction has been said to be a
I
touchstone of nuisance: Clerk and Lindsell on Torts (23rd ed, 2020), §19- I
32. As Lord Hoffmann explained in Hunter v Canary Wharf Ltd [1997]
J J
AC 655, 706C, nuisance which is productive of sensible personal
K discomfort constitutes an unlawful threat to the utility of one’s land such K
that the possessor or occupier is entitled to an injunction.
L L
M 12. On the facts as pleaded, I am satisfied that the plaintiffs are M
entitled to a mandatory injunction requiring the defendants to forthwith
N N
remove all four unlicensed dogs from House 49 for the following reasons:
O O
(1) The plaintiffs are entitled to have quiet enjoyment of
P P
House 45. The DMC and the Estate Rules expressly
Q provide that no nuisance shall be caused to neighbours Q
in the tranquil environment of Fairview Park.
R R
S (2) The 2nd and 3rd defendants are in breach of section 20 S
of the Rabies Regulation and Chapter B of the Estate
T T
Rules for keeping four unlicensed dogs in House 49.
U U
V V
-8-
A A
B B
C
(3) Noise caused by dogs barking constantly clearly C
constitutes actionable nuisance: Clerk and Lindsell on
D D
Torts (supra), §19-18. By permitting the dogs to bark
E constantly and fiercely day and night, the defendants E
have caused continuous nuisance to the plaintiffs, and
F F
are thus in breach of sections 4(1) and 5(3) of the Noise
G Control Ordinance and Chapter B of the Estate Rules. G
Further, the 1st defendant, being the registered owner of
H H
House 49 and thus a party to the DMC, is in breach of
I Clauses 5(c) and 15 of the Second Schedule to the I
DMC for her failure to observe and perform the
J J
provisions of the DMC and those of the Estate Rules.
K K
(4) By causing or allowing the water cleansing the dogs’
L L
foul to flow into the common areas of Fairview Park,
M the defendants have caused unreasonable annoyance to M
the plaintiffs, which constitutes nuisance at common
N N
law: Clerk and Lindsell on Torts (supra), §19-18.
O Further, the 1st defendant is in breach of Clauses 5(c) O
and 15 of the Second Schedule to the DMC for
P P
permitting such acts to be done which cause an
Q annoyance to the plaintiffs. Q
R R
(5) Without an injunction ordering the defendants to
S remove the four dogs from House 49, it is more likely S
than not that the defendants’ nuisance and breaches of
T T
statutory provisions, the DMC and the Estate Rules
U U
V V
-9-
A A
B B
would persist, further depriving the plaintiffs of quiet
C
enjoyment of their property. C
D D
13. As to the terms of the injunction, the plaintiffs seek an order
E that the defendants remove permanently all the dogs in House 49 from the E
property. It appears to me that the plaintiffs’ proposed wording may be
F F
construed as to restrain the defendants from keeping any dog in House 49
G in the future. This would potentially amount to a perpetual injunction, G
which is plainly too wide in scope and is inconsistent with Chapter B of
H H
the Estate Rules which provides that residents of Fairview Park may keep
I one licensed dog. I
J J
14. In The Incorporated Owners of Nos 3-3E Wang Fung Terrace
K v Law Chi Wing and Anor, DCCJ 230 of 2006 (28 March 2006), §68, K
HH Judge Marlene Ng (as she then was) refused to grant a perpetual
L L
injunction to restrain one of the defendants therein from keeping dogs at
M the premises in all future times on the ground that it was too wide and M
inappropriate. In my view, the same considerations are applicable here.
N N
The court must strike a balance between the plaintiffs’ entitlement to quiet
O enjoyment of their property and the defendants’ right under the Estate O
Rules to keep one licensed dog provided that the conditions set out therein
P P
are duly observed. In the circumstances of this case, I think it would be
Q appropriate to make an order that the defendants shall forthwith remove all Q
four unlicensed dogs from House 49.
