Secretary for Justice v. Persons Unlawfully and Wilfully Obstructing Occupying or Remaining on or Hindering or Preventing the Passing or Repassing of the Public Highway, Namely the Portion of Public Roads Shaded in Red on the Plans in Annex 1 To the Writ of Summons Herein Enclosing the Disciplined Services Quarters and Police Married Quarters Listed in Annex 2 To the Writ of Summons Herein and Anothers

HCA 1886/2019

[2019] HKCFI 2636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1886 OF 2019

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DECISION

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INTRODUCTION

1.This is the return date of an ex parte injunction order (“the Order”) granted by this court on 14 October 2019 in the following terms:

“1 The 1^st Defendants and each of them whether acting on his/her own or together with other person(s) be restrained from doing any of the following acts:-

(a) unlawfully and willfully obstructing occupying or remaining on or hindering or preventing the passing or repassing of any road or passageway, whether vehicular or pedestrian, in the portion of public roads shaded in red on the plans attached to this Order as ‘Annex 1’ (‘Quarters Areas’) enclosing or being adjacent to any Disciplined Services Quarters (‘DSQ’) and Police Married Quarters (‘PMQ’) (collectively ‘Quarters’) listed in ‘Annex 2’ to this Order;

(b) inciting and/or aiding and/or abetting any person to do any of the acts identified in (a) above.

2 The 2^nd Defendants and each of them whether acting on his/her own or together with other person(s) be restrained from doing any of the following acts:-

(a) damaging or defacing any part of the Quarters including but not limited to its doors, gates, windows, external walls and closed circuit television cameras, whether by painting, writing, drawing or affixing any word or character thereat or otherwise howsoever;

(b) entering any part of the Quarters without prior authorisation by the Plaintiff or any resident thereat;

(c) interfering with the use and enjoyment of the Quarters by the residents thereat including by not limited to doing any of the following acts:-

(1) obstructing or preventing access to any of the entrances of the Quarters; and

(2) projecting light of such intensity and/or frequency that is capable of reducing a viewer’s ability to see or producing any sensation of discomfort to any viewer onto any part of the Quarters by the use of laser source light, spot light, flash light or any other light emitting tool or equipment, whether directly or through a reflector;

(d) inciting and/or aiding and/or abetting any person to do any of the acts identified in (a), (b) and/or (c) above.”

2.Pursuant to paragraph 7 of the Order, the Writ, the Order and the Inter Partes Summons herein have been served on the Defendants by way of substituted service by –

(a) fixing a copy of the Writ, Order and Inter Partes Summons in a conspicuous place in each of the Quarters; and

(b) publishing a copy of the Writ, Order and Inter Partes Summons on the webpages of the Police and the Government of the HKSAR respectively.

BASIC FACTS

3.The Secretary for Justice is the plaintiff in this action, and sues:

(1) on behalf of the public, the 1^st Defendants for public nuisance;

(2) on behalf of the Government as the owner and landlord of the land on which the Quarters stand, the 2^nd Defendants for trespass, damage to property and private nuisance.

4.The background facts leading to the recent anti-police actions and sentiment by some members of the public are well known, but do not have any direct relevance to the unlawful actions complained of by the Secretary for Justice in this action.  The evidence before the court, briefly stated, shows that:

(1) The Quarters are occupied not only by police officers and other members of other disciplined forces, but also by their families including elderly people and young children.

(2) Since August this year, there had been repeated instances where large crowds (on occasions of over 100 people) targeting police officers and their families surrounded different Quarters.  They caused serious obstruction of the nearby streets, blocked the entrances to the Quarters, and caused extensive damage to the Quarters and harm, fear and serious inconvenience to the occupants of the Quarters.

(3) The conduct of the Defendants complained of included the following –

(a) The gathering and assembly of large groups of protestors outside or in the vicinity of the Quarters, either creating noise (by chanting slogans or singing or otherwise), or doing other things (such as burning joss sticks outside, and throwing joss papers at or into, the Quarters) which caused disturbance, fear and mental distress to the occupants of the Quarters.

(b) The blockage of pedestrian and vehicular entrances/exits of the Quarters by a range of articles and objects.

(c) The physical damage or destruction of the facilities of the Quarters by a range of acts including but not limited to throwing or flinging articles or objects at such facilities.

(d) The defacement of or drawing of graffiti upon (often involving offensive or intimidating words) the outer walls, gates, etc and sometimes even within the perimeters of the Quarters.

(e) The projection of light, in particular laser beams, of such intensity towards the units of the Quarters that was capable of causing discomfort to the occupants of the Quarters, especially late at night when such projection of light would cause heightened disturbance to the occupants.

(f) Unauthorised entries into the Quarters.

Full details of the acts complained of are set out in the supporting affirmation filed by the Secretary for Justice which it is not necessary to repeat in this decision.

