Turbo Top Ltd v. Lee Cheuk Yan and Others

HCA 694/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 694 OF 2013

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D E C I S I O N

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The background facts

1.For over two weeks since 17 April 2013, the dock workers at the terminals in Kwai Chung and Tsing Yi operated by Hongkong International Terminals Limited (“HIT”) who are on strike have, together with people supporting them, staged protest activities outside the Cheung Kong Center building (“the building”) in Central.  They have set up canopies, tarpaulin shelters and tents and posted up banners and placards there to protest and hold demonstrations.  It appears that one of the reasons for them to do so there is that Hutchison Whampoa Limited (“HWL”) has an indirect 27.6% interest in HIT and HWL’s Chairman (Mr K S Li) and Deputy Chairman (Mr Victor Li) have offices in the building (though the offices of HWL itself are in Hutchison House rather than the building).

2.On 24 April, a group of 21 persons evaded the security guards and went inside the building and demonstrated at the reception area on the seventh floor which is occupied by Cheung Kong (Holdings) Limited. On the same day, another group of persons tried to pass through the iron railings to gain access into the building, resulting in injuries to one of the building’s management staff.

3.The plaintiff is an indirect wholly owned subsidiary of HWL and the grantee of Inland Lot No 8887 (“the Lot”) on which the building stands.  The Lot includes certain open space around the building.

4.On 25 April, the plaintiff issued the writ of summons in these proceedings and, at about 6 pm, appeared before Pang J (the Duty Judge) on an ex parte (on notice) application for an urgent interlocutory injunction.  None of the defendants appeared in court on that occasion.  The judge indicated he was not prepared to grant an injunction ex parte unless it was of a limited extent preventing the protestors merely from entering into the building.

5.The plaintiff accordingly amended their application overnight, and appeared before Pang J again on 26 April at 2:30 pm.  The defendants were not notified of this hearing.  The judge granted the injunction then sought, which restrained the defendants from entering into the building and parading, protesting or demonstrating inside the building.

6.On the same day, the plaintiff issued an inter partes summons seeking an interlocutory injunction until further order to restrain the defendants from, inter alia, parading, protesting or demonstrating and from keeping any tentage, canopies and other temporary structures anywhere on the Lot. 

7.On 30 April, the plaintiff took out a summons for leave to amend their inter partes summons, so as to seek in addition a mandatory injunction requiring the defendants forthwith to remove all tents, canopies and similar such temporary structures.  The Writ was amended on the same date.  As amended, the Writ claims possession of the relevant areas, an injunction preventing protests and demonstrations within the Lot and the installation of temporary structures there, an order for removal of such temporary structures, and damages for trespass and nuisance.

8.Last Friday, 3 May, was the return date of these two summonses.  At the beginning of the hearing I granted the amendment sought.  The application argued before me was therefore the amended summons for injunction.

9.Mr Westbrook who appears on behalf of the plaintiff confirms that, so far as the plaintiff is aware, the injunction granted by Pang J has not been breached, and that the conditions at the site have to that extent improved since 26 April.

10.The canopies and tents of the defendants are now concentrated in certain areas outside the north entrance of the building, two areas along Queen’s Road Central (one of which apparently lies outside the Lot), and an area on the upper ground floor of the development.

11.According to an affirmation filed by the plaintiff on 2 May, the defendants have continued to use those locations as their “protest base camp” and have carried out the following activities there: fund-raising and distribution of subsidy funds to the striking dockers, assembly and large-scale rallies, press conferences, staying and sleeping in tents overnight, and also puppet shows and family gatherings.

The defendants

12.I should now say a few words about the identity of the defendants.  The 1^st defendant is the General Secretary of the Hong Kong Confederation of Trade Unions and a member of the Legislative Council of Hong Kong representing the New Territories West constituency.  The 2^nd defendant is the Organising Secretary of the Union of Hong Kong Dockers.  The 3^rd defendant is a worker at HIT.  The 4^th defendant is an officer of the Union of Hong Kong Dock Workers. The 5^th defendant is an officer of the Hong Kong Confederation of Trade Unions.  The 6^th defendant is not a specific individual but named as a group of unidentified persons being “persons forming a group of demonstrators entering or remaining without the consent of the plaintiff at Cheung Kong Center, 2 Queen’s Road Central and/or other persons hindering or preventing access to or egress from Cheung Kong Center and/or the adjacent carparks and open spaces owned by the plaintiff”.