R R
S (b) Damages S
T T
U U
V V
- 10 -
A A
B B
15. The plaintiffs also seek judgment for two heads of damages,
C
namely, damages for diminution in value of House 45, and damages for C
mental pain.
D D
E 16. First, Ms Chan for the plaintiffs refers to §8.2 of the statement E
of claim in claiming that the plaintiffs have been suffering from a
F F
diminution in the property value of House 45. However, the facts pleaded
G in §8.2 of the statement of claim, that “[N]o prospective purchaser or G
tenant will bother to purchase or rent [House 45]” and “[a]ny prospective
H H
purchaser or tenant will be shocked by the fierce barking”, appear to me
I to give rise to a prospective claim in the future rather than supporting any I
concrete claim of diminution in the market value of House 45 during the
J J
period for which the nuisance persisted in the past. Given that an
K injunction is to be granted, it is rather unlikely that House 45 would suffer K
any diminution in the property value in the future.
L L
M 17. Nonetheless, Ms Chan has also drawn the court’s attention to M
Loke Yuen Jean Tak Alice (supra), §§68-69, in which Marlene Ng J
N N
explained that nuisance may give rise to a loss of amenity to the land, and
O the courts must place a value on such intangible loss even though the same O
“cannot be assessed mathematically”. In my view, the loss of amenity
P P
value of the property constitutes a diminution in value of the property and
Q is clearly recoverable in a case of nuisance. As Lord Lloyd explained in Q
Hunter v Canary Wharf Ltd (supra), 695B-696C:
R R
S “Private nuisances are of three kinds. They are (1) nuisance by S
encroachment on a neighbour’s land; (2) nuisance by direct
T
physical injury to a neighbour’s land; and (3) nuisance by T
interference with a neighbour’s quiet enjoyment of his land. …
U U
V V
- 11 -
A A
B In the case of encroachment the plaintiff may have a remedy by B
way of abatement. In other cases he may be entitled to an
C injunction. But where he claims damages, the measure of C
damages in cases (1) and (2) will be the diminution in the value
of the land. This will usually (though not always) be equal to the
D cost of reinstatement. … D
… Exactly the same should be true of nuisances within class (3).
E E
There is no difference of principle. The effect of smoke from a
neighbouring factory is to reduce the value of the land. There
F may be no diminution in the market value. But there will F
certainly be loss of amenity value so long as the nuisance lasts.”
G G
In the same judgment, Lord Hoffmann explained (at 706B-F)
H H
as follows:
I I
“In the cases of nuisance productive of sensible personal
J discomfort, the action is not for causing discomfort to the person J
but … for causing injury to the land. True it is that the land has
not suffered sensible injury, but its utility has been diminished
K by the existence of the nuisance. It is for an unlawful threat to K
the utility of his land that the possessor or occupier is entitled to
an injunction and it is for the diminution in such utility that he is
L L
entitled to compensation.
…
M It seems that the value of the right to occupy a house which M
smells of pigs must be less than the value of the occupation of an
equivalent house which does not. In the case of a transitory
N nuisance, the capital value of the property will seldom be N
reduced. But the owner or occupier is entitled to compensation
O for the diminution in the amenity value of the property during O
the period for which the nuisance persisted. To some extent this
involves placing a value upon intangibles. But estates agents do
P this all the time. The law of damages is sufficiently flexible to be P
able to do justice in such a case.”
Q Q
18. On the facts as pleaded in the statement of claim, I am
R R
satisfied that, as a result of the defendants’ nuisance, the plaintiffs have
S been deprived of quiet enjoyment of House 45 as a relaxed home for the S
family in the originally tranquil environment of Fairview Park, and have
T T
U U
V V
- 12 -
A A
B B
therefore suffered a loss of amenity value of House 45. I would therefore
C
enter judgment for the plaintiffs for such loss, with damages to be assessed. C
D D
19. Secondly, the plaintiffs seek damages for mental pain against
E the 1st defendant. Upon clarification, Ms Chan confirms that even though E
the plaintiffs have suffered mental distress, their claim under this head is
F F
limited to damages for inconvenience and discomfort. On the facts as
G pleaded in the statement of claim, the dogs’ incessant barking, for which G
the defendants are liable, has resulted in persistent shock, annoyance,
H H
frustration and anxiety on the plaintiffs’ part. I consider that the plaintiffs
I are entitled to damages for inconvenience and discomfort to be assessed on I
such basis, and would enter judgment for the plaintiffs accordingly.
