Lai Hoi Ping and Another v. Persons Occupying Portions of Nathan Road Near To and between Argyle Street and Dundas Street To Prevent or Obstruct Normal Vehicular Traffic From Passing and Repassing the Occupied Areas

HCA 2086/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2086 OF 2014

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HCA 2104/2014
(HCZZ 136/2014)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2104 OF 2014

(INTENDED ACTION NO 136 OF 2014)

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Before : Hon Poon J in Chambers (Open to the public)

Date of Hearing : 20 October 2014

Date of Ruling : 20 October 2014

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R U L I N G

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1.These two ex parte applications on notice arose out of the recent public demonstrations in the centre of Mongkok as part of the “Occupy Central” Campaign directed against the constitutional development of Hong Kong by way of civil disobedience.

2.It is the usual practice of the court to hear an ex parte application for injunction (even on notice) in chambers not open to the public.  However because of the immense public importance involved in the two applications now before me, I agree with Mr Mok SC for the applicants in one of the applications (HCA 2104/2014) that the hearing should be heard in chambers open to public so that the public is made aware of not only the order that the court is going to make, but also the submissions advanced before the court and the court’s reasoning in arriving at its conclusion; although given the nature of the applications, such reasoning is bound to be brief but I hope succinct.

A. PARTIES

A1. Parties in HCA 2104/2014

3.The plaintiffs are Mr Lai Hoi-ping and Mr Tam Chun‑hung.

4.Mr Lai is a taxi manager and the chairman of Hong Kong Taxi Association (“HKTA”).  Its core function is the management of taxi business in Hong Kong.  HKTA has around 400 members, comprising owners and managers of taxis.  Each of HKTA’s members who is a manager manages 10 to 50 taxis and in the case of Mr Lai, he manages 30 taxis. There are around 2,000 taxis being operated or managed by HKTA’s members.

5.Mr Tam is a committee member and a member of Taxi Drivers and Operators Association (“TDOA”).  TDOA has around 10,900 current taxi driver members.  About 80 percent of its members are adversely affected by the “Occupy Central” Campaign.

6.Depending on where the taxi drivers live, some of the taxis mostly operate in Kowloon and some on the Hong Kong side, although they also travel to and from the other side of the Harbour, the New Territories and certain permitted areas of Lantau Island and operate there if required to do so by a customer.

7.Both Mr Lai and Mr Tam sue on behalf of themselves as well as on behalf of the members of their respective associations.

8.The defendants are the persons occupying portions of Nathan Road near to and between Argyle Street and Dundas Street to prevent or obstruct normal vehicular traffic from passing and repassing the area occupied.  They seek an injunction to restrain the intended defendants from obstructing that portion of Nathan Road near to and between Argyle Street and Dundas Street.

A2. Parties in HCA 2086/2014

9.The plaintiff is Chiu Luen Public Light Bus Company Limited (“Chiu Luen”).

10.Chiu Luen is carrying on the business of organising, managing and providing commute routes of public light buses for the purpose of public transportation.  It is responsible for organising, managing and providing commute routes of public light buses and receives a management fee of $1,000.00 from the owners of each public light bus.  The owners of the public light buses find self-employed drivers to lease and operate the public light buses and the self-employed drivers of the public light buses are required to pay $1,000.00 per day to lease a public light bus.  The drivers of the public light buses act as sole proprietors who drive the light buses along the commute route organised, managed and provided by the plaintiff and receive fares from passengers.

11.Chiu Luen and its predecessor has operated, managed and provided the commute routes from Kwun Tong to Olympic Station in Tai Kok Tsui in a circular manner with 14 stops for over 50 years.

12.The defendants are demonstrators or protestors unlawfully occupying or remaining at the area occupied, that is the westbound carriageway of Argyle Street between the junction of Tung Choi Street and Portland Street in Mongkok.  Chiu Luen is seeking an injunction to restrain the defendants from obstructing that passageway.