13.The 1^st defendant has appeared before me in person.  The 2^nd to 5^th defendants were granted legal aid shortly before the hearing.  Mr Gerard McCoy SC and Ms Miranda Li, who were instructed only at about 6 pm on 2 May, appeared on behalf of the 2^nd and 3^rd defendants. Mr Carter Chim appeared on behalf of the 4^th and 5^th defendants. They submitted urgently prepared written skeletons to me on the morning of 3 May and made brief oral submissions at the hearing.  No affirmation has been filed on behalf of the defendants.

Interlocutory application

14.This is of course an application for an urgent interlocutory injunction.  This is not the occasion for the court to adjudicate finally on the rights and obligations of the parties.  The principles applicable in relation to interlocutory injunction are not in dispute.  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.

Trespass

15.Mr Westbrook puts on the plaintiff’s case on the basis of trespass and nuisance, but I think it is fair to say that his principal case is trespass, on which I shall focus.

16.Relying on cases such as Incorporated Owners of Fu Fai Court v Henble Ltd, HCA 2844/2003, 8 August 2003 and The Church of Jesus Christ and Latter-Day Saints Hong Kong Ltd v Jessica Park, HCA 1167/2001, 8 November 2001, he submits that an owner of property who complains of a trespass is entitled almost as a matter of course to an injunction to restrain the continuance of the trespass.  In particular, Mr Westbrook cites the following passage from the judgment of Deputy Judge Poon (as he then was) in The Church of Jesus Christ and Latter-Day Saints Hong Kong Ltd v Jessica Park, supra, at para 9:

“A landowner whose title was not disputed is prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate. On an interlocutory application, such an injunction should, in the absence of exceptional circumstances, be granted unless the defendant satisfies that court that there was an arguable case that she has a right to do that which the plaintiff alleged to constitute a trespass. Only if such the defendant could show such an arguable case should the court go on to consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy: Patel & others v. WH Smith (Eziot) Ltd & another [1987] 1 WLR 853, English Court of Appeal, followed in Lea Tai Property Development Ltd v. Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193, CA.”

17.That this is so in the ordinary case is not a principle in dispute.  But in the passage quoted above, as well as in the judgment of Balcombe LJ in Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853 at 858E relied on in many subsequent cases, the premise is that the title of the landowner is not in issue.  In this connection, it is necessary to examine more closely the terms on which the plaintiff holds the land.

18.It is not in dispute in this case that the plaintiff is the owner – or rather – a co-owner of the Lot.  The lease of the Lot was granted to the plaintiff by Particulars and Conditions of Exchange No 12416 dated 4 November 1996.  In December 2007, the Lot was notionally divided into 205,908 undivided shares, of which the plaintiff assigned 975 shares to the Financial Secretary Incorporated, as there is government accommodation on the Lot (including a post office and public lavatories).  The plaintiff and the Financial Secretary Incorporated have since been co-owners of the Lot.

19.The right of the plaintiff to control the relevant parts of the Lot is very much in issue in this action.  The activities of the defendants that the plaintiff seeks to have enjoined have been carried on in those parts of the Lot that fall within what is referred to in the Conditions of Exchange as “Public Open Space” (which I shall simply call “Open Space”).  (There is also a relevant area along Queen’s Road Central outside the car park entrance to Cheung Kong Center which appears to be outside the Lot or in the Government’s possession.) 

20.Special Condition (13) of the Conditions of Exchange makes provisions for such Public Open Space.  The following clauses of that Special Condition are relevant.

“(13) (a)  The Grantee shall within 72 months from the date of this Agreement at his own expense and in accordance with the plans and programme to be approved by the Director as part of the Landscaping Proposals referred to in Special Condition No. (22) hereof and with such materials, at such location, level and design to be approved by the Director lay, form, provide, construct, surface, illuminate, develop and landscape a public open space with a net total area (excluding any circulation area and public drop-off area) of not less than 5,200 square metres or such other area as the Director may approve in writing (hereinafter referred to as “the Public Open Space”) with such landscaping, structures, lightings, plantings and weather protection measures as the Director shall approve.

(b)  In the event of the non-fulfilment of the Grantee’s obligations under sub-clause (a) of this Special Condition, the Government may carry out all or any of the works therein specified at the cost of the Grantee who shall pay to the Government on demand a sum equal to the cost thereof, such sum to be determined by the Director whose determination shall be final and shall be binding upon the Grantee.

