Billion Star Development Ltd v. Wong Tak Chuen and Others

CACV 49/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2012

(ON APPEAL FROM HCA NO. 708 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Kwan JA:

1.I agree with the judgments of Fok JA and Lam JA.

Hon Fok JA:

Introduction

2.This is the appeal of the 8^th defendant against a final injunction order granted against him by Au J in his Judgment dated 10 February 2012.[1]  The terms of the injunction granted and the circumstances of, and basis for, its grant are described below.

Factual and procedural background

3.The plaintiff is the registered owner of a property (the Remaining Portion of New Kowloon Marine Lot No. 25 and Section B of New Kowloon Marine Lot No. 25 (“the Property”)) situated within the Mei Foo Sun Chuen residential estate (“Mei Foo”).  It wished to develop the Property by building a block of flats on it and the building plans were duly approved by the Building Authority.

4.The proposed redevelopment was opposed by, amongst others, some of the residents of Mei Foo because the proposed building would be erected in front of the residential blocks at Stage VIII of Mei Foo. In March and April 2011, this opposition led to protests organised by a protest group and organised protest activities to prevent the plaintiff from carrying out construction works.  The protest activities included blocking access and entry, setting up cordons and lying on the ground to stop unloading.

5.Those protests were of some effectiveness because of the physical attributes of the Property, specifically the fact that the only direct vehicular access to it is via the private road within Mei Foo, known as Broadway South-West bound (“the Access Road”), and the Property is therefore landlocked.

6.The 1^st to 6^th defendants in this action were residents of Mei Foo and members of the protest group. They were the originally named defendants in the writ, together with the 7^th defendant, named as “Persons entering or remaining without the consent of the plaintiff at [the Property] and other persons interfering with the plaintiff’s right of way over the private roads in Mei Foo Sun Chuen in connection with the protests against the plaintiff’s proposed development of the said properties”.

7.The plaintiff’s pleaded case, and the basis for the injunction order sought, was that, on divers dates in March and April 2011, the defendants had unlawfully trespassed on the Property and obstructed or otherwise interfered with the plaintiff’s right of way to prevent its contractors from carrying out the construction works for the development of the Property.  This was the blanket allegation in paragraph 11 of the statement of claim, which was then followed by ten specific instances identified as C.1 to C.10 and pleaded in paragraphs 12 to 24.

8.On commencing the action on 20 April 2011, the plaintiff issued a summons seeking an interlocutory injunction against the 1^st to 7^th defendants in the following terms:

“An injunction restraining the Defendants, whether by themselves or by their servants or agents and all persons having notice of the Order to be made herein, from doing, procuring, causing, authorizing or permitting any of the following acts:

(1) Entering into, remaining at or in any way trespassing [the Property]; and

(2) Interfering with the Plaintiff’s use, occupation and enjoyment of the Property and its right of way (vehicular or otherwise) over the private roads in Mei Foo Sun Chuen and/or causing nuisance to the Plaintiff in respect of its use, occupation and enjoyment of the Property and its right of way (vehicular or otherwise) over the private roads in Mei Foo Sun Chuen by any means, including (but not limited to):

(a) entering into and/or remaining at the Property;

(b) preventing access (vehicular or otherwise) by the Plaintiff, its servants or licensees into and out of the Property;

(c) preventing access (vehicular or otherwise) by the Plaintiff, its servants or licensees to and through the private roads in Mei Foo Sun Chuen (including [the Access Road]) for the purpose of accessing the Property; and

(d) preventing the Plaintiff, its servants or licensees from carrying out works at the Property.

until after the trial of this action or further order.”

9.At the first hearing of the injunction application on 29 April 2011, a group of about 80 persons attended and claimed to be the 7^th defendant.  These included the defendants who were subsequently joined as the 8^th, 9^th and 10^th defendants.  At that hearing, the 8^th defendant was represented by leading counsel who made submissions on his behalf.  Deputy Judge Au-Yeung (as she then was) refused to grant an interim injunction, principally on the ground that the defendants should be given an opportunity to consider the application and file evidence in opposition.

10.The application then came on again before Au J on 19 December 2011.  By that time, the plaintiff had issued an O.14 summons against the 1^st to 6^th, 8^th and 9^th defendants seeking final judgment for the injunction sought.  By then, the 8^th defendant had been formally joined as a party by amendment to the specially endorsed writ and had filed a defence.  Of particular relevance are the plaintiff’s pleading of incident C.10 in the amended statement of claim and the 8^th defendant’s response.

11.The plaintiff pleaded:

“(C.10) April 2011

23. On 3 April 2011, a group of around 500 individuals, including the 1^st, 2^nd, 3^rd and, 4^th, 8^th, 9^th and 10^th Defendants and others claiming to be residents of Mei Foo Sun Chuen, obstructed Broadway by sitting and lying on the ground of Broadway outside Stage VIII of Mei Foo Sun Chuen, the only vehicular access to the Property, to protest against the Plaintiff’s proposed development of the Property.

24. The aforesaid protestors have stationed themselves outside the Property to monitor movement into and out of the Property, and have threatened to take further steps if the Plaintiff attempted to enter the Property to commence work thereon.  Tents have been set up by the 7^th Defendant at the entrance of the Property to monitor the Property on 24-hour basis.”