(4) The Quarters affected included Wong Tai Sin DSQ, Yuen Long PMQ, Lai King DSQ, Chai Wan PMQ, Kwai Fuk DSQ, Kwai Ying DSQ, Wu Hong PMQ, Ko Cheung Court DSQ, Yau Mei Court DSQ, Sheung Shui PMQ and West Kowloon DSQ.

(5) The violence against the occupants of the Quarters and damage done to the Quarters had been escalating and reached an alarming level in recent weeks.  For instance, on 5 October 2019, 6 petrol bombs, 2 paint bombs, 2 acid bombs and other hard objects were thrown into Sheung Shui PMQ.

(6) The obstruction and interference by the protestors caused constant harassment and mental distress to the occupants of the Quarters and seriously affected their use and enjoyment of their premises, endangered their personal safety, and put the neighbouring residential buildings and residents at risk.  Some of the occupants of the Quarters have demanded to be relocated, while those who remain have to continue to suffer the threat of violence.

(7) The unlawful acts by the Defendants were clearly calculated to cause harassment, distress, harm and injury to the occupants of the Quarters.

(8) Although there have been no further disturbances at, or damage, to the Quarters since the grant of the Order on 14 October 2019, violent actions and/or threats of violent actions against the police have continued unabated.  In particular –

(a) On 14 October 2019, at around 09:15 am, two carton boxes containing 41 bottles of suspected petrol and a trash can containing 18 bottles of suspected petrol were found on the grass lawn outside CCC Rotary Secondary School in Wong Tai Sin, which is within 10 minutes’ walk from Wong Tai Sin DSQ.

(b) On 20 October 2019, at around 6:00 pm, a police light goods vehicle was jammed outside the YHA Mei Ho House Youth Hostel, Tai Po Road, as the road was blocked by some protestors.  Over 50 protestors with weapons such as metal poles and petrol bombs dashed at the police vehicle and caused damage to it.  During the incident, police officers used tear gas to disperse the protestors but they did not leave the scene until the arrival of police reinforcement.

(c) On 20 October 2019, at around 3:53 pm, while a police officer was performing station defence duty at Tsim Sha Tsui Police Station, he caught fire as a result of petrol bombs thrown into the police station by protestors outside the station.

(9) There is, at the moment, no end in sight to the anti-police and anti-Government actions and sentiment by the protestors.

5.The Secretary for Justice now seeks a continuation of the Order until trial or further order of the court.  None of the Defendants, or any other persons who may be interested in this matter, has appeared this morning to resist the application.

DISCUSSION

6.The Secretary for Justice does not know the exact identities of the Defendants, and have identified them in this action by appropriate descriptions, in accordance with the practice sanctioned by the Court of Appeal in Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714.

7.The applicable principles for the grant of interlocutory injunction are well settled.  In Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41, the following was stated by G Lam J at [14] of his judgment:

“The Court has to see whether there are serious issues to be tried, whether damages would be an adequate remedy for either side, and if damages would not be adequate, where the balance of convenience lies in terms of whether or not to grant an interim injunction pending the trial of the matter. In that balancing exercise I must take into account the interests of the general public as well even though they are not represented before me.”

8.In relation to wrongful or unlawful acts which are threatened or imminent, the principles for granting a quia timet injunction are also well settled, and were conveniently set out in [34] of the judgment of Fok JA (as he then was) in Billion Star Development Ltd (adopting the summary by leading counsel for the plaintiff in that case) as follows (omitting references to authorities):

“(1) The plaintiff has the burden of proving that it is reasonably certain that what the defendant is threatening and intending to do will cause imminent and substantial damage to him;

(2) The criterion by which the degree of probability of future injury must be established depends on all the relevant circumstances and are not fixed. The greater the prejudice or inconvenience that may be caused by the apprehended injury (if it occurs), the more readily will the court intervene despite uncertainties and deficiencies of proof;

(3) In ascertaining that probability, one of the most important indications of the defendant’s intentions is ordinarily found in his own statements and actions;

(4) Even in the absence of an express threat, the actions of the defendant may give a sufficiently clear indication of an intention to act unlawfully, and if the defendant has undertaken not to commit a breach, that is an evidentiary matter that weighs against the need for an injunction;

(5) Likewise, even if there is no express threat, it may be of importance that the defendant has stated that it is within his rights to do the particular acts complained against.”

9.In so far as the cause of action in public nuisance is concerned, the following relevant principles were stated by Bokhary PJ in Leung Tsang Hung v The Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480:

“[12] Public nuisance is a common law offence. Inheriting the jurisdiction from the office of Attorney-General, the Secretary for Justice may also move to restrain a public nuisance in a relator action brought on behalf of the public at large. Public nuisance is furthermore actionable as a tort by an individual who has been caused particular damage over and above the damage suffered by the public at large… The ingredients of a public nuisance are the same for both the crime and the tort.