B. BACKGROUND

13.As I have said, these applications arose of the recent “Occupy Central” Campaign which has spilled over from Hong Kong Island to Mongkok.  The events that took place since the Campaign began some 20 days ago have been covered by the media closely and extensively and in a real sense have unfolded before the eyes of the public.  So for present purposes, I only need to refer to what has been deposed to in the supporting affirmations, in particular paragraphs 6 to 22 of Mr Lai’s affirmation and paragraphs 10 to 15 of Mr Lam Sum-keung’s affirmation.  Mr Lam is a director of the Chiu Luen.  In the interest of time, I shall not repeat what they have said for the purpose of this judgment.

C. DISCUSSION

14.These being ex parte applications for interim injunction, the relevant principles can be found in a recent judgment of Godfrey Lam J in Turbo Top Limited v Lee Cheuk Yan [2013] 3 HKLRD 41 at paragraph 14 :

“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 [the Court] must take into account the interests of the general public as well even though they are not represented before [the Court].”

C1. Serious question to be tried

15.I first consider if there is a serious question to be tried.

16.The plaintiffs before me are suing the defendants for public nuisance.  The law on public nuisance is well settled. In brief, it is a public nuisance to obstruct or hinder the free passage of the public along a highway by land or water.  A private individual has a right of action in respect of a public nuisance if he can prove that he has sustained particular damage other than beyond the general inconvenience and injury suffered by the public, and that the particular damage which he has sustained is direct and substantial.  Every person is entitled in law to make reasonable use of highways for the purpose of passing and re‑passing.  The use of a highway for any other purpose, such as standing or sitting on, or placing objects, or playing games on, may well amount to a public nuisance if such use is unreasonable.  In an action in public nuisance, once the nuisance is proved and the defendant is shown to have caused it, the legal burden shifts to the defendant to justify or excuse himself.  If he fails to do so he will be liable.  See Clerk & Lindsell on Torts 20th Edition at paras 21-121; DK Srivastava & AD Tennekone on The Lord of Tort in Hong Kong 3^rd Ed paras 22.74, 22.85.

17.In Leung Tsang Hung & Another v The incorporated Owners of Kwok Wing House [2007] 10 HKCFAR 480 at para 12, Ribeiro PJ dealt with the offence of public nuisance.  In gist his Lordship said that public nuisance is a common law offence, that it is actionable as a tort by an individual who has been caused particular damage over and above the damage suffered by the public at large.  His Lordship identified three elements which constituted the tort of public nuisance :

(1) A state of affairs which endangers the lives, safety, health, property or comfort of the public, or obstructs the public in the exercise or enjoyment of any right that is common to members of the public.

(2) An act or omission committed by the defendants that is causative of particular injury to a member of the public. The injury caused to the plaintiffs must be of a foreseeable type.

(3) The defendants knew or ought to reasonably to have known that his act or omission would result in the likely consequence of a nuisance hazard presenting a real risk of harm to the public.

18.On the evidence before me, I agree with Mr Mok’s submissions that a state of affairs has arisen which endangers the comfort and convenience of the property as well as obstructs the public in the exercise of enjoyment of their right to use the areas in question as a two‑way carriageway for normal vehicular traffic.

19.I also accept his submission that the act of occupying the areas concerned and the erecting of barriers and of obstructions thereat are causative of the blockage of a major road in Kowloon causing serious traffic congestion.  That obstruction, in conjunction with the occupation of other major roads on Hong Kong Island side, has substantially deterred potential customers, including tourists, from using taxis as a means of transportation both in Kowloon and Hong Kong Island thereby resulting in substantial loss of taxi drivers and taxi managers.  That type of injury is clearly foreseeable.

20.The barriers and other obstruction in the areas concerned has the obvious effect of preventing and obstructing the public, including taxi drivers, from using the occupied areas and such barriers and other obstruction might even be hazardous to the public, particularly when it is necessary for emergency vehicles to us the occupy areas to reach those requiring their assistance.  I accept Mr Mok’s submissions that it is within the occupiers knowledge that the acts would result in the likely consequence of a nuisance hazard presenting a real risk of harm to the public.

21.Turning to Mr Wong’s clients, I also accept his submissions that the Chiu Luen should be entitled to free passage of the public along the area concerned so that the public light buses in question could make use of the way as part of the route in providing public transportation service to the public.  The defendants have created a public nuisance by obstructing and hindering the vehicular movement of the area concerned.

