Times Square Ltd v. Lee Kwun Kit (李冠傑) t/a Jl Music

HCA 2244/2018

[2020] HKCFI 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2244 OF 2018

__________________________

__________________________

________________

DECISION

________________

Application

1.By a summons dated 4 November 2019, the Plaintiff applied for default judgment against the 1^st and the 2^nd Defendants (“the Summons”).  Specifically, the Plaintiff seeks the following relief:

(1)     a declaration that busking activities or any other forms of street performance do not constitute “passive recreation” pursuant to the Deed of Dedication dated 30 July 1992 (as defined below); and

(2)     various injunctions restraining the Defendants from, inter alia,

(a)     occupying or remaining at the Open Piazza (defined at paragraph 7 below) of Times Square by busking or any other form of street performance;

(b)     causing, placing or leaving obstructions at the Open Piazza in connection with the carrying out of busking or any other form of street performance; and

(c)     disturbing, interrupting or obstructing any of the Plaintiff’s employees in the proper execution of their duties in connection with the injunctions mentioned above.  

2.The Plaintiff makes the present application under Order 19 rule 7 of the Rules of High Court (Cap. 4A), on the basis of (i) the 1^st Defendant’s default in filing any Defence, and (ii) the 2^nd Defendant’s default in filing any notice of intention to defend these proceedings.  

3.The Defendants are currently subject to interlocutory injunctions granted by Deputy High Court Judge MK Liu the terms of which are essentially the same as the final relief sought by the Plaintiff.

4.The 1^st Defendant has agreed to a Consent Order on 29 May 2019.  On 26 June 2019, an interlocutory injunction was granted against the 2^nd Defendant. 

5.None of the Defendants chose to appear at this hearing albeit being properly served and notified of the Plaintiff’s present application. 

6.Ms Wong for the Plaintiff submitted that default judgment should be entered against the Defendants, because:

(1)     The 1^st Defendant has defaulted in filing any Defence in compliance with the unless order of Master Chow dated 14 August 2019, whereafter the 1^st Defendant has not expressed any further intention to defend or take part in these proceedings.

(2)     As regards the 2^nd Defendant, despite the well-publicised status of these proceedings since September 2018, no one answering the description of D2 has ever come forward, or expressed any intention or interest in participating in these proceedings. Thus, no one who fits the description of the 2^nd Defendant has filed any Acknowledgement of Service (or Defence), notwithstanding proper service of the court documents having been effected on them.

(3)     The Plaintiff is plainly entitled to judgment on the basis of its Statement of Claim dated 24 September 2018 (“SOC”), and the facts of this case amply justify the grant of declaratory and injunctive relief to the Plaintiff in this application.

Material Facts

Deed of Dedication

7.The Plaintiff is the registered owner of the development known as Times Square in Causeway Bay in Hong Kong (SOC §1). 

8.At the G/F of Times Square, there is an open piazza (“Open Piazza”) which is widely used by the public for pedestrian passage and passive recreation. 

9.By a Deed of Dedication dated 30 July 1992 under Memorial No. UB 5380714 (“Deed of Dedication”), the Plaintiff dedicated the Open Piazza unto the public for the purposes of pedestrian passage and passive recreation (“Permitted Purposes”), subject to the terms and conditions set out in the Deed of Dedication (SOC, §6).

10.Notwithstanding the public dedication of the Open Piazza, the Plaintiff retains full ownership and management of the Open Piazza (SOC, §7).  Further, the rights of the public to use the Open Piazza for the Permitted Purposes is not absolute and is not unrestricted (SOC, §8). In particular, the permitted uses of the Open Piazza are subject to, inter alia, the following restrictions (SOC, §9):

(1)     “No person shall climb, damage, pull down or destroy any of the trees, shrubs or plants or pluck the flowers in the [Open Piazza] or wilfully cut up or injure the surface of the gravel walks or lawns or trample on or injure the beds or place or leave any obstructions or things on the walks or elsewhere within the [Open Piazza]” (Clause 2(c)(v)).

(2)     “Noisy and disorderly conduct and every other practice in the opinion of the Owner likely to cause annoyance or nuisance or to interfere with the use and enjoyment of the [Open Piazza] as open space and passive recreation ground are forbidden” (Clause 2(c)(vii)).