J J
K Disposition K
L L
20. In view of my decision above, I would make an order in terms
M of §§1-4 of the plaintiffs’ summons as amended. Such order shall be M
endorsed with a penal notice in accordance with RDC Order 45, rule 7(4).
N N
O 21. Costs should follow the event. Accordingly, the defendants O
shall pay the plaintiffs’ costs of this action up to the date of this order,
P P
including the costs of the plaintiffs’ summons, to be taxed if not agreed.
Q Q
R R
S ( Kay Seto ) S
Deputy District Judge
T T
U U
V V
- 13 -
A A
B B
Ms Chan Cheuk Tung of ONC Lawyers, for the plaintiffs
C The 1st and 2nd defendants were not represented and did not appear C
D The 3rd defendant appeared in person D
E 1 E
Section 4(1) of the Noise Control Ordinance provides that any person who between the hours of 11 pm
and 7 am, 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. Section 5(3)
F of the Ordinance provides that any person who at any time in any domestic premises or public place F
keeps any animal or bird that makes any noise which is a source of annoyance to any person commits
an offence.
G G
2
Section 20(1) of the Rabies Regulation provides that no person shall keep a dog over the age of
5 months except under and in accordance with a licence granted by the Director of Agriculture,
H Fisheries and Conservation, the Deputy Director of Agriculture, Fisheries and Conservation or an H
Assistant Director of Agriculture, Fisheries and Conservation. A person who contravenes section 20(1)
commits an offence and is liable to a fine of $10,000: see section 20(2) of the Regulation.
I I
3
See §2 of the Affirmation of Service of Tsui Chi Kin Ken dated 8 May 2023.
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
CHEUK CHI WAI AND ANOTHER v. HSU MAN NAI AND OTHERS
A A
B B
DCCJ 4864/2022
C
[2023] HKDC 633 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CIVIL ACTION NO 4864 OF 2022
F F
G ———————— G
BETWEEN
H H
CHEUK CHI WAI (卓志偉) 1st Plaintiff
I LAI PUI FUN DENISE (賴焙壎) 2nd Plaintiff I
J
and J
st
HSU MAN NAI (徐曼妮) 1 Defendant
K K
胡鵬 2nd Defendant
L 楊碧芬 3rd Defendant L
M M
————————
N N
O
Before: Deputy District Judge Kay Seto in Chambers O
Date of Hearing: 12 May 2023
P P
Date of Decision: 12 May 2023
Q Q
——————————
R R
DECISION
S —————————— S
T T
U U
V V
-2-
A A
B B
1. This is an application by the plaintiffs by summons filed on
C
6 February 2023 to enter default judgment against the defendants pursuant C
to Order 19, rule 7 of the Rules of the District Court (Cap 336H) (“RDC”)
D D
in the form of a mandatory injunction and for damages to be assessed.
E E
Background
F F
G 2. These proceedings concern a dispute between neighbours of G
Fairview Park, a residential estate in Yuen Long, New Territories. The
H H
plaintiffs allege that the defendants are liable for nuisance and breaches of
I sections 4 and 5 of the Noise Control Ordinance (Cap 400),1 section 20 of I
the Rabies Regulation (Cap 421A),2 and provisions of the Deed of Mutual
J J
Covenant (“DMC”) and Estate Rules (“Estate Rules”) of Fairview Park.
K K
3. As shown in the plaintiffs’ statement of claim:
L L
M (1) The plaintiffs were and are the registered owners of M
No 45, 6th Street, Section M, Fairview Park (“House
N N
45”).
