Airport Authority v. Persons Unlawfully and Wilfully Obstructing or Interfering With the Proper Use of the Hong Kong International Airport

HCA 1471/2019

[2019] HKCFI 2104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1471 OF 2019

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BETWEEN

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Before: Hon Wilson Chan J in Chambers (Open to Public)

Date of Hearing: 23 August 2019

Date of Decision: 23 August 2019

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D E C I S I O N

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1.This is the hearing of the plaintiff’s summons dated 15 August 2019 for continuation of the ex parte injunction order (“Order”) granted by Chow J on 13 August 2019 concerning the recent events at the Hong Kong International Airport (“Airport”).

2.There is also before the court the plaintiff’s summons taken out on 21 August 2019, inter alia: –

(1)  for leave to amend paragraph 5 of the Order to mirror the wording used in Chiu Luen Public Light Bus Co Ltd v Persons Unlawfully Occupying or Remaining on the Public Highway & Ors, HCMP 3028/2014 (unrep., 21 November 2014) at paragraph 11, which does not materially impact on the substance of the Order; and

(2)  for leave to execute the Order (as varied above) on a Sunday as required under Order 65, rule 10 of the Rules of the High Court, given the past events leading to the making of the Order showed that disturbances at the Airport may well take place over weekends.

3.The relevant background facts are well-known and are set out in the 1^st Affirmation of Vivian Cheung filed herein by the plaintiff on 14 August 2019.

4.On 21 August 2019, the plaintiff filed the 2^nd Affirmation of Vivian Cheung to provide the court with further information and update the court on the development of the case after the ex parte hearing.

5.As explained in the said 2^nd Affirmation of Vivian Cheung: –

(1)  There were serious incidents at the Airport in the late hours of 13 August 2019 (last Tuesday) in which the protestors clashed with the Police and obstructed timely access by paramedics to attend to a man who was injured by the protestors.  The situation had escalated beyond obstructions to the check-in area, with the protestors spilling out into the entrances to the Airport terminal building and preventing passengers from getting through the landside areas.  The disruption to the operation of the Airport and the clashes between different parties prompted further violence. The large number of protestors caused obstruction to the management of the Airport and aggravated threats to public order and safety by preventing quick access of emergency vehicles and police service response.

(2)  In view of the above events, the plaintiff considered it necessary for the management and operation of the Airport to implement an enhanced access control plan on the following day by extending the Access Control Area from the check-in counters to various access points at the Airport terminal building, allowing access by travellers only.  This is pursuant to the plaintiff’s powers under section 9 of the Airport Authority Bylaw (Cap 483A) and is also permissible under paragraph 7 of the Order and justifiable in light of the events on 13 August 2019, which rendered the plaintiff unable to maintain the smooth running of the Airport or safeguard the convenience and safety of persons using the Airport.  Any future disturbance in the scale of what had happened on 13 August 2019 would further disrupt flying schedules and cause operations to come to a standstill.  The enhanced access control plan was formulated after discussions and input from various stakeholders as well as the plaintiff’s risk assessment of widespread action throughout the Airport.

(3)  Following the implementation of the enhanced Access Control Area, the plaintiff issued a press release and posted notices of the enhanced access control points at the Airport terminal with maps at conspicuous locations of the Airport to give adequate notice to persons using or intending to use the Airport.

(4)  Significantly, while disturbances at the Airport have seemingly subsided after the grant of the Order, there is evidence of continuing threats to the Airport in the coming weekend, including repeated calls in the social media to obstruct access control points to prevent passengers from entering the Airport.   

6.In such circumstances, the plaintiff submits there is plainly the need to continue the Order.

7.There is no indication that the Commissioner of Police has issued notices of non-objection under section 11 of the Public Order Ordinance (Cap 245) in respect of any of the protests (or any future plans of protests) which would render them lawful. 

8.So far no person has approached the plaintiff’s solicitors to indicate an intention to oppose the Order.

9.From the papers, I am satisfied that there is plainly a serious issue to be tried that the defendants by their conduct have breached the Airport Authority Bylaw, and/or have committed the tort of public nuisance.

10.Further, I am satisfied that the damage caused by the defendants’ obstruction to the proper operation of the Airport (including damage to the reputation of the Airport and Hong Kong) is clearly unquantifiable and could not be remedied by an award of damages.

11.The balance of convenience is strongly in favour of continuing the Order.  The smooth running of the Airport is of crucial significance to Hong Kong, in particular the security and safety of its citizens and travellers, its commercial interests, as well as its international reputation.

12.Given the continuing threat of disturbances at the Airport, I have no hesitation in continuing the Order (as varied) to maintain the status quo until trial or further order of the court.

13.To achieve that result, I make an order in terms of the plaintiff’s summons dated 21 August 2019 seeking leave to amend the summons dated 15 August 2019.  Further, I make an order in terms of paragraphs 1, 1A, 1B, 2 and 3 of the Amended Summons, as amended, namely:

“1.  The Injunction Order of the Honourable Mr Justice Chow dated 13 August 2019 be varied by adding the underlined words below to paragraph 5 of the Injunction Order as follows:

“Without prejudice to the provisions of the Police Force Ordinance (Cap 232) (including s 51 and s 52 thereof), Aany person so arrested by the Police shall be brought before the Court, under lawful arrest or legal processes, as soon as practicable for further directions.”

1A.  The Injunction Order of the Honourable Mr Justice Chow dated 13 August 2019 as varied by paragraph 1 above (“the Varied Order”) be continued until further order;

1B.  Leave to the Plaintiff to execute the Varied Order within Hong Kong on a Sunday;

2.  Leave to the Plaintiff to serve this Order and the Varied Order on the Defendants by way of substituted service by:-

(a)  fixing a copy of this Order and the Varied Order securely in conspicuous places at the Hong Kong International Airport;

(b)  posting a copy of this Order and the Varied Order on the website www.hongkongairport.com; and

(c)  publishing a copy of this Order and the Varied Order in one English newspaper and one Chinese newspaper in Hong Kong for 1 day; and

3.  Costs of this application be reserved.”

Mr Victor Dawes, SC leading Mr Jonathan Chang and Ms Esther Mak, instructed by Messrs Hogan Lovells, for the plaintiff

The defendant was unrepresented and absent