YIP ROBERT MOON LAM AND ANOTHER v. CHUNG CHI HUNG

bjbj HCA 3968/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 3968 OF 2002 ____________ BETWEEN YIP ROBERT MOON LAM 1st Plaintiff CHEUNG LAI YING MAY 2nd Plaintiff and CHUNG CHI HUNG Defendant ____________ Coram: Ms Recorder J Leong, SC in Chambers Date of Hearing: 27 December 2002 Date of Ruling: 27 December 2002 ___________ R U L I N G ___________ This is an application by the plaintiffs for the continuation of an order made by Wright DJ on 21 October this year and continued by Poon DJ on 25 October. The brief history of the matter is that the defendant carried out certain work on the premises of the plaintiffs in the latter part of 1999. It is common ground that the defendant has not received payment in respect of the work done. It is disputed (a) in what capacity the defendant carried out the work, that is, as contractor or subcontractor or in some other capacity; (b) whether the work was defective; (c) what amount is payable in respect of the work; and (d) whether the plaintiffs are liable to make payment to the defendant or to a general contractor employed by the plaintiffs in relation to other work on the premises. It appears to be common ground that since about March 2000, the defendant has been demanding payment by the plaintiffs in respect of work carried out by him in the premises. Those demands were made by telephone and in person, both at the plaintiffs premises and at the 1st plaintiff s place of work. The plaintiffs allege that the demands were accompanied by menacing and threatening behaviour by the defendant and/or other persons. The defendant contends that no threats or inappropriate behaviour was ever displayed in the course of the demands for payment. At one stage, the police were summoned on 4 October this year but no further action was taken by them upon the decision of the parties to pursue their differences privately. The plaintiffs subsequently instructed solicitors who wrote to the defendant on several occasions between December 2001 and October this year accusing the defendant of harassing the plaintiffs and calling upon him to cease and desist. There is an issue as to whether the defendant received some or all of the letters. On 21 October this year, the plaintiffs issued proceedings against the defendant claiming, inter alia, an injunction to restrain the defendant from intimidating, molesting, harassing, threatening, pestering or interfering with the plaintiffs, their family and the 1st plaintiff s staff and colleagues at his place of work or attempting to do so, communicating with the plaintiffs or any co-worker, including communication by oral, telephonic or electronic means or in writing, coming or remaining within 250 metres of the plaintiffs premises where they live with their children or entering the 1st plaintiff s place of work, damages for nuisance and damages for harassment. On the same day, 21 October, an interim injunction in terms was granted ex parte by Deputy Judge Wright. On 25 October, the order was continued inter partes by Deputy Judge Poon until the disposal of the inter partes application or further order. The plaintiffs now seek the continuation of the order until trial of the action or until further order. The defendant seeks the discharge of the injunction. The plaintiffs argue that the continuation of the injunction is necessary for the protection of the plaintiffs and their family and colleagues and to preserve the status quo pending hearing of the action. They say that no detriment would accrue to the defendant by the order sought and that, in any event, they are prepared to continue their undertaking as to damages. The defendant seeks the uplifting of the injunction on the basis that (a) it will prevent the full and fair trial of the action; (b) it will prevent the defendant from bringing any proceedings to recover the amount alleged to be due and owing to him by the plaintiffs; (c) it will impede the defendant s freedom of movement and basic human rights and may, in addition, act as a restraint upon trade; (d) that there is no basis in evidence or in law for the imposition of any injunction against the defendant; and (e) that the plaintiffs claims are fictitious, vexatious and an abuse of process and that they are therefore not entitled to any equitable relief. The factual issues are completely at large and no finding of fact can or should be made at this interlocutory stage, a fortiori, upon conflicting affidavit evidence. It appears to be common ground and, indeed, is apparent from the affidavits that the parties are unable to communicate with each other in any reasonable form. Their contact to date appears to be disputed as to virtually all particulars, both as to content and form. The plaintiffs have said that they fear for their safety and that of their children and colleagues. The defendant has said that he has not behaved in any untoward manner and that he will not do so in future. The action is proceeding to trial in the normal way and there is nothing to indicate that this course has been in any way impeded or prevented by the orders made on the 20 and 25 October this year. The defendant contends that paragraph 1(b) of the order, in effect, prevents him from in any way communicating with the plaintiffs and that this has prevented and continues to prevent him from lodging any claim to recover moneys due to him by the plaintiffs. I do read paragraph 1(b) as indicating or demonstrating that, but for the sake of clarity, I see no reason why any such perception should not be covered by the addition of the words save for communications between the parties respective solicitors at the end of paragraph 1(b). Both parties say that they are anxious to have the issue as to payment resolved by legal proceedings, and I see no reason why such proceedings should not be commenced immediately. I confess to not understanding the defendant s contention that the injunction impedes his freedom of movement, basic human rights and right to trade. I can see no merit in this argument and trust that now that the defendant has instructed solicitors and counsel that he will be disavowed of this belief. I am unable to reach any decision on the merits of the parties respective cases at this stage. The question of whether the plaintiff s claims are fictitious, vexatious or an abuse of process is one for the trial judge after he has heard all the evidence. There is evidence, albeit disputed, as to the plaintiffs entitlement to equitable protection. I am not satisfied that the defendant has shown either that such protection should be withdrawn or that he would be disadvantaged by its continuation. He offers no undertaking in terms. He says he has no connection with or responsibility for the actions of various named individuals whom the plaintiffs say have threatened them. The defendant suggests that the injunction is too wide in that extending it to his servants or agents may encompass persons over whom he has no control. This is not an argument that I follow since any question as to whether a particular individual has acted as the defendant s servant or agent must be a question of fact that can be argued if the issue arises. As to the question of restraint upon movement being a restraint upon trade, that seems to be well catered for by the provision as to the right to apply for variation at any time. In the circumstances, I am satisfied that this is a proper case for the order of 25 October, (a) to be varied in paragraph 1(b) by the addition of the words save for communications between the parties respective solicitors ; and (b) subject to that amendment to be continued until further order. (Discussion re directions) COURT: Discovery and exchange of documents within 21 days. Exchange of witness statements within 21 days thereafter. (Discussion re leave to set down trial date) (Discussion re costs) COURT: I think it would be appropriate for costs to be costs in the cause. (J Leong) Recorder of the Court of First Instance High Court Mr Jose A Maurellet, instructed by Messrs Sit, Fung, 1udk 1udk J K L M N O P Q R S T U V i$&`G BqfC4q& setup hca.dot setup Microsoft Word 9.0 zmib Judiciary Hong Kong Title Microsoft Word Document MSWordDoc Word.Document.8