22.I also accept counsel’s submissions that in both cases the activities involved give rise to a host of criminal offences under the Public Order Ordinance and the Summary Offences Ordinance.

C2. Adequacy of damages

23.I next consider whether or not damages are a sufficient remedy.  I agree with counsel’s submissions that damages in the cases before us are not adequate.  Injunction is the proper and effective remedy available to the plaintiffs.

C3. Balance of Convenience

24.I now come to the question of balance of convenience.  I take into account a number of factors.

C3.1  Balancing the public interest involved

25.The right to use public highway in a lawful and reasonable manner for legitimate purposes is a right commonly enjoyed by all members of the public.  No one can possibly claim a monopoly of using the public highway in total disregard of the interests of his fellow citizens, no matter how honourable or noble his cause may be.  That is so even if the right to demonstration or assembly as guaranteed by the Basic Law is engaged.  It is a question of balancing the competing interests and considering what is reasonable in the overall circumstances of the case.

26.I derive support for that proposition from the judgment of the Court of Final Appeal in Yeung May Wan v HKSAR [2005] 8 HKCFAR 137.  The majority of the Court of Final Appeal in that case had this to say :

“42. It is clear that a person who creates an obstruction cannot be said to be acting without lawful excuse if his conduct involves a reasonable use of the highway or public place. The suggestion in some of the earlier reported cases that the public’s right to use the highway is limited to the right of passage and repassage and acts incidental or ancillary thereto, is too narrow. It is now established that ‘...the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage.’

43. Many examples of obstructions which may nevertheless constitute reasonable use of the highway can be found in the two cases...”

And examples are given by the Court of Final Appeal and they went on to say at p157B-D :

“43. …It seeks to strike a balance between possibly conflicting interests of different users of the highway based on a requirement of reasonableness. Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done.

44. Where the obstruction in question results from a peaceful demonstration...”

And I stress “peaceful demonstration” :

“44. ...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 short, a balancing exercise has to be carried out to balance on the one hand the general public’s right to use the highway and on the other those who are exercising their right to demonstration or assembly on the highway.

27.Having evaluated the overall circumstances, I think the balance tilts in favor of granting the interim injunction so that the rights enjoyed by the plaintiffs to use the areas occupied can be restored.

C3.2  Possibility that the court order might not be obeyed

28.I next consider the possibility that the court order might not be obeyed.  This is a point raised by Mr Mok in the course of his submissions.  He drew my attention to the relevant cases in England.  One is the English Supreme Court’s decision in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] 1 WLR 2780 at para 17 where Lord Rogers cited South Bucks District Council v Porter [2003] 2 AC 558 :

“32. …When granting an injunction the court does not contemplate that it will be disobeyed ... Apprehension that a party may disobey an order should not deter the court from making an order otherwise appropriate : there is not one law for the law-abiding and another for the lawless and truculent.”

In a similar vein, Lord Neuberger said at paragraph 81 that :

“81. On the other hand, in the same paragraph of his opinion, Lord Bingham also said that ‘[a]pprehension that a party may disobey an order should not deter the court from making the order otherwise appropriate.’ A court may consider it unlikely that it would make an order for sequestration or imprisonment, if an injunction it was being invited to grant were to be breached, but it may none the less properly decide to grant the injunction. Thus, the court may take the view that the defendants are more likely not to be trespass on the claimant’s land if an injunction is granted, because of their respect for a court order, or because of their fear of the repercussions of breaching such an order. Or the court may think that an order of imprisonment for breach, while unlikely, would nonetheless be a real possibility, or it may think that a suspended order of imprisonment, in the event of a breach, may well be a deterrent….”

29.As indicated in the course of Mr Mok’s submissions, it is the foundation of the rule of law in Hong Kong that a court order is to be obeyed.  And I fully expect that that order that I am going to make will be obeyed, even if the defendants disagree with it.  If they feel aggrieved by the order, they should come back to court so that the question whether they can continue with their occupation of the areas affected by their activities can be resolved in a peaceful and legal manner with the benefit of mature consideration of the law applicable to their rights and obligations on the one hand, and those of their fellow citizens affected by their activities on the other.