12.In response, the 8^th defendant pleaded (Defence §9) that he had “lawfully participated in a rally at Broadway, Mei Foo Sun Chuen from about 3 p.m. to 5 p.m. on Sunday, 3 April 2011 … to protest against the Plaintiff’s proposed development of the Property”, but otherwise denied paragraphs 23 and 24.  The Particulars which followed pleaded a specific denial of participation in the incidents alleged in paragraph 24. His presence at the protest rally on 3 April 2011 was also confirmed in his affidavit opposing the injunction.

13.Shortly prior to the hearing before Au J, the 1^st to 6^th defendants consented to final judgment for an injunction in the terms sought by the plaintiff and a consent order to that effect was made on 13 December 2011.

The hearing below and Judgment of Au J

14.What therefore remained in issue before Au J at the hearing on 19 December 2011 were the plaintiff’s applications for final and/or interlocutory injunctive relief against the 7^th to 10^th defendants.

15.Au J found that the plaintiff was the owner of the Property and had a legal right of way over the Access Road (Judgment §§25 to 35).  He rejected the defences (pleaded by the 1^st to 6^th defendants and adopted by the 8^th defendant) that: (i) there was illegality in the Building Authority’s approval of the plaintiff’s building plans (Judgment §58); (ii) there was a prescriptive right of way over the plaintiff’s Property (including those parts which formed part of the pedestrian walkway and the dual carriageway) (Judgment §59); (iii) the plaintiff had no right of way as a matter of construction of the relevant assignment to it of the Property (Judgment §60); and (iv) the presence of the defendants on the Access Road was an exercise of their constitutional rights, namely freedom of speech, freedom of assembly, procession and demonstration (Judgment §61).

16.Materially, on the question of interference with the plaintiff’s right of way, Au J held:

“36. Having satisfied that the Plaintiff has acquired the right [of] way to use the private roads (including the Access Road) within Mei Foo as contended, I further accept that there is ample evidence to show that a large group of individuals have (i) substantially interfered with Plaintiff’s right of way by completely blocking the access to the Property via the Access Road, (ii) created a nuisance by obstructing or impeding the Plaintiff from having proper access to its own Property, and (iii) trespassed onto the Property to prevent Plaintiff’s workers and vehicles from entering and carrying out works thereon. These wrongful activities are well recorded and documented, and not seriously disputed.

37. The interference with Plaintiff’s right of way is thus substantial, for the Plaintiff’s only vehicular access to the Property via the Access Road has been effectively completely blocked.  It is not disputed, and in any event the evidence shows that, the intention behind these acts is to prevent the Plaintiff from constructing the Project on the Property. That these individuals intend to continue what they have been doing unless restrained by the court is also clear on the evidence.”

(Footnotes omitted)

17.In the circumstances, the Judge exercised his discretion and granted an interlocutory injunction against the 7^th defendant in the terms sought (Judgment §64).

18.So far as the 8^th to 10^th defendants were concerned, the Judge noted that they effectively raised two grounds of opposition to the injunction application.  First, they argued that the plaintiff had failed to show that they had done anything to infringe the plaintiff’s right of way over the Access Road and had never prevented or obstructed the plaintiff or its contractor from using the Access Road and had not trespassed on the Property.  Secondly, they argued that they were merely exercising their right of freedom of speech and assembly which were paramount rights which should and could not be undermined.

19.As to the first ground, Au J held:

“69. For the first ground:

(1) Mr Yu SC for the Plaintiff submits (which is not disputed) that the Court will grant a quia timet injunction where it can be shown that a defendant threatens to carry out the wrongful acts that the injunction seeks to restrain.

(2) In relation to showing whether there is such a threat, it has also been said that “one of the most important indications of the defendant’s intentions is ordinarily found in his own statements and actions”. Further, for this purpose, even if the defendant has not threatened to perform particular acts that would, if they took place, be wrongful, it may be of importance in the circumstances that he has stated that it is within his rights to do so.

(3) In the present case, it is true that the evidence does not show that the 8^th to 10^th Defendants had carried out any acts that had infringed the Plaintiff’s right over the use of the Access Road. But I accept Mr Yu’s submissions that the 8^th to 10^th Defendants have evinced an intention that they would well carry out such wrongful acts to interfere with the Plaintiff’s right for reasonable use of the Access Road in light of the following:

(a) They have identified themselves to be the 7^th Defendant, the description of which is clear to refer to those who have infringed or are to infringe the Plaintiff’s right over the Property or its right of way over the Access Road. Thus, by their own conducts or statements, they have shown that they have had such an intention or threatened to carry out the wrongful acts.

(b) This is further underlined by the fact that they have not stated in their opposition affirmations that they did not and do not intend to carry out these wrongful acts. All they are saying was only that they did not do so on 3 April 2011. They have however indicated clearly that they supported and participated in the activities organised by the Protest Group.

(c) Further, they repeatedly emphasized and reinstated in their affirmations and at the hearing that it was within their constitutional rights to participate and support these demonstrations and rallies organized the Protest Group over the Access Road. At the same time, the overwhelming evidence filed for the present purposes shows that (as I have accepted above) these rallies did have the effect of interfering the Plaintiff’s right to use the Access Road. Thus, by asserting a right to do so, they have further by their conducts and statements shown that, if not restrained, there is a real risk that they would carry out such wrongful acts in the future.