(3)     “No person shall in the [Open Piazza] wilfully obstruct, disturb, interrupt or annoy any other person in the proper use of the [Open Piazza], or wilfully obstruct, disturb or interrupt any servant, employee or person employed by the Owner in the proper execution of his duty or of any work in connection with the laying out maintenance landscaping or upkeep of the [Open Piazza].” (Clause 2(c)(xi)).

11.The Plaintiff’s pleaded case against the Defendants is that:-

(1)     The 1^st Defendant is an individual who operates under various names, including “JL Music” and “City Echo” (SOC, §§2-3).

(2)     The 2^nd Defendant comprises individuals whose identities are unknown, and includes (but may not be limited to) individuals or groups of individuals organised by the 1^st Defendant to conduct busking and other activities at the Open Piazza of Times Square as pleaded in the SOC (see SOC, §§4-5).

(3)     On multiple occasions, including but not limited to six successive Fridays between 17 August 2018 and 7 September 2018:

(a)     The 1^st Defendant (via the names “JL Music or “City Echo”) hosted and/or organised for various individuals or groups of individuals, including himself and members of the 2^nd Defendant, to conduct busking and other activities at the Open Piazza (“Infringing Acts”). These were done without the Plaintiff’s consent, and did not constitute the Permitted Purposes under the Deed of Dedication (SOC, §§3-5,11-12).

(b)     The Infringing Acts frequently generated noise louder than 70 dBA, which constituted noisy conduct and attracted verbal complaints from tenants and others, and constituted breach of Clause 2(c)(vii) of the Deed of Dedication (SOC, §12).

(c)     The Infringing Acts also constituted breach of Clause 2(c)(v) of the Deed of Dedication, by reason of the obstruction caused by, inter alia,: (i) the placards placed by the Defendants beside their performance at the Open Piazza, (ii) the freestanding loudspeakers, amplifiers and portable electricity supplies used by the Defendants in their performances, and (iii) the freestanding percussion instruments, electronic keyboard, chairs, stools, microphone stands or music stands used in their performances (SOC, §13).

(d)     The Plaintiff through its staff members and its solicitors had on multiple occasions issued verbal and written warnings, requesting the Defendants to cease and desist from conducting further Infringing Acts (SOC, §14).

(e)     In continued breach of Clause 2(c)(xi) of the Deed of Dedication, the Defendants showed no intention of obeying the instructions of the Plaintiff’s employees and agents, but continued to advertise and conduct busking activities at the Open Piazza (SOC, §15).

(f)     By reason of the aforesaid, the Defendants’ Infringing Acts constituted acts of trespass on the Plaintiff’s land (SOC, §17), and the Plaintiff seeks the relief as set out in the SOC.

Procedural history

12.On 24 September 2018, the Plaintiff commenced these proceedings by Writ of Summons indorsed with the SOC.  On the same day, the Plaintiff issued an inter partes summons (“24.09.2018 Summons”) and applied for (i) substituted service with respect to the 2^nd Defendant, and (ii) various interlocutory injunctions restraining the Defendants from (inter alia) busking, conducting any other form of street performance, or causing obstructions at the Open Piazza, until trial of the action or further order of the court.

13.The 24.09.2018 Summons was heard by DHCJ Keith Yeung SC on 28 September 2018. At that hearing:

(1)     D1 was legally represented,and agreed to provide undertakings to the court which substantially mirrored the interlocutory relief sought by the Plaintiff. The Plaintiff’s application for interlocutory injunctions vis-à-vis the 1^st Defendant was adjourned for substantive argument (subsequently fixed to be heard on 26 June 2019). The court also ordered for the filing and service of subsequent pleadings in the action as between the Plaintiff and the 1^st Defendant to be stayed until final disposal of the 24 September 2018 Summons.

(2)     The 2^nd Defendant was absent. The court was satisfied that the description of the 2^nd Defendant was sufficiently certain to identify those who were necessarily included, and excluded those who were not, after applying the test laid down in Billion Star Development v. Wong Tak Chuen [2012] 2 HKLRD 85 at §54 per Au J. (as he then was) and Bloomsbury Publishing plc v. News Group Ltd [2003] 1 WLR 1633 at §§15-22 per Sir Andrew Morritt VC.  The court further held that it was impractical to effect service on all the individuals who fell within the stated description of the 2^nd Defendant, and granted orders for substituted service on the 2^nd Defendant.  In particular, it was ordered that service on the 2^nd Defendant of all orders made by the court in this action and any further notices of the hearing or future court documents, be by fixing the same at a conspicuous place at the Open Piazza, and notice of such documents shall be posted up on the website of the Plaintiff. The 24.09.2018 Summons as between the Plaintiff and the 2^nd Defendant for interlocutory injunctions was adjourned to 5 October 2018 before the Summons Judge.

