Time Square Ltd v. Lee Kwun Kit t/a Jl Music and Another

HCA 2244/2018

[2018] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2244 OF 2018

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DECISION

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The hearing

1.This is the first hearing of the inter partes summons dated 24 September 2018 (“Summons”) taken out by the plaintiff.

2.By the Summons, the plaintiff is seeking:

(a)   an order for substituted service of the Writ of Summons, the Summons and all subsequent orders against the 2^nd defendants;

(b)   an interlocutory injunction against the 1^st and 2^nd defendants restraining them (whether by themselves, servants or agents) from:

(i)   occupying or remaining at the Open Piazza[1] of the Times Square by busking or any other form of street performance;

(ii)   causing, placing or leaving obstruction(s) at the Open Piazza in connection with the carrying out of any such performances;

(iii)   disturbing, interrupting or otherwise obstructing any servant, employee or person employed by the plaintiff in the proper execution of their duties.

3.In so far as the application against the 1^stdefendant is concerned, the parties have reached consensus on a set of directions, to the effect that upon the 1^stdefendant’s undertaking not to do the acts set out in (i) to (iii) above, the application be adjourned to a date to be fixed for full arguments, with directions on the filing of further evidence in the meantime. I give those directions.  The only modification I have suggested is that those act caught by undertaking (iii) should be confined to those acts in connection with undertakings (i) and (ii).  Parties agree to that.

Substituted service in respect of the 2^nd defendants

4.The Court has power to grant an injunction against a defendant described not by name, but by reference to his conduct provided that the description is sufficiently certain to identify those who are necessarily included and excludes those who are not: see Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85, at paragraph 54 per Au J, and Bloomsbury Publishing plc v News Group Ltd [2003] 1 WLR 1633 at paragraphs 15 – 22 per Sir Andrew Morritt VC.

5.I have considered the description of the 2^nd defendants.  On the Writ they are described as “Persons unlawfully occupying or remaining at the Open Piazza of Times Square, 1 Matheson Street, Causeway Bay by busking or any other form of street performance, or persons who cause,place or leave obstruction(s) at the Open Piazza in connection with the carrying out of such performances”.  I am satisfied that the description is sufficiently certain.  Given the fact that the 2^nddefendants is a class of persons not described by names, it is obvious that it is impracticable to serve any process or court document on them in the manner prescribed by the Rules of the High Court.  I am also satisfied that the proposed means ofsubstituted service (namely (1) in so far as the Writ and the Order permitting substituted service are concerned, by (a) fixing the same securely at a conspicuous place at the Open Piazza, (b) by advertisement in one local Chinese newspaper and one local English newspaper; and (c) by posting the same advertisements on the Website of Times Square; (2) in so far as this Summons and all subsequent orders are concerned (including those which the 1^stdefendant is required to serve upon the 2^nddefendants), by (a) fixing those court documents securely at a conspicuous place at the Open Piazza; and (b) posting notices of the same on the website of Times Square) are appropriate and adequate.  I grant the Order sought as amended.

6.I however make clear that this Order only permits substituted service of the Writ, the Summons and all subsequent documents which require service.  No injunction against the 2^nd defendants has been granted.  That remains to be considered as and when any application for one is made (if one is made).

Mr Jin Pao SC, instructed by Mayer Brown, for the plaintiff

Mr Ernest Ng and Ms Tira Mok Yin Ting, instructed by Bond Ng, for the 1^st defendant

The 2^nd defendants was not represented and did not appear