Television Broadcasts Ltd v. Persons Unlawfully and Willfully Damaging Any Property of the Plaintiff and Another

HCA 1977/2019

[2019] HKCFI 2723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1977 of 2019

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D E C I S I O N

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1.To uphold and maintain the dignity of the Court, and the authority of the Orders it makes, members of the public who are persons likely to be affected by an Order must be notified and clearly informed of the precise terms of the Order: what it enjoins the affected party from doing or what the affected party is ordered to do, at the risk of being held liable for civil or criminal contempt of court.

2.The Court does not act in futile, so it will refrain from making an order which cannot be policed and enforced, either because it is uncertain in scope and terms, or if it is otherwise impossible to identify the party who is in breach of the order.

3.The Plaintiff in this action seeks a quia timet order: which literally means “Since he fears”.  It therefore has the burden to prove that unless the Court intervenes, there is a real risk that the actionable wrong of which it complains will be committed.  As the Court aptly pointed out, no one can obtain a quia timet Order by merely say “Timeo” (or I fear) (Attorney-General for the Dominion of Granada v Ritchie Contracting and Supply Co Ltd [1919] AC 999 at 1005).

4.On the evidence adduced by the Plaintiff, there is nothing to show that any likely defendant has threatened, after the last acts complained of on 4 and 7 October 2019, to do any act that may result in damage either to the Plaintiff’s property or its employees.  Even on the Plaintiff’s case, there has been no act of harassment, damage, obstruction or threats after 4 and 7 October 2019.  There were isolated incidents, on 27 June and 14 July 2019, of the Plaintiff’s news crew having been obstructed, harassed and attacked when they were reporting the recent protests.  In August, there were more unfortunate incidents of the Plaintiff’s employees being surrounded and harassed, and of the Plaintiff’s vehicle being damaged on 3, 4 and 5 August 2019.  Instances of harassment of the Plaintiff’s news crew, and damage to the Plaintiff’s equipment and vehicle, continued to occur on 13 September, 22 September, 30 September, and 1, 4 and 7 October 2019.  However, as the Plaintiff has acknowledged, there were no further instances of injury or damage after 7 October 2019.  On the evidence produced by the Plaintiff, the person who had harassed the Plaintiff’s crew in June or July 2019 had apparently apologized, and there were other messages from netizens and users in early October urging protesters not to injure the reporters.  That may have explained the absence of further incidents since early October 2019.  Nor is there any evidence of new threats or other form of incitement, in the nature complained of by the Plaintiff, having been made in October 2019, before the application for injunction is made.

5.On the available evidence as relied upon by the Plaintiff, I am not satisfied that there is any real risk of damage to, or harassment or assault against, the Plaintiff’s property and employees, to justify the grant of an interim or quia timet injunction in the terms sought, before trial.  It is not just a question of delay or failure to take action since August or September 2019 when the more serious acts took place.  It is a question of lack of evidence of real risk, of imminent harm or injury, to justify the injunction order being made at this stage.

6.In particular, and as the Plaintiff also fair acknowledges, there are difficulties in terms of enforcing the injunction sought by the Plaintiff.  The order sought in this case is different to the usual form of an injunction directed against persons unlawfully occupying or trespassing on a plaintiff’s property, or an injunction to restrain a particular, named defendant from harassing or threatening a plaintiff whom he knows and can identify.  In the usual cases, the terms of the injunction order can be served or otherwise notified to the persons occupying or even threatening to occupy a particular site, by leaving a copy of the order at the site, and served on the named defendant who had been harassing or threatening a plaintiff.  In the present case, the Plaintiff’s news crew will be at different locations, at different times, without prior notice; and on the Plaintiff’s evidence, its employees and equipment are not easily identifiable because the Plaintiff has, since July/August 2019, removed its logo and identification from its vehicles and from the equipment its employees use on site.  I cannot foresee how penal notice of the terms of the injunction can be given to affected and potential defendants, to establish, in the enforcement of the order, that the defendant had notice of the existence and terms of the injunction and the consequences of its breach, yet had acted in breach thereof. It will defeat the purpose of the Plaintiff’s application if the identities of its news team sought to be protected by the injunction should be disclosed in the order itself, or should they be required (for purposes of facilitating the enforcement of the order) to clearly identify themselves at the location where they report events (since they may be reluctant so to do for the reasons explained by the Plaintiff).

7.Whether an order can be effectively enforced is a question which is highly relevant in the court’s exercise of its discretion, in deciding whether or not an injunction should be granted on the facts and circumstances of each case.

8.As the Court has also cautioned in MTR v Persons Unlawfully and Wilfully Obstructing [2019] HKCFI 2160, the invocation of the civil law, and in particular the power to grant an injunction, in aid of the criminal law, is an exceptional course not likely aceded to by the court, because it may result in far more onerous sanctions than the penalty imposed for the offence.  In the absence of threats made after 7 October 2019 and before the issue of this application, and the lack of clear evidence of the real risk that imminent damage and injury will occur, I am not satisfied that the interim injunction should be granted in this case.

9.For these reasons, although I am satisfied that there is a serious question to be tried on the Plaintiff’s causes of action, I will not grant the interim injunction before trial.  The Plaintiff may seek summary judgment or a speedy trial if it is advised that it has a strong case, but on the facts and the available evidence, the summons of 28 October 2019 is dismissed.

Mr José Maurellet SC and Mr Tom Ng, instructed by Stephenson Harwood, for the plaintiff

The 1^st Defendants were not represented and did not appear

The 2^nd Defendants were not represented and did not appear