Chiu Luen Public Light Bus Co Ltd v. Persons Unlawfully Occupying or Remaining on the Public Highway Namely, The Westbound Carriageway of Argyle Street between the Junction of Tung Choi Street and Portland Street and/or Other Persons Hindering or Preventing the Passing or Repassing of Argyle Street and Others

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 2094/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2094 OF 2014

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HCA 2104/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2104 OF 2014

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BETWEEN

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J U D G M E N T

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A.   INTRODUCTION

1.In each these three actions, the plaintiffs obtained an ex parte injunction before Poon J on 20 October 2014 against the respective unnamed defendants.  For convenience, I would call the action under HCA 2094/2014 as the “CITIC Tower Action”, under HCA 2086/2014 as the “Taxi Operators Action” and under HCA 2104/2014 the “Minibus Manager Action”.

2.The injunctions obtained relate to what is now widely known as the Occupy Central Campaign (“OCC”) in Hong Kong directed against the constitutional development of Hong Kong.  Under the OCC, mass protestors and demonstrators have since late September occupied parts of a number of major roads on Hong Kong Island and Kowloon.  The occupations have been “reinforced” by the protestors and demonstrators in placing and securing various barriers, barricades and objects on these parts of the roads and streets.  The result is that vehicular traffic through these parts of the roads and streets has been effectively completely blocked.

3.The defendants in all these actions are the respective unidentified protestors and demonstrators who have occupied the relevant parts of the roads or streets that said to have affected the plaintiffs.  In the CITIC Tower Action, the plaintiff (as the owner of CITIC Tower in Admiralty) brought the claim against the defendants on the bases of both private nuisance and public nuisance.  In both the Taxi Operators Action and the Minibus Manager Action, the plaintiffs (who said they derive their incomes from the operations or related operations of respectively taxis and minibuses) premised their claims on public nuisance.

4.The ex parte injunction (“the CITIC Tower Injunction”) obtained under the CITIC Tower Action is one which effectively restrains the 1^st unnamed defendants from (a) obstructing or maintaining obstruction (whether by themselves or through placing objects thereat) at the entrances and exits of CITIC Tower and the vehicular and pedestrian passage at Tim Mei Avenue and Lung Wui Road which block vehicular or pedestrian access to CITIC Tower, and (b) preventing the plaintiff from clearing and removing the obstructions and obstacles presently placed thereat obstructing the said CITIC Tower’s entrances and exits, as well as vehicular and pedestrian exits.

5.The ex part injunction obtained under the Taxi Operators Action is effectively to restrain the defendants (either by themselves or by placing objects thereat) from (a) occupying portions of the Nathan Road near and between Argyle Street and Dundas Street (“the Blocked Area”) to prevent or obstruct vehicular traffic from passing and re-passing the Blocked Area, and (b) preventing the plaintiffs from removing any such obstructions from the Blocked Area.

6.The ex parte injunction obtained under the Minibus Manager Action is to restrain the defendants (either by themselves or by placing objects thereat) from (a) occupying portion of the westbound carriageway of Argyle Street between the injunction of Tung Choi Street and Portland Street (“the Blocked Way”) to prevent or obstruct vehicular traffic from passing and re-passing the Blocked Way, and (b) preventing the plaintiffs from removing any such obstructions placed on or from the Blocked Way.

7.For convenience, I would call these two injunctions collectively the “Mongkok Injunctions” as both the Blocked Area and the Blocked Way are at one of the busiest areas in Mongkok.

8.Before me now are the respective plaintiffs’ applications by way of inter partes summons to (a) continue these injunctions, and (b) ask for certain directions to facilitate the enforcement of the injunctions.  The latter part of the applications is necessary, say the plaintiffs, as there has been en masse flouting and non-compliance of the ex parte injunctions by the defendants after they have been granted. I would of course return to this when I have to deal with this part of the applications.

9.These applications are opposed at the hearing:

(1)  Under the Taxi Operators Action and the Minibus Manager Action, Mr Ng Ting Pong (after obtaining legal aid) and Mr Dominic Fok have appeared (after joined as the 2^nd and 3^rd defendants respectively) to oppose the continuation of the Mongkok Injunctions.  They are respectively represented by Mr Dykes SC (leading Ms Christine Yu) and Ms Gladys Li SC (leading Ms Margaret Ng and Mr Michael Yin).  Mr Raymond Chen (as the 3^rd defendant) also appeared at the first day of the hearing and asked to be joined as a named defendant to oppose the plaintiffs’ applications[1].