(3)     The adjourned 24.09.2018 Summons as between the Plaintiff and the 2^nd Defendant came before G Lam J. on 5 October 2018.  At that hearing:

(a)     The Court was satisfied that the directions for substituted service on the 2^nd Defendant had been duly complied with. Notwithstanding that, no one answering the description of the 2^nd Defendant appeared in court to respond to the Plaintiff’s summons for interlocutory injunctions.

(b)     After considering the evidence and the Plaintiff’s submissions, the Court further granted interlocutory injunctions against the 2^nd Defendant until determination of the 24.09.2018 Summons between the Plaintiff and the 1^st Defendant, on the basis that the substantive hearing would provide a good opportunity for the Court to review the Plaintiff’s application for injunctions against the 2^nd Defendant in light of the arguments advanced by the 1^st Defendant who was then legally represented.

(c)     The substantive hearing of the 24.09.2018 Summons was heard on 26 June 2019 by Deputy High Court Judge MK Liu.

(d)     Neither the 1^st nor the 2^nd Defendant (i) filed any evidence in opposition to the 24.09.2018 Summons, or (ii) attended the hearing.  The Plaintiff’s application was therefore uncontested, and its supporting evidence unchallenged by the Defendants.

(e)     Importantly, prior to the hearing, the 1^st Defendant signed a consent summons, agreeing to the continuation of the injunctions sought by the Plaintiff, and seeking leave for his attendance to be excused.  By Consent Order dated 29 May 2019, the Court granted an order in terms of the consent summons, under which the interlocutory injunctions against the 1^st Defendant were continued until trial of this action or further order of the court.

(f)     With respect to the 2^nd Defendant, the Court was first satisfied that the relevant documents in these proceedings had been duly served on the 2^nd Defendant. The Court further held that (i) the 2^nd Defendant’s busking activities at the Open Piazza constituted trespass to the Plaintiff’s land, and (ii) whilst it was not necessary to consider the balance of convenience, the balance was in any event clearly in favour of granting the injunction against the 2^nd Defendant.  Accordingly, the Court ordered that the injunctions against the 2^nd Defendant be continued until trial of this action or further order of the Court.

Applicable Legal Principles

14.The relevant legal principles on granting default judgment under Order 19 rule7 are well established and can be summarised as follows.

(1)     The default judgment procedure under Order 19 rule 7 is available in cases where the defendant is in default of notice of intention to defend, as well as in default of defence: see Hong Kong Civil Procedure (2020) (Vol.1) (“HKCP”), §19/7/2.

(2)     In determining whether to grant default judgment, the Court must consider the application according to the pleadings alone, and decide whether the plaintiff appears to be entitled to judgment on its statement of claim: see HKCP at §19/7/11; Seto Yim King v. Soo Hooyet Dew [2019] HKCFI 2640 at §10 per K Yeung J.

(3)     The court cannot receive any evidence, and it is thus not necessary for the plaintiff to prove its case by evidence: see HKCP at §19/7/11.

(4)     Notwithstanding the wording in Order 19 rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory: see HKCP at §19/7/14; Seto Yim King v. Soo Hooyet Dew (supra) at§12.

(5)     With regards to the Plaintiff’s claim for injunctive relief, it is well-established that the court has jurisdiction to grant permanent injunctions in default judgments: see HKCP at §19/7/17; Biostime International Investment Ltd v. France Heson Paper (Hong Kong) Co Ltd[2015] 2 HKLRD 658 at §§12-13 per Deputy High Court Judge Paul Lam SC.

(6)     With respect to the Plaintiff’s claim for declaratory relief:

(a)     It is not the normal practice of the court to make a declaration without a trial as in the case of a judgment in default of defence or of notice of intention to defend the proceedings: see Patten v. Burke Publishing Ltd [1991] 1 WLR 541 at 543A-H (citing Wallersteiner v. Moir[1974] 1 WLR 991, 1029-1030); HKCP 2019 at §§19/7/14, 19/7/20; Seto Yim King v. Soo Hooyet Dew (supra) at §12.

