So Tsun Fung v. Commissioner of Police on behalf of the Police Force Under the Police Force Ordinance (Cap 232)

HCAL 3376/2019

[2019] HKCFI 2799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3376 OF 2019

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Before: Hon Wilson Chan J in Chambers

Date of Hearing: 13 November 2019

Date of Decision: 13 November 2019

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D E C I S I O N

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1.This is an urgent application for interim relief in the terms of the Draft Order lodged by the applicant, in particular an injunction restraining the Hong Kong Police Force (“HKPF”) from doing any of the following acts:

(1)  entering into the precincts as defined under the Chinese University of Hong Kong Ordinance (Cap 1109) without first obtaining a search warrant, unless the requirements under section 50(4) of the Police Force Ordinance (Cap 232) are satisfied;

(2)  doing any act to endanger the students within the precincts without the request from the Chinese University of Hong Kong (“CUHK”), including (but not limited to) the use of teargas, rubber bullets or any other projectiles, or specialised crowd management vehicles.

2.The principles in dealing with applications for interim relief in public law cases are well settled to be those summarized by Chow J in Re Leung Chung Hang Sixtus & Another [2018] 5 HKC 138, §§12-14, which were recently adopted and applied by the Court of Appeal in Junior Police Officers’ Association of the Hong Kong Police Force v Electoral Affairs Commission and Others [2019] HKCA 1197 at §14.  They have been summarized by the applicant as follows:

(1)  For the purpose of deciding whether to grant interim injunctive relief in public law cases, the American Cyanamid principles governing the grant of interlocutory injunction, subject to necessary modifications, remained applicable.  The court should consider:

(a)  whether there is a serious issue to be tried in the action;

(b)  if the plaintiff were to succeed at the trial, whether he would be adequately compensated by an award of damages for any loss caused by a refusal to grant an interlocutory injunction;

(c)  if damages would not be an adequate remedy to the plaintiff, whether, if the injunction were granted, the defendant would be adequately compensated under the plaintiff’s undertaking as to damages; and

(d)  if there is doubt as to the adequacy of the respective remedies in damages, whether the balance of convenience lies in favour of granting or refusing the interim injunction sought.

(Re Leung Chung Hang Sixtus §12)

(2)  In the public law context, the above principles have to be modified.  The modifications relevant to the present case include inter alia:

(a)  In relation to the question of balance of convenience, the court takes a wider view than just the interests of the immediate parties to the application.  The court must take into account the public interest in the balancing exercise.  The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge. 

(b)  The relevance of damages as an alternative remedy will also vary depending on the nature of the decision under challenge.

(c)  This does not mean that financial consequences are to be ignored.  They remain relevant to a consideration of the balance of convenience, but should not be regarded as the sole measure in assessing the balance of convenience. 

(d)  In case involving the public interest, for example, where a party is a public body performing public duties, the decision to grant or withhold interim injunctive relief will usually be made not on the basis of adequacy of damages but on the balance of convenience test.

(e)  Ultimately, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial), or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial.

(Re Leung Chung Hang Sixtus §13)

(3)  Save in exceptional circumstances, interim relief may only be granted in leave to apply for judicial review has been obtained (see Practice Directions SL3, para 10).  (Re Leung Chung Hang Sixtus §14)

3.The applicant is a student studying in the CUHK as well as the President of the Executive Committee of the Student Union of the CUHK in 2019-2020.

4.The applicant submits that the starting point is the right guaranteed under Article 29 of the Basic Law, which provides that the “homes and other premises” of Hong Kong residents are “inviolable” and arbitrary intrusion into the same are prohibited.  The applicant also relies on Article 14 of the Hong Kong Bill of Rights.

5.The applicant has further submitted that in at least three instances, on 6 October, 7 and 12 November 2019 respectively, the HKPF have entered into the precincts of the CUHK without warrant or lawful justification.

6.As far as I can see, the only reason why the applicant says the entries were without “lawful justification” is that HKPF have failed to identify any “specific person to be arrested pursuant to the requirements under s.50(4) of the [Police Force Ordinance, Cap 232 (“PFO”)] beforehand”.  See: paragraph 10 of the Form 86. 

7.In my view, the applicant’s application falls at the first hurdle, namely, the applicant has failed to establish a serious question to be tried.