(4) Mr Martin Lee SC for the 8^th Defendant, when pressed by the Court as to why the 8^th Defendant had voluntarily identified himself to be the 7^th Defendant (where the descriptions are clearly referring to persons related to the infringing acts), said in his submissions that it might be that, in so identifying himself, the 8^th Defendant had misunderstood the descriptions and made a mistake. With respect, I cannot accept this explanation. First, whether he had made a mistake or was laboured under a misunderstanding in identifying himself to be the 7^th Defendant is a matter of fact (and thus evidence), but the 8^th Defendant (despite having ample opportunity to do so) has not said so in his opposing affirmation. Thus, there is simply no evidence to support the suggested misunderstanding or mistake. Second, when identifying himself to be the 7^th Defendant at the hearing in April 2011, the 8^th Defendant was legally represented with leading counsel. Unless there are good reasons or evidence to show otherwise (and there is none), it is beyond me as to how he could have allegedly misunderstood the 7^th Defendant’s descriptions.

(5)   In the circumstances, I am satisfied that it has been shown on the evidence that there is at least a real risk that, if not restrained, 8^th to 10^th Defendants may carry out the infringing acts in the future.”

(Footnotes omitted)

20.The Judge rejected the second ground on the basis that the constitutional rights of freedom of expression and peaceful assembly did not extend into the realm of private property and provided no justification for infringement of property rights (Judgment §70 referring back to §61).

21.Accordingly, the Judge granted the final injunction against the 8^th and 9^th defendants and, for reasons that are not material, he granted an interlocutory injunction against the 10^th defendant (Judgment §§72 & 73).

The 8^th defendant’s case on appeal

22.The 8^th defendant, represented in this Court as he was below by Mr Martin Lee SC,[2] appeals against Au J’s grant of final injunctive relief against him raising, broadly, three grounds:

(1)   First, he contends that the claim against the 8^th defendant was not properly pleaded and verified and no relief ought to be granted under O.14.

(2)   Secondly, he argues that the plaintiff had failed to show he had infringed its rights and contends that there was no basis for accepting the plaintiff’s argument based on the evincing of an intention to act wrongfully and accordingly no case for a quia timet injunction. This is essentially the first ground argued by him below (see paragraph 18 above).

(3)   Thirdly, he argues that he was merely exercising his constitutional right of freedom of assembly, or procession and of demonstration.  This is the second ground argued by him below (see paragraph 18 above).

Case against the 8^th defendant properly pleaded and verified?

23.The first ground advanced by way of appeal is not raised in the notice of appeal and there is no application to amend that notice.

24.The argument is that, after the amendment to the writ to add the 8^th to 10^th defendants as such, rather than including them within the description of the 7^th defendant, the statement of claim does not disclose any reasonable cause of action against the 8^th defendant because (in summary):

(1)   The only incident pleaded against the 8^th defendant was that identified as C.10.  Unlike the other incidents, C.1 to C.9, it was not alleged that there was any wrongful interference with the plaintiff’s right of way during the rally on 3 April 2011.

(2)   The incident on 3 April 2011 took place on a Sunday when no construction work could be carried on so that the protestors, including the 8^th defendant, did not and could not have obstructed the plaintiff’s contractors’ workers from gaining access to the Property.

(3)   Hence, paragraph 23 of the amended statement of claim only pleads that the individuals concerned “obstructed Broadway”.

(4)   Paragraph 24 refers only to the days in April subsequent to 3 April 2011 and therefore does not concern the 8^th defendant.

25.Insofar as the Judge accepted the plaintiff’s argument based on the 8^th defendant’s evincing of an intention to act wrongfully (dealt with in substance below), it was contended that the Judge was acceding to an argument which was not pleaded (in the statement of claim or reply), not verified by affidavit (as required by O.14 r.2(1)), not supported by evidence and not raised in the plaintiff’s skeleton before the Judge.

26.I can deal with this ground of appeal briefly. As mentioned, it is not raised in the notice of appeal and there is no application to amend that notice.  More importantly, I do not think there is any substance in the argument.

27.The amended statement of claim clearly pleads (at §11) that the defendants, including the 8^th defendant, had committed unlawful trespass, obstruction or interference with the plaintiff’s right of way.  Particulars of the unlawful acts are set out in the ten incidents pleaded and incident C.10 specifically refers to the activities on 3 April 2011.  There is then pleaded the loss and damage arising therefrom (in §§25 to 27).  It is then pleaded:

“28. By reason of the matters pleaded in Section C.10 above, the Defendants threaten and intend, unless restrained by this Honourable Court, to carry on and repeat the wrongful acts complained of.”

28.Incident C.10 pleaded in the amended statement of claim was relied upon as an indication of an intention to interfere with the plaintiff’s property rights and the threat to continue to take further steps to interfere with the plaintiff’s right of way in order to obstruct the proposed development work is expressly pleaded as the basis for the injunction sought.