O O
(2) The 1st defendant was and is the registered owner of
P P
No 49, 6 Street, Section M, Fairview Park (“House
th
Q 49”). She is the mother of the 3rd defendant. The 2nd Q
and 3rd defendants were and are occupiers of House 49.
R R
S (3) Clause 5(c) of the Second Schedule to the DMC S
provides that each owner shall covenant “not to do or
T T
permit or suffer to be done anything in any sub-section
U U
V V
-3-
A A
B B
or unit which may be a nuisance or cause an annoyance
C
to the owners or occupiers of other sub-sections or C
units”.
D D
E (4) Clause 15 of the Second Schedule to the DMC provides E
that each owner shall covenant “to observe and perform
F F
all the covenants conditions and provisions of this Deed
G and the Estate Rules”. G
H H
(5) Chapter B of the Estate Rules provides that residents of
I Fairview Park may keep one licensed dog, provided I
that the following conditions, among other things, are
J J
observed:
K K
(a) “Dogs must be chained in kennels at rear garden
L L
or kept inside houses if they have the propensity
M to attack or bark at passer-by” (Rule 6.1.3). M
N N
(b) “Dogs must not be allowed to bark constantly,
O causing continuous nuisance to neighbours in O
the tranquil environment of Fairview Park”
P P
(Rule 6.1.4).
Q Q
(c) “No dog or pet is allowed to foul any part of the
R R
common areas in the Estate. They should be
S trained accordingly” (Rule 6.1.6). S
T T
U U
V V
-4-
A A
B B
(6) In contravention of section 20 of the Regulation, the
C
DMC and the Estate Rules, four unlicensed dogs have C
nd rd
been kept by the 2 and 3 defendants in House 49
D D
since 2018 and three of these dogs constantly and
E fiercely bark throughout the day and during the night E
nd rd
time. Further, the 2 and 3 defendants have allowed
F F
the four dogs to urinate at the sidewalk of the garden of
G House 49 and the water cleansing the urine to flow to G
the street, which is a common area of Fairview Park.
H H
I (7) Despite repeated demands by the plaintiffs and the I
management company of Fairview Park, the defendants
J J
have refused to stop the nuisance and fouling of
K common areas caused by the four dogs kept in House K
49.
L L
M (8) As a result of the defendants’ nuisance and fouling of M
the common areas, the plaintiffs can no longer enjoy
N N
quite enjoyment of House 45, and have experienced
O shock, annoyance, frustration and anxiety on a daily O
basis.
P P
Q 4. The plaintiffs filed a specially endorsed writ on 12 December Q
2022 and duly served the same on the defendants on 14 December 2022 by
R R
insertion through the letter box of House 49 pursuant to Order 10, rule
S 1(2)(b) of the RDC. The defendants failed to give any notice of intention S
to defend within time. By a letter dated 28 December 2022 to the court
T T
registry, the defendants requested for an adjournment of the proceedings
U U
V V
-5-
A A
B B
on the ground that all of them had contracted COVID-19. On 13 January
C
2023, Master Timon Shum directed the defendants to issue a summons in C
respect of their intended application for adjournment, but no such summons
D D
has ever been issued by the defendants. On the same day, the plaintiffs
E filed and served on the defendants a notice of intention to enter judgment. E
F F
5. Still, the defendants failed to file and serve their defence.
G Accordingly, on 6 February 2023, the plaintiffs issued the summons for G
default judgment as I mentioned at the outset. I am satisfied that the
H H
summons was duly served on the defendants.3 I therefore proceeded with
I this hearing in the defendants’ absence. During the hearing, the 3rd I
defendant appeared, upon which I explained the court procedures to her
J J
and allowed her to make oral submissions in relation to the present
K summons. K
L L
The relevant legal principles
M M
6. The relevant legal principles on granting default judgment
N N
under RDC Order 19, rule 7 are well established and may be summarised
O as follows: O
P P
(1) In determining whether to grant default judgment, the
Q court must consider the application according to the Q
pleadings alone, and decide whether the plaintiffs
R R
appear to be entitled to judgment on their statement of
S claim: Seto Yim King v Soo Hooyet Dew [2019] HKCFI S
2640, §10.