(c)  The Grantee shall be responsible for the maintenance and management of the Public Open Space provided in accordance with sub-clause (a) or sub-clause (b) of this Special Condition and shall observe and comply with the following conditions :-

(i)    The Public Open Space shall be opened to all members of the public for all lawful purposes freely and without payment of any nature at all times except that with the prior written approval of the Director of Urban Services, the Public Open Space or part thereof may be temporarily closed for maintenance or such other purposes as shall be approved by the Director of Urban Services.

(ii)   The Public Open Space shall at all times be maintained and managed by the Grantee at his own expense in all respects to the satisfaction of the Director of Urban Services.

…”

21.It is clearly contemplated under the Conditions of Exchange that the Open Space is for the use of the public, and not an area to be exclusively enjoyed by the plaintiff.

22.Mr Westbrook, however, relies on Special Condition (16)(a) to submit that Special Condition (13) is merely a contractual provision between the plaintiff and the Government and is not enforceable by any member of the public since the public are not a party to the contract.   That clause reads as follows:

“(16)(a) It is expressly agreed, declared and provided that the obligations on the part of the Grantee under Special Condition Nos. … 13(c)(i) hereof arise only as a matter of contract between the Grantee and the Government and that neither the Grantee nor the Government intends to dedicate nor consents to any dedication of the areas referred to in the said Special Conditions to the public for a right of passage.”

23.It follows, Mr Westbrook argues, that the duties of the plaintiff in connection with the Open Space are obligations that arise purely as a matter of contract between the plaintiff and the Government, that the Open Space fully remains the private property of the plaintiff vis-à-vis anyone else, and that the relevant provisions in the Conditions of Exchange provide no defence at all to an action for trespass.

24.That seems to me to be too simplistic a view of the position.  The plaintiff took the grant subject to, inter alia, Special Condition (13).  It is arguable that the lessee is bound to grant and must be taken to have granted a licence to the public to use the Open Space, and that without the consent of the landlord, this licence cannot be revoked without committing a breach of the lease.  This is not simply some jus tertii which is irrelevant to an action for trespass.  It is the basis upon which numerous members of the public come upon the Open Space every day.

25.Moreover, the Lot is, as stated above, co-owned by the plaintiff and the Financial Secretary Incorporated.  As between themselves, the Deed of Mutual Covenant dated 5 December 2007 (“DMC”) allocates exclusive possession in respect of the Open Space to the plaintiff (see Clause 1 of Sub-section A of Section II)[1], but this is subject to the DMC.  Clause (1) of Sub-section B of Section IV (headed “Easements Rights Privileges to which the Owners are Subject”) suggests that such possession is subject to the “easements, rights and privileges” granted to the public as specified in Clause (3)(d) of Sub-section A of Section IV, which is in the following terms:

“The Open Space shall at all times throughout the term of the Grant be open to all members of the public for all lawful purposes freely and without payment of any nature except that with the prior written approval of the Director of Food and Environmental Hygiene, the Open Space or part thereof may be temporarily closed for maintenance or such other purposes as shall be approved by the Director of Food and Environmental Hygiene.”

26.It seems to me quite arguable on the basis of the DMC that the plaintiff and the Financial Secretary Incorporated have as co-owners granted a licence to the public to use the Open Space.  They have further agreed that as between themselves the plaintiff is to have possession of the Open Space (until the assignment to the Financial Secretary Incorporated of the undivided shares attributable to the Open Space).  Such possession is however subject to the rights of the public under the licence. 

27.If so, this licence cannot be unilaterally revoked by either one of the co-owners.  It has been held by the Court of Appeal in Hong Kong that a licence granted by one tenant in common to occupy the co-owned property on a non-exclusive basis cannot be terminated by another tenant in common without his consent, and that a licensee permitted by one tenant in common to be on the land on a non-exclusive basis cannot be sued for trespass by another tenant in common: Chin Lan Hong v Cheung Poh Choo [2005] 3 HKLRD 811 para 35.  I do not think that the position would be altered by the fact that one co-owner has agreed that the other is to have possession of the property subject to such licence.

28.Further, it seems to me that section 26 of the Conveyancing and Property Ordinance (Cap 219) may also be relevant.  It provides:

“A person may take an immediate or other interest granted to him in land or the benefit of any condition, right of entry, covenant or agreement granted to him over or in respect of land, although he may not be named as a party to the instrument.”

However, since section 26 has not been mentioned at the hearing, I do not rest my analysis on this provision.