29.In the circumstances, it is quite apparent that the plaintiff’s application for injunctive relief against the 8^th defendant was on a quia timet basis: see Spry Equitable Remedies (8^th Ed.) pp. 371-381, to which the Judge referred (Judgment §69(1) at footnote 28).  Whether the facts pleaded justified the grant of injunctive relief is the subject of the second ground of appeal, to which I shall now turn, but there is no question, in my view, that a proper cause of action has been pleaded against the 8^th defendant and there is no substance in the first ground of appeal.

Was there a case for a quia timet injunction?

30.The 8^th defendant’s second ground of appeal is that, on the facts, the Judge was not justified in drawing the inference that he had evinced an intention to carry out wrongful acts to interfere with the plaintiff’s property rights such that the grant of injunctive relief was warranted.

31.In this regard, the 8^th defendant’s case is that the facts disclose only that:

(1)   He participated in the rally on 3 April 2011, which was a Sunday, but did not participate in any other activity complained of by the plaintiff in the amended statement of claim.

(2)   The public gathering took place right outside the construction site.

(3)   He attended the rally on the invitation of some owners and residents of flats in Mei Foo who organised the rally.

(4)   Other well-known representatives of political parties were also present.

(5)   Some of those politicians were invited to and did make speeches to support the campaign but he did not do so.

(6)   At about 4 pm, at the invitation of the organizers, the participants in the rally, including the 8^th defendant, lay down on the ground on the Access Road near the plaintiff’s construction site for three minutes as a sign of protest.

(7)   The whole event took place peacefully and in an orderly manner and in the presence of the police.

(8)   The organisers of the event had duly notified the Commissioner of Police about the public meeting and procession and the Commissioner had issued a notice of no objection thereto.

(9)   Throughout that time, there were no lorries and no workers at or near the construction site attempting to access the Property so that no vehicle or worker was in fact obstructed from accessing the construction site.

(10)   The pedestrian pavement next to the construction site was not cordoned off and was freely accessible to all.  The residents of Mei Foo have used the Access Road and pedestrian pavement for access to a park, now called the Lai Chi Kok Park, for 30 years without interruption.

32.In the circumstances, it was contended on behalf of the 8^th defendant that the plaintiff failed to establish any wrongful conduct on the part of the 8^th defendant to support a case of unlawful trespass and/or obstruction of its right of way to prevent the plaintiff from carrying out the construction work and developing the property.

33.Instead, the 8^th defendant’s case was that the Judge having rightly pointed out that “the evidence does not show that the 8^th to 10^th Defendants had carried out any acts that had infringed the Plaintiff’s right over the use of the Access Road” (Judgment §69(3)) that should have been the end of the matter and he should not have gone on to accept the submissions for the plaintiff that “the 8^th to 10^th Defendants have evinced an intention that they would well carry out such wrongful acts to interfere with the Plaintiff’s right for reasonable use of the Access Road” (ibid.).

34.The principles governing the grant of quia timet (literally “since he fears”) injunctions were not in dispute below, nor are they disputed on appeal.  These are conveniently set out in Spry (supra) and Mr Benjamin Yu SC, leading counsel for the plaintiff,[3] summarised the relevant principles as follows:

(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 (p. 379);

(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 (p. 380);

(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 (p. 380);

(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 (p. 381);

(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 (p. 381).

35.The Judge set out his analysis as to how the plaintiff had discharged its burden in relation to the grant of quia timet injunctive relief in paragraph 69(3) of the Judgment (see above).  The 8^th defendant attacks each step of that analysis in this appeal.

36.First, it is contended that the Judge was wrong in holding that the description of the 7^th defendant referred to “those who have infringed or are to infringe the Plaintiff’s right over the Property, or its right of way over the Access Road” (Judgment §69(3)(a)).  The description, it is contended, clearly refers only to those persons who had already infringed the plaintiff’s rights.  It was contended that it was a further quantum leap for the Judge to hold that the 8^th to 10^th defendants’ conduct in identifying themselves to be the 7^th defendant showed they “have had such an intention or threatened to carry out the wrongful acts” (viz. “to interfere with the Plaintiff’s right for reasonable use of the Access Road”).

37.As to the description of the 7^th defendant, I do not consider that the Judge was wrong to read that as referring to those intending to infringe the plaintiff’s rights as well as those who had already infringed those rights.  The description of the 7^th defendant in the writ is not to be read wholly in isolation to the pleading endorsed on that writ.  It is clear from the content of the amended statement of claim that follows that the description of the 7^th defendant relates and refers to those persons who not only have interfered with the plaintiff’ right of way over the Access Road but also to those who threaten to do so.

38.In my view, that also disposes of the submission of Mr Lee by reference to the fact that the Judge had rightly noted (Judgment §§56 and 59(1)) that there is a pedestrian pavement section within the Property and alongside the Access Road which is open to the public to use lawfully.  Mr Lee submitted that, since there would be ongoing lawful use of that pedestrian pavement section by members of the public, for example by a dog owner walking his dog along the pavement, there was no risk of irreparable harm to the plaintiff such as to justify injunctive relief.  The description of the 7^th defendant, however, is clearly not directed towards an innocent user of the pavement any more than it is directed towards only those persons who only participated in the lawful rally on 3 April 2011 and no more.  The argument of lawful user of the Property is also raised in the context of a challenge to the width of the injunction, which I shall address below.