T T
U U
V V
-6-
A A
B B
(2) The court cannot receive any evidence, and it is thus
C
not necessary for the plaintiffs to prove their case by C
evidence: Times Square Limited v Lee Kwun Kit
D D
trading as JL Music and Anor [2020] HKCFI 438,
E §14(3). E
F F
(3) Notwithstanding the wording in Order 19, rule 7(1), the
G court’s power to grant default judgment is discretionary G
and not mandatory: Times Square Limited (supra),
H H
§14(4).
I I
7. In relation to the plaintiffs’ claim for injunctive relief, it is
J J
well established that the court has jurisdiction to grant permanent
K injunctions in default judgment applications: Biostime International K
Investment Ltd v France Heson Paper (Hong Kong) Co Ltd [2015] 2
L L
HKLRD 658, §§12-13; Times Square Limited (supra), §14(5).
M M
8. With these principles in mind, I turn to the facts of the present
N N
case.
O O
Discussion
P P
Q 9. First and foremost, I take note that, even now, nothing has Q
been filed on behalf of the defendants, and although the 3rd defendant has
R R
appeared in court this morning, there is no indication in her oral
S submissions that the defendants have any substantive defence on the S
merits.
T T
U U
V V
-7-
A A
B B
10. I have had regard to the explanation of the principles and the
C
relevant considerations set out by the Court of Appeal in The Decurion C
[2012] 1 HKLRD 1063. Having regard to those principles and to all the
D D
circumstances of this case, I consider that my discretion should be
E exercised in favour of entering judgment for the plaintiffs for the following E
reasons.
F F
G
(a) Injunctive relief G
H H
11. The availability of an injunction has been said to be a
I
touchstone of nuisance: Clerk and Lindsell on Torts (23rd ed, 2020), §19- I
32. As Lord Hoffmann explained in Hunter v Canary Wharf Ltd [1997]
J J
AC 655, 706C, nuisance which is productive of sensible personal
K discomfort constitutes an unlawful threat to the utility of one’s land such K
that the possessor or occupier is entitled to an injunction.
L L
M 12. On the facts as pleaded, I am satisfied that the plaintiffs are M
entitled to a mandatory injunction requiring the defendants to forthwith
N N
remove all four unlicensed dogs from House 49 for the following reasons:
O O
(1) The plaintiffs are entitled to have quiet enjoyment of
P P
House 45. The DMC and the Estate Rules expressly
Q provide that no nuisance shall be caused to neighbours Q
in the tranquil environment of Fairview Park.
R R
S (2) The 2nd and 3rd defendants are in breach of section 20 S
of the Rabies Regulation and Chapter B of the Estate
T T
Rules for keeping four unlicensed dogs in House 49.
U U
V V
-8-
A A
B B
C
(3) Noise caused by dogs barking constantly clearly C
constitutes actionable nuisance: Clerk and Lindsell on
D D
Torts (supra), §19-18. By permitting the dogs to bark
E constantly and fiercely day and night, the defendants E
have caused continuous nuisance to the plaintiffs, and
F F
are thus in breach of sections 4(1) and 5(3) of the Noise
G Control Ordinance and Chapter B of the Estate Rules. G
Further, the 1st defendant, being the registered owner of
H H
House 49 and thus a party to the DMC, is in breach of
I Clauses 5(c) and 15 of the Second Schedule to the I
DMC for her failure to observe and perform the
J J
provisions of the DMC and those of the Estate Rules.
K K
(4) By causing or allowing the water cleansing the dogs’
L L
foul to flow into the common areas of Fairview Park,
M the defendants have caused unreasonable annoyance to M
the plaintiffs, which constitutes nuisance at common
N N
law: Clerk and Lindsell on Torts (supra), §19-18.