29.Returning to Mr Westbrook’s argument, it seems to me that Special Condition (16) of the Conditions of Exchange is intended to ensure that there is no dedication of the Open Space (and other specified areas) to the public, so as to prevent a public right of way from arising by dedication and acceptance, which would potentially be a permanent property right binding on both the Government and the grantee.  It does not mean the public has no licence to use the Open Space at all.

30.In any event, when it comes to the question of the exercise of the rights of assembly and of demonstration (to which I refer below), it is the substantial character and practical function of the place that matters.  From that perspective, it seems to me at this stage that, irrespective of the niceties concerning the precise legal status of the land in question, the Open Space has taken on the character of public space accessible to every person in Hong Kong without let or hindrance.  It lies, in my view, towards the public end of the “spectrum” of the character of a place referred to by J Lam J (as he then was) in HKSAR v Leung Kwok Wah [2012] 5 HKLRD 556 at para 49.

31.Accordingly, I do not therefore think that this is a case where the principle in Patel v W H Smith Ltd, supra, applies, so that the Court should as a matter of course issue an injunction even at an interlocutory stage to restrain the acts complained of.

“for all lawful purposes”

32.There is no evidence of the position of either the Government as landlord or the Financial Secretary Incorporated as co-owner of the Lot as regards the activities of the defendants.  I shall refer to the stance of the police below but I do not think it can be taken to represent the stance of the landlord or the co-owner.  Nevertheless there is nothing to suggest that they have resiled from the position as stated in Special Condition (13)(c)(i) of the Conditions of Exchange and Clause (3)(d) of Sub-section A of Section IV of the DMC.

33.It seems to me that in these circumstances there is at least an argument that the Open Space is by licence open to all members of the public at all times throughout the term of the grant “for all lawful purposes”.  On this basis, in order to establish any trespass by the defendants, it would be incumbent upon the plaintiff to show that they have exceeded the terms of the licence.  Indeed, the plaintiff does contend that the defendants’ activities carried on in the Open Space are unlawful acts.

34.In what way are they said to be unlawful? First, the plaintiff says that the activities constitute tortious acts because the defendants have trespassed on the plaintiff’s property.  It seems to me, however, that this begs the question whether the defendants are there for lawful purposes.  This argument takes the analysis no further.

35.It seems to have been suggested by the plaintiff at one stage that the Open Space is made available to the public as a thoroughfare and the permissible and lawful activities there are confined to passing and repassing.  That however is not what the Conditions of Exchange and DMC provide in relation to Open Space. They refer to its being open to the public “for all lawful purposes”.  This may be contrasted with the provisions about other special areas in the Lot such as “Passage Way” (Special Condition (10)(g)) and “Pink Hatched Black Area” (Special Condition (9)(d)), which do confine the permitted acts thereon to passing and repassing.  There is no warrant, in my view, to restrict the meaning of “all lawful purposes” in the provisions relating to Open Space to passing and repassing.

36.Further, the plaintiff contends that the defendants’ activities in the Open Space including the erection of tents and canopies there prima facie amount to an offence under sections 4(23), 4(28) and 4A the Summary Offences Ordinance (Cap 228). These sections provide:

“4. Any person who without lawful authority or excuse-

…

(23) plays at any game or pastime to the annoyance of the inhabitants or passers-by; or plays at any game or loiters in any public place, so as to obstruct the same or create a noisy assembly therein;

…

(28) does any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place or to the shore of the sea, or to navigation, mooring or anchorage, transit or traffic;

…

shall be liable to a fine of $500 or to imprisonment for 3 months.”

“4A. Any person who without lawful authority or excuse sets out or leaves, or causes to be set out or left, any matter or thing which obstructs, inconveniences or endangers, or may obstruct, inconvenience or endanger, any person or vehicle in a public place shall be liable to a fine of $5000 or to imprisonment for 3 months.”

37.In the Summary Offences Ordinance, “public place” is defined in section 2 as follows:

“ ‘public place’ includes all piers, thoroughfares, streets, roads, lanes, alleys, courts, squares, archways, waterways, passages, paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the Government or of private persons.”

38.Section 3 of the Interpretation and General Clauses Ordinance (Cap 1) also contains a definition of “public place”, as follows:

“ ‘public place’ means-

(a) any public street or pier, or any public garden; and

(b) any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to which the public have or are permitted to have access.”

39.It seems to me that the Open Space in Cheung Kong Center is prima facie a public place within the meaning of the Summary Offences Ordinance.  Whether or not the defendants’ activities there are unlawful by virtue of sections 4(23), 4(28) and 4A of that Ordinance depends primarily on whether they are obstructing that public place and if so whether they are doing so without lawful authority or excuse.