39.Mr Lee submitted that, in any event, the 8^th defendant’s identification with the 7^th defendant could not support any inference that he was intending or threatening any unlawful activity as against the plaintiff.  In support of this, Mr Lee took the Court to the transcript of the hearing before Deputy Judge Au-Yeung on 29 April 2011 and submitted that the 8^th defendant had identified himself as the 7^th defendant in order to ensure that the category of protesters within the description of the 7^th defendant who had not committed any unlawful act and who had merely lawfully participated at the rally on 3 April 2011 – this being the category in which the 8^th defendant put his own case – were not unrepresented in the proceedings.

40.However, I do not regard this rather fine distinction to be borne out by the facts looked at in context.  In the first place, the transcript does not support this distinction.  Secondly, and more importantly, at the time of the hearing on 29 April 2011 there was a clear dispute as between the plaintiff on the one hand, contending it had a right to develop the Property without interference, and the defendants (then the 1^st to 6^th defendants and the 7^th defendant), denying the plaintiff’s right to do so and asserting a countervailing right to prevent that development taking place.  It was in that context that the 8^th defendant identified himself as the 7^th defendant and, to use Mr Yu’s description, “took up the cudgels” on behalf of the 7^th defendant as against the plaintiff in order to “champion their cause”.  Further, it is telling that at a subsequent hearing on 30 May 2011, when the plaintiff applied for leave to appeal against the Deputy Judge’s refusal of injunctive relief and to join the 8^th to 10^th defendants as named defendants, the joinder application was opposed by the 8^th defendant.  As Mr Yu submitted, it is not clear why the 8^th defendant would have opposed this joinder in his own name (as opposed to continue to remain as a party to the action as one of the three representatives of the 7^th defendant) if he did not wish to be associated with the 7^th defendant.

41.I do not therefore accept that the Judge was in error in relying on the fact that the 8^th defendant had identified himself to be one of those described as the 7^th defendant in support of the inference he drew as to the risk of harm to the plaintiff if the injunction were not granted.

42.In the circumstances, I also do not agree that the Judge posed an irrelevant question in paragraph 69(4) of the Judgment when he asked why, if the 8^th defendant was not properly within the description of the 7^th defendant, he had voluntarily identified himself as such.  That question was a highly pertinent question and one which, in my view, the Judge correctly posed.  I would observe, moreover, that it would seem rather odd for the 8^th defendant, who was legally represented at the time by leading counsel, to have identified himself as being the 7^th defendant if this were not in fact accurate.

43.Secondly, it is contended on behalf of the 8^th defendant that the Judge’s reasoning in paragraph 69(3)(b) of the Judgment was wrong in relying on a failure to deny an intention to carry out wrongful acts.  It was contended that this amounted to a reversal of the burden of proof which rests on the applicant for a quia timet injunction (see Spry (supra) at p. 379 citing Royal Insurance Co Ltd v Midland Insurance Co Ltd (1908) 26 RPC 95 per Cozens-Hardy MR at p. 97).

44.Mr Lee submitted that there was no evidence that the 8^th defendant had participated in any other activity organised by the protest group apart from the one rally on 3 April 2011.  Accordingly, it was submitted, the Judge’s use of the plural “activities” in paragraph 69(3)(b) of the Judgment was wrong and showed a significant misapprehension of the facts.

45.I am unable to accept these contentions.

46.The plaintiff’s case against the 8^th defendant included not only his participation in the rally on 3 April 2011 but also the fact that he filed a defence confirming that he participated in that rally to protest against the plaintiff’s proposed development of the Property (Defence §9) and alleging that he did so in exercise of his constitutional rights.  He also opposed the application for the injunction and filed an affidavit in which he again confirmed that he was present at the rally on 3 April 2011 to support the protest.  He opposed the O.14 application even after the 1^st to 6^th defendants had consented to judgment and appeared by counsel to argue against the grant of injunctive relief, which was clearly put on the quia timet basis, i.e. that he threatened to continue to participate in activities such as the rally.  By all these actions, the 8^th defendant had clearly associated himself with the case of the 7^th defendant.

47.Further, the activities of the protest group were not limited to the one rally on 3 April 2011 but included the other activities in March 2011 that had culminated in that rally (see Judgment §44) and also the subsequent activities that had taken place after the issue of proceedings (see Judgment §47).  As the Judge noted in those paragraphs:

44.   Since March 2011, every time when the workers and vehicles of Plaintiff’s contractor attempted to access and enter the Property to commence foundation works, they were repeatedly prevented from so doing by a large group of individuals of the Protest Group.  The Protest Group organised these individuals into shifts to monitor the Access Road and the Property, so that whenever there was an attempted entry they could and did quickly mobilise themselves into a human barricade to block the Access Road.  Some even resorted to lying on the ground or sitting underneath construction vehicles or equipments to create obstructions.  Evidence also shows that in some instances, they also trespassed onto the Property.  Amongst those who participated in these incidents were the 1^st to 6^th Defendants, whom the Plaintiff was able to identify.