C3.3  Civil Disobedience

30.I next come to the question of civil disobedience because as I have said the “Occupy Central” Campaign is avowedly a form of civil disobedience.  The nature of civil disobedience is explained by Lord Hoffmann in R v Jones [2007] 1 AC 136 as follows :

“89. My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country...”

That is in England :

“89. …People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history...It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law‑breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account...

90. These appeals... and similar cases concerned with controversial activities, such as animal experiments, fox hunting, genetically modified crops, nuclear weapons and the like, suggest the emergence of a new phenomenon, namely litigation as the continuation of protest by other means. The protesters claim that their honestly held opinion of the legality or dangerous character of the activities in question justifies trespass, causing damage to property or the use of force. By this means they invite the court to adjudicate upon the merits of their opinion and provide themselves with a platform from which to address the media on the subject. They seek to cause expense and, if possible, embarrassment to the prosecution by exorbitant demands for disclosure such as happened in this case.

91. In Hutchinson v Newbury Magistrates’ Court (2000) I22 ILR 499,where a protester sought to justify causing damage to a fence at Aldermaston on the ground that she was trying to halt the production of nuclear warheads, Buxton LJ said at p510 :

‘[T]here was no immediate and instant need to act as Mrs Hutchinson acted, either [at] the time when she acted or at all : taking into account that there were other means available to her of pursuing the end sought, by drawing attention to the unlawfulness of the activities and if needs be taking legal action in respect of them. In those circumstances, self-help, particularly criminal self-help of the sort indulged in by Mrs Hutchinson, cannot be reasonable.’

92. I respectfully agree. The judge then went on to deal with Mrs Hutchinson’s real motive, which (‘on express instructions’) her counsel had frankly avowed. It was to ‘bring the issue of the lawfulness of the Government’s policy before a court, preferable a Crown Court.’ Buxton LJ said at p510 :

‘[I]n terms of the reasonableness of Mrs Hutchinson’s acts, this assertion on her part is further fatal to her cause. I simply do not see how it can be reasonable to commit a crime in order to be able to pursue in the subsequent prosecution, arguments about the lawfulness or otherwise of the activities of the victim of that crime.’

93. My Lords, I do not think that it would be inconsistent with our traditional respect for conscientious civil disobedience for your Lordships to say that there will seldom if ever be any arguable legal basis upon which these forensic tactics can be deployed.”

31.I am mindful of the fact that I am only dealing with the applications and the evidence before me on an ex parte basis, but on the materials before me when the demonstration in question based on civil disobedience have taken place for so long, in such a scale which has affected so many people and which has the real risk of turning into civil disorder, I do not think the fact that the demonstration is civil disobedience, no matter how noble the underlying cause the participants may consider it to be, can constitute a factor which militates against the granting of an injunction.

C3.4  Possible Defence

32.Finally I come to the question of possible defence.  Mr Mok very fairly drew my attention to the possible defence that the defendants may wish to raise, that is, they are exercising their fundamental rights to freedom of speech, assembly and demonstration as guaranteed under Article 27 of the Basic Law.  He drew my attention to what the Court of Final Appeal has said in Yeung May Wan, supra, that is :

(1) A person who created an obstruction in a public place is not acting without lawful excuse if his conduct involves a reasonable use of the public place; and

(2) What is reasonable is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done.

33.I agree with Mr Mok’s submissions that at least on the materials before me the defendant’s conduct in the purported exercise to demonstrate has caused an obstruction which is far exceeding the bounds of what is reasonable in light of the length of the demonstration, the extent of the demonstration and the increasingly violent confrontations between the protesters and the police.  I also accept his submission that on the evidence before the court the protesters’ conduct is disproportionate and any reliance on the fundamental rights to freedom of assembly, demonstration, will unlikely succeed.

D. CONCLUSION

34.For the above reasons, subject to the actual wording of the order, I will grant the injunctive relief.

Mr Tim Wong, instructed by CMK Lawyers, for the plaintiff in HCA 2086/2014

Mr Johnny Mok SC, Mr Jose-Antonio Maurellet and Ms Eva Leung, instructed by Phyllis K Y Kwong & Associates, for the intended 1^st and 2^nd plaintiffs in HCA 2104/2014 (HCZZ 136/2014)

Please refer to HCMP2975/2014 for the relevant appeal(s) to the Court of Appeal.