40.The plaintiff also contends that there may have been breaches of sections 14 and 15 of the Fire Services (Fire Hazard Abatement) Regulation (Cap 95F) and section 9 of the Occupational Safety and Health Regulation (Cap 509A).  These are all concerned with obstruction of means of escape. While at an early stage of the demonstration the building management staff had decided, as a reaction to the protests, to close a number of entrances and exits to the building, which had led to concerns being raised about means of escape, as I understand the position now, none of the exits is closed and no complaint is made that egress from the building is in any way impeded.

41.There is also a suggestion that the storage of fuel for the portable electricity generators brought to the Open Space is a fire hazard and in breach of fire regulations, but the 1^st defendant has stated that all the fuel has been removed and is only brought to the site as and when the generators need to be refilled.

42.The principal question that arises under the Summary Offences Ordinance regarding “lawful authority or excuse” seems to me to be the extent and limits of the defendants’ rights of assembly and demonstration.  I shall touch upon that subject below but it should be understood that this is being done only in the context of assessing the balance of convenience in deciding whether or not to grant an interlocutory injunction.

Balance of convenience

43.As I understand his submissions, Mr Westbrook does not dispute that the defendants’ right of assembly and of demonstration enshrined in Article 27 of the Basic Law is engaged in this case.  In Yeung May Wan v HKSAR (2005) 8 HKCFAR 137, the Court of Final Appeal dealt with a case involving convictions for offences of obstruction under section 4(28) of the Summary Offences Ordinance.  At paragraph 44, Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ stated:

“Where the obstruction in question results from a peaceful demonstration, a constitutionally protected right is introduced into the equation. In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction. While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.”

In a concurring judgment, Bokhary PJ said at paragraph 144:

“The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art. 27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate. As to that, I think that the participants in a large or even massive assembly, procession or demonstration will often be able to say with justification that their point could not be nearly as effectively made by anything on a smaller scale. Subject to this, the most obviously relevant considerations are, I think, how substantial the interference is and how long it lasts. But other considerations can be relevant, too. These include, I think, whether the interference concerned had been recently preceded by another act or other acts of interference on another occasion or other occasions. What the public can reasonably be expected to tolerate is a question of fact and degree. But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable.”

44.Although constitutional rights are engaged in the form of the freedom of assembly and of demonstration, it is not in dispute that these rights are not absolute.  The precise limits to the rights are sensitive to the facts and circumstances of each case: City of London Corporation v Samede [2012] 2 All ER 1039 at para 39.

45.Mr Westbrook says that the injunction sought will not prevent lawful demonstrations and assemblies; it will just prevent them from being held within the grounds of Cheung Kong Center.  That is of course true.  However, the location and manner of the assembly and demonstration may, depending on the facts, be important to the protestors’ cause. It has been held by the Court of Appeal in England that such parameters of a demonstration are within the scope of Articles 10 and 11 of the European Convention on Human Rights, the equivalent provision to Article 27 of the Basic Law: Mayor of London (on behalf of  the Greater London Authority) v Hall [2011] 1 WLR 504.  At paragraph 37, Lord Neuberger of Abbotsbury MR stated:

“The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation. Accordingly, the defendants’ desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11.”

46.He added, however, in paragraph 38 that:

“the greater the extent of the right claimed under article 10.1 or article 11.1, the greater the potential for the exercise of the claimed right interfering with the rights of others, and consequently, the greater the risk of the claim having to be curtailed or rejected by virtue of article 10.2 or article 11.2.”

47.In this case, as already stated, the assemblies and protests have been organised where they are, apparently because HWL’s Chairman and Deputy Chairman have offices in the building.  Further, Mr McCoy says that the location is significant to the dockers “as that area symbolizes the gargantuan wealth of their true employer”.

48.In this context, it is, in my view, important to bear in mind that the demonstrations have arisen in the course of a trade dispute.  The defendants rely on section 46 of the Trade Unions Ordinance (Cap 332) as giving them a lawful basis for doing what they are doing on the Lot.  That section provides:

“Notwithstanding anything in this Ordinance, it shall be lawful for one or more persons, acting on their own behalf or on behalf of a registered trade union or of an individual employer or firm, in contemplation or furtherance of a trade dispute, to attend at or near a place where a person works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working:

Provided that it shall not be lawful if they so attend in such numbers, or otherwise in such manner, as to be calculated to intimidate any person in that place, or to obstruct the approach thereto or egress therefrom, or to lead to a breach of the peace, and any person who acts in contravention of this proviso 0shall be guilty of an offence and shall be liable on summary conviction to a fine of $1000 and to imprisonment for 6 months.”