(Footnote omitted)

…

47.   After issuance of proceedings:

(1)   On 25 April 2011, some 100 individuals identified themselves to the press at a rally as the 7^th Defendant. Some of them wore masks to avoid being identified.

(2)   On the return day of the Injunction Summons on 29 April 2011, over 100 persons turned up in court claiming to be the 7^th Defendant, but after the learned Deputy Judge explained to them the consequences of so claiming (including the possibility of being joined as parties and costs consequences), only the 8^th to 10^th Defendants came forth to identify themselves as the 7^th Defendant.

(3)   When the Plaintiff’s contractor made further attempts to enter the Property on 18 and 19 May 2011, it was again blocked by a group of individuals, many of whom wore masks to avoid being identified.

(4)   Likewise, when the Plaintiff’s contractor tried to enter the Property again on 9 November 2011, it was stopped by a group of individuals with their faces covered.

(5)   Tents and a barrier have been erected and manned by the Protest Group to obstruct the entrance to the Property since the commencement of these proceedings.”

48.In my view, there was therefore no reversal of the burden of proof as alleged.  Instead, I accept that the plaintiff had discharged its prima facie burden for the injunction and it was for the 8^th defendant to adduce contrary evidence to demonstrate that his intention was otherwise than to continue to participate in acts to interfere with the plaintiff’s rights.  I accept the submission of Mr Yu that it was in this context that the issue of the absence of an undertaking or statement from the 8^th defendant that he would not carry out wrongful acts arose.  Such an undertaking or statement would carry evidential weight to rebut the finding of an intention to cause damage to a plaintiff. A recent example of the relevance of such a statement justifying the refusal of a quia timet injunction can be found in London Borough of Islington v Elliot [2012] EWCA Civ 56 at §40.

49.Thirdly, it is contended that the Judge was wrong in placing reliance on the assertion of constitutional rights to participate in support of the demonstrations and rallies organised by the protest group over the Access Road. Mr Lee submitted that the 8^th defendant had only claimed it was his constitutional right to participate in support of the rally, which was lawful and peaceful, and not any unlawful demonstrations and rallies organised by the protest group.  There was no evidence of the 8^th defendant having participated in the earlier unlawful rallies which had the effect of interfering with the plaintiff’s right to use the Access Road.  In sum, the 8^th defendant’s evidence, if properly analysed and understood, could not possibly support the Judge’s conclusion that “if not restrained, there is a real risk that [the 8^th defendant] would carry out such wrongful acts in the future” (Judgment §69(3)(c)) so that the plaintiff completely failed to discharge its burden of proving such a real risk.

50.Notwithstanding the submissions advanced on behalf of the 8^th defendant, I am satisfied that the Judge was correct in reaching the conclusion that the 8^th defendant had evinced an intention to carry out wrongful acts to interfere with the plaintiff’s right of reasonable use of the Access Road so that the grant of an injunction was justified and there was no defence to the claim for such relief.

51.I have already alluded above to the fact that, in my view, the plaintiff had discharged its prima facie burden for the injunction and, that being the case, it was for the 8^th defendant to adduce contrary evidence to demonstrate that his intention was otherwise than to continue to participate in acts to interfere with the plaintiff’s rights. In this context, the surprising answer that the 8^th defendant had identified himself as being within the description of the 7^th defendant by mistake is one which stretches credulity.  But even if one ignores that answer, the actions of the 8^th defendant showed clearly that he was associating himself with the 7^th defendant and had taken up their cause in opposition to the plaintiff’s proposed development.  Further, there was no contrary evidence to demonstrate that an inference of an intention to participate in further rallies and protests which would amount to an unlawful interference with the plaintiff’s rights was not justified.  In this context, it is relevant to recall the Judge’s findings: that the plaintiff had a legal right of way over the Access Road; that there was no prescriptive right of way over the Property including the pedestrian walkway; that the plaintiff’s right of way had been substantially interfered with by the protests and those who participated in them, whose intention was to stop the plaintiff from building on its Property.  The ongoing activities that had already taken place after the issue of proceedings but before the hearing before the Judge were described in paragraph 47 of the Judgment (which I have quoted above).

52.On the basis of the evidence before him, I am satisfied that the Judge was fully justified in reaching the conclusion that there was a real risk that the 8^th defendant would carry out such wrongful acts in the future if not restrained.

Was the 8^th defendant merely exercising a constitutional right?

53.The Judge rejected the argument advanced on behalf of the 8^th defendant that he was merely exercising his constitutional right of freedom of expression and assembly.  His reasoning is set out in paragraph 61 of the Judgment as follows (omitting the footnote):

“61. For the Constitutional Rights Defence, I would similarly reject it as it does not raise any arguable defence in the present circumstances:

(1) As said by A Cheung J (as he then was) in HKSAR v Au Kwok Kuen, the right of peaceful assembly and the right to freedom of expression stopped, so far as physical or geographical limits were concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter.

(2) The Property and the Access Road (and the other access roads within Mei Foo) are private properties. In my view, this case is purely a matter of a contest between the parties on their respective private rights over the use of these private properties. It has nothing to do with these constitutional rights.