O Further, the 1st defendant is in breach of Clauses 5(c) O
and 15 of the Second Schedule to the DMC for
P P
permitting such acts to be done which cause an
Q annoyance to the plaintiffs. Q
R R
(5) Without an injunction ordering the defendants to
S remove the four dogs from House 49, it is more likely S
than not that the defendants’ nuisance and breaches of
T T
statutory provisions, the DMC and the Estate Rules
U U
V V
-9-
A A
B B
would persist, further depriving the plaintiffs of quiet
C
enjoyment of their property. C
D D
13. As to the terms of the injunction, the plaintiffs seek an order
E that the defendants remove permanently all the dogs in House 49 from the E
property. It appears to me that the plaintiffs’ proposed wording may be
F F
construed as to restrain the defendants from keeping any dog in House 49
G in the future. This would potentially amount to a perpetual injunction, G
which is plainly too wide in scope and is inconsistent with Chapter B of
H H
the Estate Rules which provides that residents of Fairview Park may keep
I one licensed dog. I
J J
14. In The Incorporated Owners of Nos 3-3E Wang Fung Terrace
K v Law Chi Wing and Anor, DCCJ 230 of 2006 (28 March 2006), §68, K
HH Judge Marlene Ng (as she then was) refused to grant a perpetual
L L
injunction to restrain one of the defendants therein from keeping dogs at
M the premises in all future times on the ground that it was too wide and M
inappropriate. In my view, the same considerations are applicable here.
N N
The court must strike a balance between the plaintiffs’ entitlement to quiet
O enjoyment of their property and the defendants’ right under the Estate O
Rules to keep one licensed dog provided that the conditions set out therein
P P
are duly observed. In the circumstances of this case, I think it would be
Q appropriate to make an order that the defendants shall forthwith remove all Q
four unlicensed dogs from House 49.
R R
S (b) Damages S
T T
U U
V V
- 10 -
A A
B B
15. The plaintiffs also seek judgment for two heads of damages,
C
namely, damages for diminution in value of House 45, and damages for C
mental pain.
D D
E 16. First, Ms Chan for the plaintiffs refers to §8.2 of the statement E
of claim in claiming that the plaintiffs have been suffering from a
F F
diminution in the property value of House 45. However, the facts pleaded
G in §8.2 of the statement of claim, that “[N]o prospective purchaser or G
tenant will bother to purchase or rent [House 45]” and “[a]ny prospective
H H
purchaser or tenant will be shocked by the fierce barking”, appear to me
I to give rise to a prospective claim in the future rather than supporting any I
concrete claim of diminution in the market value of House 45 during the
J J
period for which the nuisance persisted in the past. Given that an
K injunction is to be granted, it is rather unlikely that House 45 would suffer K
any diminution in the property value in the future.
L L
M 17. Nonetheless, Ms Chan has also drawn the court’s attention to M
Loke Yuen Jean Tak Alice (supra), §§68-69, in which Marlene Ng J
N N
explained that nuisance may give rise to a loss of amenity to the land, and
O the courts must place a value on such intangible loss even though the same O
“cannot be assessed mathematically”. In my view, the loss of amenity
P P
value of the property constitutes a diminution in value of the property and
Q is clearly recoverable in a case of nuisance. As Lord Lloyd explained in Q
Hunter v Canary Wharf Ltd (supra), 695B-696C:
R R
S “Private nuisances are of three kinds. They are (1) nuisance by S
encroachment on a neighbour’s land; (2) nuisance by direct
T
physical injury to a neighbour’s land; and (3) nuisance by T
interference with a neighbour’s quiet enjoyment of his land. …
U U
V V
- 11 -
A A
B In the case of encroachment the plaintiff may have a remedy by B
way of abatement. In other cases he may be entitled to an
C injunction. But where he claims damages, the measure of C
damages in cases (1) and (2) will be the diminution in the value
of the land. This will usually (though not always) be equal to the
D cost of reinstatement. … D
… Exactly the same should be true of nuisances within class (3).