[13] While there is an overlap between the elements of public and private nuisance, they are causes of action which are different in kind. Private nuisance is a tort protecting property rights. It is concerned with the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land. But while most reported public nuisance cases involve nuisances on or emanating from land or buildings, an interest in land is not an essential element of the tort. Neither the plaintiff (who will often, as in the present case, simply be a person using the public highway) nor the defendant (who may simply be someone who does an act creating a nuisance hazard) need have any interest in or relationship with any land or building. Such defendants (in both civil and criminal public nuisance cases) have included, for instance, a shipowner and a demise charterer of a vessel discharging oil into navigable waters; a person parking a lorry on the public highway; and senders of racially offensive letters and letters containing salt which caused an anthrax scare.

[14] A state of affairs which constitutes a public nuisance is one which endangers the lives, safety, health, property or comfort of the public; or obstructs the public in the exercise or enjoyment of any right that is common to members of the public…

[15] A defendant may be held liable for public nuisance on the basis of his positive act or his omission. The present case has been approached on the basis of an omission on the part of the incorporated owners. In each case, the nuisance hazard which arises from the act or omission must be causative of particular injury to a member of the public…

[16] Where a nuisance hazard results from a positive act by the defendant, the basis of liability is relatively straightforward. But before a defendant’s omission is actionable, he must first have been under a legal duty to eliminate the nuisance hazard or to prevent it from causing harm to the public. The law must then recognize an entitlement on the part of an injured plaintiff to compensation for the defendant’s omission, which entitlement does not follow as a matter of course.

[17] The modern case-law establishes that a defendant can only be liable for public nuisance if he knew or ought reasonably to have known (in that the means of knowledge were reasonably available to him) that his act or omission would result in a nuisance hazard presenting a real risk of harm to the public. Where a defendant ought reasonably to have known of the risk, he may be said to have the necessary ‘presumed knowledge’…

[18] It is furthermore established that, as with the tort of negligence, a defendant is not liable in public nuisance unless the injury caused to the plaintiff is of a foreseeable type.

[23] In my view, the law has now evolved to the point where the question is simply whether the defendant knew or ought to have known of the relevant nuisance hazard.  Thus, it must be shown that a defendant whose positive act creates the hazard knows or ought to know that it is the likely consequence of his act.  And a defendant who is potentially liable on the basis of an omission must be shown to have had knowledge or presumed knowledge that a nuisance hazard is the likely consequence of his failure to carry out his applicable duty.”

10.The causes of action in trespass and damage to property do not require elaboration.  In so far as the cause of action in private nuisance is concerned:

(1) The source of the nuisance need not be the defendant’s neighbouring land.  An act which is not authorised and which causes an interference with the plaintiff’s reasonable enjoyment of his land is actionable as private nuisance (see The Church of Jesus Christ of the Latter Day Saints v Price [2004] EWHC 3245 (QB), at [154], Ansco Arena Ltd v Law [2019] EWHC 835 (QB) at [19]).

(2) A landlord has the necessary standing to bring a claim even though the interference is targeted at his tenants (see Ontario Ltd v Huron Steel Products (Windsor) Ltd Can LII 7815 (ON CA), 10 OR (3d) 95).

(3) Direction of light at another person’s land can be actionable as private nuisance if it unacceptably interferes with the enjoyment of the land (see Bank of New Zealand v Greenwood [1984] 1 NZLR 525 at 533).

11.On the evidence before the court, it is clear that:

(1) there are serious issues to be tried on the Secretary for Justice’s claims against the 1^st Defendants for public nuisance, and against the 2^nd Defendants for trespass, damage to property and private nuisance;

(2) there is a high risk that, unless restrained, the Defendants will cause substantial harm and damage to the occupants of the Quarters and to the Quarters;

(3) damage would not be an adequate remedy for the Secretary for Justice;

(4) on the other hand, the Defendants will suffer no damage for not committing the unlawful acts complained of by the Secretary for Justice;

(5) the balance of convenience lies in favour of granting or continuing the injunction pending the trial of this action; and

(6) there is no countervailing public interest for not granting or continuing the injunction (in particular the unlawful conduct of the Defendants cannot possibly be defended as any exercise of the right or freedom of expression or assembly).

12.For the above reasons, the Order shall continue until trial or further order of the court.  I also grant leave to the Secretary for Justice to serve this order on the Defendants by way of substituted service by:

(1) fixing a copy thereof securely in a conspicuous place in each of the Quarters; and

(2) publishing a copy thereof on the webpages of the Police and the Government of the HKSAR respectively.

13.The cost of today, as well as the costs reserved on 14 October 2019, shall be in the cause.

Mr Jonathan Chang, instructed by Department of Justice, for the Plaintiff

The 1^st Defendants were absent

The 2^nd Defendants were absent