Billion Star Development Ltd v. Wong Tak Chuen and Others

FAMV No. 38 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.38 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 49 OF 2012)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ :

1.At the hearing, we dismissed this application without calling on the respondent and now provide our reasons for doing so.

2.The respondent is the owner of a property within the residential estate known as Mei Foo Sun Chuen.  It was engaged in the construction of a residential block on the property in accordance with approved building plans.  Certain residents of neighbouring blocks objected to the development and organized themselves into a protest group which, during March and April 2011, physically blocked the only access road (over which the respondent had a right of way) leading to the property, thus preventing the respondent’s contractors from doing the construction work.  There is no doubt that the protesters’ conduct constituted acts of trespass and nuisance against the respondent and its property.

3.On 20 April 2011, the respondent issued proceedings in the High Court and sought interlocutory and final injunctive relief against the protesters.  It was able to identify six of them who were nearby residents and named them individually in the writ as the 1^st to 6^th defendants.  It also named as the “7^th defendant” a class of persons described as persons “entering or remaining without the consent of the plaintiff [on the property] and other persons interfering with the plaintiff’s right of way over the [relevant roads] in connection with the protests against the plaintiff’s proposed development ...”

4.The present applicant was not and is not a resident of the estate.  However, he took part in the protests and, at the first hearing of the respondent’s application for an interlocutory injunction, he identified himself to the Court as being, or coming within the class of persons listed as, the 7^th defendant.  The plaintiff therefore obtained an order that he be joined as a party, naming him as an individual 8^th defendant.[1] 

5.Although the applicant objected to this, he filed a defence, filed affidavit evidence and instructed leading counsel to resist the respondent’s application for summary judgment and for injunctive relief, asserting that he had participated with the others to protest against the respondent’s proposed development of the property.  He did not at any stage state that he did not intend to indulge in conduct constituting a trespass or a nuisance infringing the respondent’s rights.  It is striking that the applicant persisted in this course of action even though the 1^st to 6^th defendants who were affected residents consented to judgment and dropped out of the action before the hearing in front of Au J took place.

6.There was no evidence that the applicant had, when participating in the protests on 3 April 2011, personally carried out acts interfering with the plaintiff’s right to use the access road and to enjoy its property.  However, after duly considering the applicable principles, Au J[2] found that the evidence justified the grant of a quia timet injunction since the applicant had clearly evinced an intention to carry out such wrongful acts.  The applicant had identified himself as the 7^th defendant, thereby associating himself with their conduct described in the writ and asserted that their actions were within their constitutional rights, never disavowing an intention to commit the tortious acts in question.  His Lordship rejected the constitutional argument as unsustainable.  The protesters’ exercise of their rights to free expression, peaceful assembly and demonstration had to respect the rights of others and there was no justification for mounting protests which unlawfully deprived the respondent of access to its own property.[3]  Au J therefore granted the respondent summary judgment and issued a permanent injunction against the applicant.  Those findings were confirmed by the Court of Appeal[4] and are unassailable concurrent findings.

7.The applicant now seeks leave to appeal to the Court of Final Appeal putting forward three questions said to be of great general or public importance.  They are annexed to this Determination.

8.Question 1 seeks to challenge the evidential basis for the grant of the quia timet injunction. It suggests that the finding that the applicant had evinced an intention to carry out the relevant wrongful acts “was not supported by any evidence whatsoever”.  That proposition is unarguable on the evidence.  The applicant’s self-identification as a person coming within the classes of persons described by reference to acts of trespass and nuisance as “the 7^th defendant”; his assertion that he was supporting the actions of the protesters whose blockade of the site plainly amounted to tortious conduct; his assertion that such protests were within his and their constitutional rights; and his failure to disavow unlawful interference with the plaintiff’s property rights gave the Court an ample basis for finding that the applicant threatened and intended, unless restrained, to indulge in the relevant unlawful conduct.  That conclusion is the subject of concurrent findings.  Asked what basis there was to justify re-opening those concurrent findings, Mr Martin Lee SC merely re-iterated the submission that the grant of the quia timet injunction was unsupported by evidence. That is of course not good enough as ample evidence existed.