(3)     The mere fact that if any of the 7^th Defendant were invited by the residents or owners in Mei Foo to join the rally and thus use the Access Road makes no difference.  The extent and scope of their rights to use these access roads, as invitees or guests, cannot be greater than the private rights enjoyed by their hosts.  And I have already said above that the 1^st to 6^th Defendants’ acts of preventing the Plaintiff to have reasonable use of the Access Road for the purposes of carrying out construction works at the Property are wrongful.”

54.It is contended that the Judge misunderstood the 8^th defendant’s argument which was not the same as that of the 1^st to 6^th defendants.  Whereas what the latter did was alleged to be unlawful, the 8^th defendant was exercising his constitutional right of assembly, of procession and a demonstration at a rally which was undoubtedly lawful, peaceful and orderly.

55.I do not think this is a distinction with any material difference. No issue was taken below or in this court with the proposition deriving from HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371 that the right of assembly and the right of freedom of expression are not absolute and cannot override the constitutionally entrenched rights to protection of property: see per A. Cheung J (as the Chief Judge then was) at §§25 to 28 and 30.

56.Mr Lee submitted that the Judge failed to appreciate that the case of Au Kwok Kuen is distinguishable from the present case in that the former case concerned private residential property which was entered by protesters without the permission of any of the residents of that property, whereas the 8^th defendant and others were invited by some of the residents and owners of individual units in Mei Foo to demonstrate peacefully on 3 April 2011 over the private roads inside Mei Foo “which were semi-public in nature”.

57.I do not agree that the case of Au Kwok Kuen is distinguishable as contended for.  Instead, I accept the submissions of Mr Yu that the alleged distinction is unsustainable for two reasons.

58.First, the distinction is erroneous as a matter of fact.  The two plots comprising the Property are private property belonging to the plaintiff. Even if part of the Property has been used as a pedestrian walkway, absent the establishment of a right to use it adverse to the right of the plaintiff (which argument was rejected by the Judge and is not the subject of appeal), the plaintiff is entitled to insist on its rights as a landowner.

59.Secondly, the distinction based on the “semi-private” nature of the Access Road does not, in my view, lead to the conclusion that the principles in Au Kwok Kuen are inapplicable.  As Lam JA (sitting in the Court of First Instance) recently held in Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556 (at §49):

“… there is a spectrum in terms of the character of a place: private residential property, private commercial building, large shopping mall or shopping centre where the public had been invited to congregate freely and as such can be said to have acquired a public character, buildings used by the Government which are open to the public only upon application … and Government buildings or premises which are generally open to the public without any application. Different considerations apply with regard to different places in the spectrum. It is not simply a dichotomy between public places and private properties.”

60.I would respectfully concur in this approach. But whatever point in the spectrum one places the Access Road in this case, and even if one assumes part of the plaintiff’s Property has a public character, it cannot be either necessary or proportionate for the 8^th defendant to insist on infringing the plaintiff’s private property rights by exercising his right to assemble at the point in the Access Road where the effect of such assembly would be to prevent the plaintiff’s lawful exploitation of the Property by its development.  As was held in Au Kwok Kuen (at §37):

“… in the context of Hong Kong at least, by the nature of things, it is next to impossible to imagine a situation where not to permit entry to a private residential development to exercise the right of assembly or the right to freedom of expression would be tantamount to depriving those intending to exercise such rights of any opportunities to exercise them in any meaningful manner, thereby amounting to an effective denial of the rights. In Hong Kong, opportunities to exercise those rights in public places, including the public street that Shuk Yuen Building faces, … abound.”

61.In the circumstances, I have no hesitation in reaching the conclusion that the purported distinction of Au Kwok Kuen is a point without substance.

Width of, and necessity for, injunction?

62.Even if the injunction was properly granted, the 8^th defendant sought to challenge the width of the terms of the injunctive relief.  It was contended that the terms were wider than justified in that the basis of the plaintiff’s injunction application was that the wrongful acts of the defendants, including the 8^th defendant, had prevented the plaintiff’s workers and vehicles from entering into and carrying out works on the Property, yet the actual wording of the injunction would restrain all persons, including the residents of Mei Foo, from, for example, walking a dog along the pedestrian pavement forming part of the Property or driving a car along the part of the Access Road within the Property, which were both semi-public areas which had always been used by residents of Mei Foo without restriction or interruption.

63.The short answer to that contention is that, on a proper reading of the injunction order, it does not restrain the lawful activities contemplated, such as dog walking or using part of the Access Road for vehicular access.  Such use of part of the Property would be use with the consent of the plaintiff.  That is to be contrasted with the description of the 7^th defendant, who are persons entering and remaining on the Property “without the consent of the plaintiff”.  Furthermore, neither of those activities would have the effect of preventing the plaintiff from access to the Property and from developing the Property and would therefore not be the target of the injunctive relief.  In my view, a proper construction of the wording of the injunction is that it does not restrain such lawful use of the Property.

64.In the course of his submissions, Mr Lee also argued that, once the 1^st to 6^th defendants had consented to the injunction granted against them and once the Judge granted an interlocutory injunction against the 7^th defendant, there was no longer any necessity for injunctive relief against the 8^th defendant who, he submitted, had never stated that he would carry out any wrongful act. He relied on London Borough of Islington v Elliot (supra) at §§36, 38 and 40 in support of the requirement of necessity for injunctive relief and that such necessity was to be determined in the light of the relevant circumstances known at the trial.