49.Mr Westbrook submits that the section has no application in this case because Cheung Kong Center is neither at nor near a place where the strikers work or carry on business.  I reject this submission. The statute protects peaceful picketing at or near a place where “a person” works or carries on business.  It does not require that the place must be where the pickets work or carry on business.  Indeed, it took a legislative amendment to the corresponding English legislation which was in similar terms to section 46[2] so as to limit the protection to picketing by a person at or near “his own place of work”: see eg section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992.  The legislation in Hong Kong has not been changed.

50.There is therefore some force in Mr McCoy’s submission that section 46 is prima facie applicable here, given that the dockers are attending at or near a place, namely, the building, where a person, namely, Mr K S Li, works or carries on business, for the purpose of peacefully communicating information, namely, their working conditions and their demand for improvement of those conditions, to him.  On this basis, the location of the demonstrations has particular significance to the defendants, in that they may lose the protection under section 46 if they move elsewhere.

51.Mr Westbrook says that the dockers are protesting at the wrong place against the wrong person because HWL is not the employer of the dockers and anyway if the dockers wish to appeal to HWL, they should demonstrate outside Hutchison House (where HWL’s offices are), not Cheung Kong Center.

52.But likewise section 46 does not authorise attendance only at or near a place where the pickets’ employer works or carries on business (in contrast with overseas legislation such as section 11(1) of the Industrial Relations Act 1990 of Ireland).  The fact that HWL is not the direct employer of the dockers (which I am prepared to assume for present purposes) does not preclude section 46 from applying to picketing against HWL.

53.Moreover, HWL wholly owns Hutchison Port Holdings China Limited, which holds 27.6% of Hutchison Port Holdings Trust.  Cheung Kong (Holdings) Limited holds another 2.45% interest in that trust.  The trust holds 100% of HIT, which is the entity that has apparently entered into “outsourcing” arrangements with contractors who directly employ the dockers.  No other holder in the trust has an interest greater than 27%.  The trust appears to be managed by Hutchison Port Holdings Management Pte. Limited, which is an indirect wholly owned subsidiary of HWL.  There is no dispute that Mr K S Li is the Chairman of HWL, that he is also the Chairman of Cheung Kong (Holdings) Limited which owns just under 50% of HWL, and that he works in his offices in Cheung Kong Center. In these circumstances it seems to me that Mr Westbrook’s “wrong place, wrong person” argument is, to say the least, inconclusive.

54.Mr Westbrook also submits that the dockers are not attending at the site “merely” for the purpose of peacefully communicating information, but are also holding rallies, soliciting donations, among other things.  In my view, the precise purpose of the dockers’ presence there and in particular whether their activities are carried out in furtherance of the trade dispute are not matters that can properly be resolved in this urgent interlocutory application.  In any event, even if there has been an act that exceeded the purpose outlined in section 46, that is not in my view as much a reason for banning the picket altogether as a ground for enjoining that particular act.

55.As for the proviso to section 46, there is no suggestion that the activities of the defendants (at any rate after 26 April) are likely to intimidate anyone, to obstruct the approach to or egress from the building or the Lot, or to lead to a breach of the peace.

56.It should be borne in mind however that even where the section applies, it does not authorise trespass on private property: L. L. Ferguson Ltd v O’Gorman [1937] IR 629, 647; Dublin City Council v Technical Engineering & Electrical Union [2010] 4 IR 667 para 7.  What it does however in the context of this case is, at least arguably, to make clear that the lawful purposes for which the Open Space may be used by the public under the terms of the Conditions of Exchange and DMC extend to picketing activities within the scope of section 46: L. L. Ferguson Ltd v O’Gorman [1937] IR 629, 648, cited with apparent approval by Lord Reid in Broome v Director of Public Prosecutions [1974] AC 587 at 596.

57.Another factor in the present case, highly significant to my mind, is that the demonstrations have by and large been peaceful. It is true that there was some disruptive conduct inside the building on 24 April, but on the plaintiff’s own evidence the persons responsible are members of the Hong Kong Students Union, not the strikers or the trade unionists.  In any event there is no dispute that, after 26 April, the demonstrations have been peaceful.