9.Question 2, framed as raising issues concerning the right of access to the courts and rights of free speech, assembly and demonstration, is on its face incoherent.  It cannot sensibly be suggested that the applicant has in any intelligible sense been deprived of his right of access to the courts under Art 35 of the Basic Law.  He chose to identify himself as the 7^th defendant, was duly joined as an individual defendant and then fully took part in the proceedings, persisting in resisting the plaintiff’s claims even after the residents affected by the development had consented to judgment.  He then took the case to the Court of Appeal and is now seeking leave to appeal before this Appeal Committee. 

10.At the hearing, the explanation (elicited with some difficulty from Mr Lee SC) was that Question 2 seeks to raise the complaint that the grant of a quia timet injunction without any evidential basis amounts to a denial of access to justice – in other words, a re-iteration of the complaint underlying Question 1.  Question 2 is rejected on the same basis.

11.Question 3 is a generalised question about the courts’ approach to freedom of assembly, etc, where exercise of such freedoms conflicts with a person’s right to private property.  It is not a question that can be answered in the abstract but must involve a fact-specific determination by the Court.  No such questions arise in the present case.  There is no reasonably arguable basis for doubting the conclusion arrived at below that the form of protest involving the complete denial of access to the respondent’s property is incapable of being justified in the present case. 

12.We accordingly dismissed the application with costs.

Mr Martin Lee, SC, Ms Jocelyn Leung and Mr Richard Yip instructed by JCC Cheung & Co, for the Applicant

MrBenjamin Yu, SC and Mr Elliot Fung instructed by Mayer Brown JSM, for the Respondent

ANNEX to Determination in FAMV 38/2013

The Questions put forward by the applicant

(1) Having regard to :

(a) the sole basis of the Respondent’s application for a quia timet injunction, viz. that unless restrained by an injunction, the defendants (including the Applicant) would continue with their unlawful acts of blocking the Respondent from having access to the Property (defined below) with irreparable consequential damage to it; and

(b) the finding by Au J (“the Judge”) that the Applicant did not carry out any wrongful acts viz. “acts that have infringed the [Respondent’s] right over the use of the Access Road (defined below)”,

WAS there an error of law on the part of the Judge in granting the quia timet injunction (“the Injunction”), and on the part of the Court of Appeal in affirming it, based on a crucial finding that the Applicant had evinced an intention to carry out wrongful acts in future to interfere with the Respondent’s right of reasonable use of the Access Road if not restrained1, which finding was not supported by any evidence whatsoever, but was made as a result of the Judge and the Court of Appeal failing to distinguish between (i) “the taking up of the cudgels” on behalf of the 7^th Defendant “in order to champion their cause” during the legal proceedings (which the Applicant did do), and (ii) the taking up of such cudgels on behalf of the 7^th Defendant by the commission of wrongful acts (which the Applicant did not do, and was found by the Judge not to have done)? (“Question 1”)

(2) In granting or affirming the Injunction against the Applicant for :

(a) having participated with other people in a peaceful rally organised by the 1^st to 6^th Defendants against the Respondent in relation to the development of the Property, and

(b) having at the commencement of these proceedings voluntarily identified himself as the 7^th Defendant,

WAS there an error of law on the part of the Judge and Court of Appeal in disregarding and/or failing to give any or any sufficient weight to and/or violating the Applicant’s constitutional right to access to the courts under Article 35 of the Basic Law (“BL35”) [and/or his constitutional right to freedom of speech, of assembly, of procession and of demonstration under Article 27 of the Basic Law (“BL27”) (collectively, “freedom of assembly etc.”)? (“Question 2”)]

(3) WHAT approach and criteria should the courts adopt when a person’s assertion of his right to freedom of assembly etc. under BL 27 is in conflict with another person’s right to property under Article 105 of BL (“BL 105”), particularly in relation to privately owned land which is semi-public in nature? (“Question 3”)