(b)     However, it has been repeatedly emphasised that this is only a rule of practice and not of law, and will give way to the paramount duty of the court to do the “fullest justice to the plaintiff to which he is entitled”.  Hence, the court has been prepared to grant declaratory relief in default judgments, especially where the plaintiff has a “genuine need for declaratory relief”, or where “doing the fullest justice to the plaintiff justifies the grant of appropriate declaratory relief”: see: HKCP 2019 at§§19/7/14, 19/7/20; Patten v. Burke Publishing Ltd[1991] 1 WLR 541 at 544B, D-E, F-G per Millett J (as he then was); Seto Yim King v. Soo Hooyet Dew (supra) at §§13, 16, 17 (which granted declarations relating to the plaintiff’s title, interest and rights in a property).

(c)     It has further been noted that, given the nature of an application for default judgment which is akin to an ex parte application, the plaintiff must make a full and frank disclosure to the court of matters which militate against the grant of declaratory relief, so that the court can properly assess the merits of granting the same without the benefit of full submissions from both sides: see Sky Joy Investment Ltd v. Zheng Dunmu unreported,HCA 395/2016, 16 August 2017 at §50 per Deputy High Court Judge William Wong SC.

Analysis

15.With respect to the 1^st Defendant, I am satisfied that the 1^st Defendant has breached the unless order of Master Chow dated 14 August 2019.  Hence, the 1^st Defendant is now debarred from filing any defence.  The Plaintiff is thus entitled to enter default judgment against him with costs.

16.Insofar as the 2^nd Defendant is concerned, I am also satisfied that no one who fits the description of the 2^nd Defendant has filed any notice of intention to defend.

17.On the facts of the present case, I grant permanent injunctions against the 1^st and the 2^nd Defendants in terms of paragraphs 2 to 5 of the Summons.  But I refuse to grant the declaratory relief.

18.On the merits, I am satisfied that the Plaintiff is entitled to the permanent injunctions.  The Plaintiff is the registered owner of the Open Piazza.  The right of the public (including the Defendants) to use the Open Piazza is subject to the express terms and conditions set out in the Deed of Dedication.  The Infringing Acts committed by the Defendants (i) did not constitute the Permitted Purposes of use under the Deed of Dedication (viz. pedestrian passage or passive recreation), and (ii) in fact, constituted breach of various express terms of the Deed of Dedication.

19.As such, the Defendants did not and do not have a right to commit the Infringing Acts at the Open Piazza, and thus committed acts of trespass to the Plaintiff’s land.

20.The public, including the Defendants, must exercise their rights within the four corners of the laws of Hong Kong.  The law must be obeyed.

21.However, given the effectiveness of the permanent injunctions, I do not find it necessary to grant the declaratory relief.  Ms Wong for the Plaintiff submitted that the interlocutory injunctions granted since September 2018 until the present have remained highly effective in restraining commission of further Infringing Acts by any of the Defendants.

22.In 曾婉玲 對 兆隆苑業主立案法團unrep, LDBM 199 of 2001; 18 September 2001 at [22], HH Judge Johnson Lam (as he then was) said:

“22. A well‑established reason for a court to refuse to grant declaratory relief is a situation where the exercise does not serve any useful purpose. The principle is summarized in Zamir & Woolf, The Declaratory Judgment, 2^nd Edn., at Para 4.087,

‘If it can be shown that a declaration would not serve any practical purpose, this will weigh heavily in the scales against the grant of declaratory relief.  If, on the other hand the grant of declaratory relief will be likely to achieve a useful objective, the court will be favourably disposed to granting relief.  The question of whether or not any useful purpose would be served by granting declaratory relief is therefore of prime importance in determining how discretion should be exercised.’”

23.Ms Wong for the Plaintiff submitted that the declaratory relief might give a stronger deterrent effect to those who intend to commit the Infringing Acts.  However, I am of the view that the permanent injunctions to be granted are equally, if not more effective, in preventing the commission of the Infringing Acts.  The Court must be cautious not to overkill by making unnecessary declarations.

Disposition

24.For all the reasons stated above, I make an order in terms of paragraphs 2 to 5 of the Summons.

25.Finally, it remains for me to thank Ms Wong for the Plaintiff for her very able and comprehension submissions which greatly assisted this Court.

Ms Sheena Wong, instructed by Mayer Brown, for the Plaintiff

The 1^st Defendant was not represented and did not appear

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