58.Coupled with this is the fact, which only transpired during the 1^st defendant’s oral submissions at the hearing, that the trade unions had given notice to the Police of the intended public meetings at the site and the Commissioner of Police had issued notices of non-objection under section 11 of the Public Order Ordinance (Cap 245) in respect of public meetings during the period from 20 April to 5 May.  The conditions imposed by the Police include a limit on the number of participants and a requirement for persons to be appointed to maintain safety.

59.It should also be noted that section 11(1) of the Public Order Ordinance imposes statutory requirements on public meetings, breach of which is an offence under section 17A(1)(b), as follows:

“At every public meeting-

(a) there shall be present throughout the meeting either the person who organized the meeting or, if he is not present, a person nominated by him to act in his place;

(b) good order and public safety shall be maintained throughout the meeting;

(c) the control of any amplification device that is used in such a manner that it causes a noise that would not be tolerated by a reasonable person shall, if so required by a police officer, be surrendered to the police officer for the duration of the meeting.”

60.Thus although, as stated above, the stance of the Police cannot be taken to represent that of the Government as landlord or the Financial Secretary Incorporated as co-owner, it does show that the demonstrations and assemblies have been tolerated by the Police from a public order perspective.

61.Another important feature I take into account is that subject to one point I shall mention, there is no obstruction of ingress to and egress from the building, and there is no blockade of pedestrian or vehicular traffic.  While there is bound to be some inconvenience caused to members of the public including in particular those who work in the building and in the vicinity, there is no suggestion that they cannot go about their lawful business because of the defendants’ activities.  In fact, on the evidence, part of the inconvenience complained of by the tenants of the building seems to have stemmed from building management staff’s decision to close most of the entrances, and not directly from the demonstrations themselves.

62.The one obstruction which I should mention is the canopies along Queen’s Road Central near the steps to the upper ground floor (at the location marked H on page 306 of the hearing bundles).  The public walkway there is narrow and the pedestrian traffic is often busy.  Taking into account the interests of the general public I consider that pending the trial the balance lies in favour of clearing that area from tents and canopies and there should be an interim injunction now preventing the setting up of temporary structures there.

63.I recognise that as a result of the defendants’ activities, there is undoubtedly a loss of space within the Open Space for other members of public to enjoy.  But I think that in the balance of convenience during the (hopefully short) period pending the trial of this matter, this loss is one that the public can reasonably be expected to tolerate.

64.There is a suggestion in the evidence that there are fire hazards created by the objects brought on to the site including cans of gasoline and portable generators.  The plaintiff has indeed already made a report to the Fire Services Department.  As mentioned above, I have been assured by the 1^st defendant that the gasoline had been removed.  In circumstances where the plaintiff has not been able to point to any law or regulation that has been breached and no action has been taken by the Fire Services Department, I do not think the assertion in the evidence takes the plaintiff very far.

65.Mr Westbrook places heavy reliance on City of London Corporation v Samede [2012] 2 All ER 1039 (CA) and [2012] EWHC 34 (QB), but it seems to me that the circumstances there are somewhat different from those existing in this case now.  That was a decision after trial, relating to the occupation of 80% of the public highway (governed by the Highways Act 1980) near St Paul’s Cathedral in London by 150-200 camps for 3 months. The action was brought by the City of London.  The occupied area included land owned by the Church and so there was undoubtedly trespass on private property. Furthermore, the presence of the camps breached planning control and an enforcement notice had been served.  The courts also found there was serious interference with the Convention rights of those who wished to worship in the Cathedral.  As the Court of Appeal stated in paragraph 49 of Samede, the “essential point” in that case is that:

“while the protesters’ Article 10 and 11 rights are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely”.

66.Mr Westbrook says there is a fundamental difference between demonstration at a place and occupation of a place.  He says that even if demonstrations are to be allowed there, at the very least the Court should order the removal of tents and canopies and similar temporary structures so as to prevent occupation of the Lot.  In riposte, the 1^st defendant and Mr McCoy disavow being any part of any “occupation movement”.  They argue that the structures are there for practical purposes.  The canopies and tarpaulin shelters have been set up to protect the people there from the elements, and also to function as discussion booths for members of the public to talk to the protestors.  They say that Mr Westbrook’s suggestion that the protestors should use umbrellas instead is impractical in the context of a prolonged picketing and that if those objects are removed, the picketing and demonstration will be brought to an end by exposure to the elements.  It seems to me that this is a matter of fact for the trial.  I do not think that Samede decided there is a rule as a matter of law as a consequence of which tents and canopies must be removed even at the interlocutory stage.