65.The argument as to necessity for the injunction can similarly be disposed of shortly.  It was not raised in the notice of appeal as a ground of appeal against the Judge’s exercise of discretion in granting the injunctive relief in favour of the plaintiff, nor was it argued before the Judge below.  Mr Yu submitted that, if this argument had been raised below, the plaintiff would have wished to file evidence to demonstrate that after the 1^st to 6^th defendants had agreed to an injunction against them the plaintiff had written to the 8^th defendant asking him to concede in the same manner and that he had refused.  In the circumstances, it is not an argument that the 8^th defendant should be permitted to raise, for the first time, in this Court.

Conclusion

66.For the reasons set out above, I would reject the 8^th defendant’s contention that the plaintiff failed to discharge its burden to show that there was a real risk or strong probability of irreparable harm having regard to all the relevant circumstances before the Judge.  In my view, the Judge was right to grant the plaintiff an injunction against the 8^th defendant in the terms he did.

67.I would therefore dismiss this appeal.

68.I see no reason why costs should not follow the event and I would therefore make an order nisi that the 8^th defendant pay the plaintiff’s costs of the appeal, to be taxed if not agreed, with a certificate for two counsel.

Hon Lam JA:

69.I agree with the judgment of Fok JA.  Since we were told that this is the first case in which the practice of using a description without naming any individuals is adopted in the nomenclature of the 7^th defendant in an action other than Order 113 proceedings or admiralty proceedings, I wish to say a few words on such practice though we have not heard any submissions before us as there is no appeal from the 7^th defendant.

70.The Judge discussed the validity of such practice at paras 49 to 56 of his judgment.  As presently advised, I agree with his analysis.  I cannot see any valid reason why Hong Kong should not adopt such practice (a practice endorsed by the Vice Chancellor in Bloomsbury Publishing plc v News Group Ltd [2003] 1 WLR 1633) when the circumstances of the case demand legal redress of a plaintiff’s interest against a large number of unidentified persons by way of injunctive relief.

71.It is but a small step from a similar procedure which is well established, viz by suing one person as the representative of a group of defendants without naming each and every in that group under Order 15 Rule 12, see EMI Records Ltd v Kudhail [1985] FSR 35.  Those who come within the group are identified by a generic description rather than being named individually.  There are safeguards in that procedure to protect the legitimate interests of those unnamed defendants, see Order 15 Rule 12(3) to (6).  In addition, the group or class of persons so represented must be clearly defined and the commonality of interest of those falling within the group or class has to be constantly reviewed, see Hong Kong Kam Lan Koon Ltd v Realray Investments Ltd (No 2) [2005] 1 HKC 565 at para 17.

72.In his comparison of the English rules with those in Hong Kong, Au J referred to our Order 1A rules 1 and 2 and Order 2 rule 1.  I would also add that our Order 1 Rule 9 is the equivalent of the English rule 4(1) which the Vice Chancellor referred to in Bloomsbury Publishing  plc v News Group Ltd [2003] 1 WLR 1633 para 16.  The analysis by the Vice Chancellor in that case is therefore equally applicable in the setting of our rules.  As His Lordship observed at para 19,

“The overriding objective and the obligations cast on the court are inconsistent with an undue reliance on form over substance.”

73.There must also be proper safeguard for the description of the class or group of persons named in a generic manner.  The Vice Chancellor said at para 21,

“The crucial point, as it seems to me, is that the description used must be sufficiently certain as to identify both those who are included and those who are not. If that test is satisfied then it does not seem to me to matter that the description may apply to no one or to more than one person nor that there is no further element of subsequent identification whether by service or otherwise.”

74.I can see that there can be situations where this new practice would be useful in an application for injunction.  But the court has to be vigilant in the following respects,

(a)   The proper description of the unnamed defendants to satisfy the above test of certainty;

(b)   The court must be satisfied that the nomenclature of defendants in such a manner would not prejudice the rights of those potentially affected by whatever orders the court may make from being notified about the court proceedings and from appearing in court to defend their rights if they so wish;

(c)   Proper directions must be given for proper service of the proceedings and notification to those who may be affected of the time frame for joining in as named parties and to put forward their defences;

(d)   If no-one comes forward to resist the application of the plaintiff against a group of unnamed defendants, the court should consider whether caveats similar to those in Order 15 Rule 12(3) to (6) should be built into any relief it may grant (including order of costs) other than orders for injunctive relief.

75.In the present case, the same result may be achieved by naming the 1^st to 6^th defendants as the representatives of the 7^th defendant by reference to Order 15 Rule 12.  Be that as it may, the 8^th defendant chose to appear as a representative of the 7^th defendant and he must accept the consequences of such appearance for the reasons given in my Lord’s judgment.  I agree that the appeal should be dismissed.

Mr Benjamin Yu SC & Mr Elliot Fung, instructed by Mayer Brown JSM, for the Plaintiff/Respondent

Mr Martin Lee SC, Ms Jocelyn Leung and Mr Richard Yip, instructed by JCC Cheung and Co., for the 8^th Defendant/Appellant