E E
There is no difference of principle. The effect of smoke from a
neighbouring factory is to reduce the value of the land. There
F may be no diminution in the market value. But there will F
certainly be loss of amenity value so long as the nuisance lasts.”
G G
In the same judgment, Lord Hoffmann explained (at 706B-F)
H H
as follows:
I I
“In the cases of nuisance productive of sensible personal
J discomfort, the action is not for causing discomfort to the person J
but … for causing injury to the land. True it is that the land has
not suffered sensible injury, but its utility has been diminished
K by the existence of the nuisance. It is for an unlawful threat to K
the utility of his land that the possessor or occupier is entitled to
an injunction and it is for the diminution in such utility that he is
L L
entitled to compensation.
…
M It seems that the value of the right to occupy a house which M
smells of pigs must be less than the value of the occupation of an
equivalent house which does not. In the case of a transitory
N nuisance, the capital value of the property will seldom be N
reduced. But the owner or occupier is entitled to compensation
O for the diminution in the amenity value of the property during O
the period for which the nuisance persisted. To some extent this
involves placing a value upon intangibles. But estates agents do
P this all the time. The law of damages is sufficiently flexible to be P
able to do justice in such a case.”
Q Q
18. On the facts as pleaded in the statement of claim, I am
R R
satisfied that, as a result of the defendants’ nuisance, the plaintiffs have
S been deprived of quiet enjoyment of House 45 as a relaxed home for the S
family in the originally tranquil environment of Fairview Park, and have
T T
U U
V V
- 12 -
A A
B B
therefore suffered a loss of amenity value of House 45. I would therefore
C
enter judgment for the plaintiffs for such loss, with damages to be assessed. C
D D
19. Secondly, the plaintiffs seek damages for mental pain against
E the 1st defendant. Upon clarification, Ms Chan confirms that even though E
the plaintiffs have suffered mental distress, their claim under this head is
F F
limited to damages for inconvenience and discomfort. On the facts as
G pleaded in the statement of claim, the dogs’ incessant barking, for which G
the defendants are liable, has resulted in persistent shock, annoyance,
H H
frustration and anxiety on the plaintiffs’ part. I consider that the plaintiffs
I are entitled to damages for inconvenience and discomfort to be assessed on I
such basis, and would enter judgment for the plaintiffs accordingly.
J J
K Disposition K
L L
20. In view of my decision above, I would make an order in terms
M of §§1-4 of the plaintiffs’ summons as amended. Such order shall be M
endorsed with a penal notice in accordance with RDC Order 45, rule 7(4).
N N
O 21. Costs should follow the event. Accordingly, the defendants O
shall pay the plaintiffs’ costs of this action up to the date of this order,
P P
including the costs of the plaintiffs’ summons, to be taxed if not agreed.
Q Q
R R
S ( Kay Seto ) S
Deputy District Judge
T T
U U
V V
- 13 -
A A
B B
Ms Chan Cheuk Tung of ONC Lawyers, for the plaintiffs
C The 1st and 2nd defendants were not represented and did not appear C
D The 3rd defendant appeared in person D
E 1 E
Section 4(1) of the Noise Control Ordinance provides that any person who between the hours of 11 pm
and 7 am, 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. Section 5(3)
F of the Ordinance provides that any person who at any time in any domestic premises or public place F
keeps any animal or bird that makes any noise which is a source of annoyance to any person commits
an offence.
G G
2
Section 20(1) of the Rabies Regulation provides that no person shall keep a dog over the age of
5 months except under and in accordance with a licence granted by the Director of Agriculture,
H Fisheries and Conservation, the Deputy Director of Agriculture, Fisheries and Conservation or an H
Assistant Director of Agriculture, Fisheries and Conservation. A person who contravenes section 20(1)
commits an offence and is liable to a fine of $10,000: see section 20(2) of the Regulation.
I I
3
See §2 of the Affirmation of Service of Tsui Chi Kin Ken dated 8 May 2023.
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V