67.The plaintiff submits that the defendants plan to be there indefinitely and in the absence of an injunction they will be there permanently.  For my part, I do not at present see how they can lawfully do that.  Mr McCoy frankly accepts that there can be no “long-term right to impose a location forum for the purposes of their demonstration”.  The 1^st defendant also stresses that the protestors are dockers who would like to end their industrial action and return to remunerative work as soon as the trade dispute is resolved.  The short point, however, is that this is only an application for interlocutory injunction.  Absent an interim injunction, there will still be a trial at which, if still necessary, the plaintiff will press its claim for possession.

68.The plaintiff further submits that under Special Conditions (15)(a) and (19) of the Conditions of Exchange, it is obliged not to allow obstruction of, inter alia, the Open Space.  What Special Condition (15)(a) provides is that “the Grantee shall not in any manner whatsoever obstruct or allow or suffer to be obstructed … the Public Open Space …”.  Whether or not the plaintiff has “suffered” something to be done depends on whether or not it is within its control.  If it has taken steps, but is ultimately unable, to prevent a particular obstruction, I very much doubt that it can nevertheless be said to have incurred a liability under Special Condition (15)(a) for having allowed or suffered the Open Space to be obstructed.  Reliance on this clause by the plaintiff seems therefore to me to be a circular argument.

69.In all the circumstances, subject to removing the obstruction I refer to in paragraph 62 above, I decline to grant an interlocutory injunction to prevent any demonstrations within the Lot and outside the building and I also decline to grant an interlocutory injunction to prevent the keeping of temporary objects such as canopies there or to grant a mandatory injunction for their removal.

Injunction restraining entry into the building

70.I now turn to the limited ex parte injunction granted by Pang J on 26 April.  No one has suggested that the injunction restraining entry into the building should be discharged as against the 6^th defendant.  I think it should continue.

71.The 1^stto 5^th defendants, however, seek to discharge that injunction as against themselves.  They point out, correctly in my view, that the injunction is in the nature of a quia timet[3] injunction, and that it is established in the authorities, such as Billion Star Development Ltd v Wong Tak Chuen, CACV 49/2012, 8 March 2013, at paragraph 34, that to obtain such an injunction the plaintiff has to prove that it is reasonably certain that what the defendants are threatening and intending to do will cause imminent and substantial damage to it.

72.However, as the Court of Appeal also pointed out in Billion Star at paragraph 34(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”.

73.Having reviewed the evidence, I am satisfied that substantial inconvenience or even personal injury may result if confrontations are permitted to occur within the building.  There may be little direct evidence to link the 1^st to 5^th defendants to the incident resulting from the entry into the building on 24 April, but I think the plaintiff is entitled, given that incident, legitimately to fear that some of the protesters, of which the 1^st to 5^th defendants are members, may try again to gain entry in future.  It would not be a proper burden to place on the plaintiff to have to identify in urgent situations which persons among the protesters are or are not prohibited by injunction from entering into the building.  Further, the building is the private property and within the exclusive possession of the plaintiff and there is no question of the public having any right over it.  In my judgment the plaintiff is entitled to deny entry to the defendants and to have the continued protection of the injunction granted ex parte on 26 April.

Conclusion

74.For these reasons, I am satisfied that there are serious issues to be tried and damages not being an adequate remedy I have assessed the balance of convenience and come to the conclusion that:

(1) the injunction granted on 26 April should continue until trial or further order;

(2) I decline to grant any further interlocutory injunction at this stage as sought by the plaintiff by its Amended Summons except a limited interlocutory injunction for the removal of temporary structures, and to prevent obstruction by temporary structures, along the pedestrian walkway on Queen’s Road Central near the steps to the upper ground floor (at the location marked H on page 306 of the hearing bundles).

75.I shall be prepared to order a speedy trial and give the necessary directions.  Subject to what counsel have to say and to the court’s diary, it seems to me there is no reason why that cannot take place within a matter of weeks.

Mr Simon Westbrook, SC and Ms Catrina Lam, instructed by Woo, Kwan, Lee & Lo, for the plaintiff

The 1^st defendant appeared in person

Mr Gerard McCoy, SC, leading Ms Miranda Li, instructed by Ho Tse Wai, Philip Li & Partners assigned by the Legal Aid Department, for the 2^nd and 3^rd defendants

Mr Carter Chim, instructed by Ho Tse Wai, Philip Li & Partners assigned by the Legal Aid Department, for the 4^th and 5^th defendants

The 6^th defendant was not represented and did not appear