8.Section 50(4) of the PFO referred to by the applicant provides as follows:

“If ingress to such place cannot be obtained under subsection (3) it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity of escape from a police officer, to enter such place and search therein and in order to effect an entrance into such place to break open any outer or inner door or window of any place whether that of the person to be arrested or of any other person if, after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance.”

9.As pointed out by Mr Suen SC, there is simply nothing in the text of section 50(4) requiring the police to identify any specific person to be arrested. 

10.Contextually, it is contrary to common sense to require the police to identify the specific person to be arrested before entry, in the situation where the police actually witnessed the commission of the crime in question and immediately took steps to apprehend the person who he reasonably suspects of being guilty of the offence.

11.Further and in any event, it is the HKPF’s evidence that their entry into the precincts of the CUHK were for purposes wider than to effect arrest.

12.According to the evidence filed by HKPF, on 11 November 2019, many protesters were seen at the No. 2 bridge adjoining CUHK campus (“No. 2 Bridge”) and in the vicinity of No. 2 Bridge which was within the CUHK precincts throwing bricks, petrol bombs and other items onto Tolo highways, blocking both bounds of the highway and endangering the life and safety of road users.  Similar acts were carried out targeting the MTR East Rail Line.  This is part of the “三罷” movement to paralyze Hong Kong in blatant disregard of life and safety of the public.  Vehicles were set alight within the CUHK campus.  It was against these circumstances that the police was deployed to clear and station in No.2 Bridge (which is Government land managed by CUHK, with right of way to the public and law enforcement agencies) for law enforcement, including preserving peace and making arrests. 

13.Considering the nature of the alleged unlawful or criminal activities committed by the protesters at or in the vicinity of CUHK, section 17(2) of the Public Order Ordinance, Cap 245 is applicable to empower any police officer of or above the rank of inspector to stop or disperse any gathering or procession whatsoever or wheresoever, if he reasonably believes that the same is likely to cause or lead to a breach of the peace.

14.It should be noted that it is part of the obligations and duties of a police officer to take all steps which appear to the officer to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury.  See §20-284 Archbold Hong Kong 2019.  The police has wide statutory duties and owes a duty to the public to enforce the law which he could be compelled to perform: R v Commissioner of Police of the Metropolis, Ex Parte Blackburn [1968] 2 QB 118.  The duties of the police force are set out in section 10 of the Police Force Ordinance (Cap 232). 

15.At common law, where a police officer is off private premises, it would be within the officer’s duty to enter such premises to prevent a breach of the peace.  See §20-284 Archbold Hong Kong 2019. 

16.In the circumstances, the applicant’s position that the police power to enter the CUHJK precincts is solely based on section 50(4) of the Police Force Ordinance is misconceived.

17.As to the injunction sought under paragraph 1(2) of the Draft Order, I can dispose of the application by pointing out that there is simply nothing in the Form 86 and the Skeleton Submissions of the applicant to establish the basis for seeking the order, resulting in the same conclusion that there is no serious issue to be tried.  

18.Moreover, on my view on the merits based on the existing evidence, I do not feel able to grant leave to the applicant to apply for judicial review at this stage. 

19.Aside from the lack of merits, I am of the further view that the balance of convenience is clearly against the granting of any interim relief.  

20.I agree with the HKPF’s contention that given the violent incidents occurring at No.2 Bridge as well as other parts of CUHK, and considering the legal bases and clear necessity for the Force to enter into the CUHK precincts, there is no reason for the court to exercise its discretion to restrict the Force’s exercise of force in a blanket manner.  An interim injunction order will become a significant hindrance against the Force’s law enforcement (including the exercise of the power of arrest and use of force) which shall very much depend on the circumstances and developments at or in the vicinity of CUHK in a responsive manner.

21.In other words, in my view the refusal of interim relief carries the lower risk of injustice if it should turn out to have been “wrong” in the sense of granting an injunction to a party who fails to establish his right at the trial.

22.For the above reasons, the applicant’s application for interim relief is dismissed.

Ms Audrey Eu, SC leading Mr Alvin Yeung, Mr Jeffrey Tam, Mr Jason Lee and Mr Albert Wan, instructed by Messrs Ho Tse Wai & Partners, for the applicant

Mr Jenkin Suen, SC, instructed by Department of Justice, for the putative respondent