(2)  Under the CITIC Tower Action, Ms Wong Yuen Ching has appeared (again after obtaining legal aid) and been joined as the 2^nd defendant to oppose the continuation of the CITIC Tower Injunction.  She is represented by Mr Manzoni SC (leading Mr Earl Deng).

10.Before I deal with specifically the arguments raised by the parties in these applications, it is important to point out that, in all the three actions, all the opposing defendants have fairly and rightly accepted that the occupations of the concerned areas amount to public nuisance, and none of them argue that a court order (even an ex parte one) need not or should not be complied with.

11.Further, as emphasised by Poon J in his judgment for the ex parte CITIC Tower Injunction[2], the court as an independent institution in determining the present applications is only and strictly to apply the law and to uphold the rule of law.  The political views or considerations behind the OCC are entirely irrelevant to the determination.

B.   WHETHER THE INJUNCTIONS SHOULD BE CONTINUED

B1.   The applicable principles on the grant of an interlocutory injunction

12.The legal principles governing the grant of an interlocutory injunction are well established and not in dispute.  As succinctly and helpfully summarised by G Lam J in Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 at paragraph 14, the court has to see (a) whether there are serious issues to be tried, (b) whether damages would be an adequate remedy for either side, and if damages would not be adequate for both parties, (c) 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 even though they are not represented before the court.

13.Given that the issues raised in whether the Mongkok Injunctions should be continued are the same, I would first deal with them together before I look at the issues raised in the CITIC Tower Action.

B2.   The Mongkok Injunctions

B2.1  Serious issues to be tried – Do the plaintiffs have a proper cause of action

14.As I mentioned above, the plaintiffs for the Mongkok Injunctions brought their claims in public nuisance.  As I have also said above, none of the opposing defendants contends that the occupation of the Blocked Area and the Blocked Way do not amount to public nuisance in law.  This must be right, as it is well established that the blocking of highway for an unreasonably period of time and extent, which significantly affects and interferes the public’s right to use them (as in the present case) amounts to public nuisance.  See: Clerk & Lindsell on Torts (20^th ed), at paragraphs 21-121; Leung Tsang Hung v The Incorporated Owners of Kwok Wing House [2007] 10 HKCFAR 480 at paragraph 12 per Ribeiro PJ.

15.The principal contentions raised by the 2^nd and 3^rd defendants under this question have been premised on a number of bases, which I would look at in turn now.

B2.1.1  Do the plaintiffs suffer particular, substantial and direct damage because of the public nuisance

16.It is well established that, as public nuisance results in infringing the general public’s rights, generally only (in the case of Hong Kong) the Secretary for Justice (“SJ”) can bring a claim in public nuisance for and on behalf of the general public (who has suffered the inconvenience generally by reason of the public nuisance).  For a private individual (without joining the SJ in a relator action) to bring a claim in public nuisance, the law requires that he must show that he has suffered a “particular, direct and substantial” injury above and beyond what is suffered by the rest of the public at large: Benjamin v Storr (1874) LR 9 CP 400 at 406-406 per Brett J.

17.In light of this requirement, the fundamental and primary contentions raised by Mr Dykes and Ms Li is that in the present case, the damage said to be suffered by the plaintiffs in both actions do not and cannot be regarded as “particular, substantial and direct” injury to enable them to bring a private claim in public nuisance.  As such, the plaintiffs’ cause of action is clearly defective without also jointing the SJ as a plaintiff.  The claim for an interlocutory injunction must therefore fail.

18.Before I deal with the defendants’ arguments in detail, it is convenient to first look at some case law relevant to the question of “particular, substantial and direct” damage in public nuisance.

19.Whether a damage or loss said to be suffered by the plaintiff can be regarded as particular, substantial and direct is essentially a question of fact, and a matter of degree and extent: Jan de Nul v Royale Belge [2000] 2 LLR 700 at paragraph 44 (p 715).

20.In this respect, it is also pertinent to note that it has also been well established that:

(1)  The “particular” damage needs not be pecuniary (and thus special) in nature.  It may consist of proved general damage, such as inconvenience and delay provided that it is substantial, that it is direct and non-consequential, and that it is appreciably greater in degree than any suffered by the general public: Walsh v Ervin [1952] VLR361 at 371 per Scholl J.

(2)  “Substantial” means no more than that the damage suffered is more than trivial: Jan de Nul, supra, at paragraph 44.

(3)  It is also not necessary prove that the plaintiff has any injury to property, or has any interest or relationship with any land or building: Benjamin v Storr, supra, at 406; Leung Tsang Hung, supra, at paragraph 13.

21.Further, the authorities show that the requirement of “direct” damage is satisfied not only by one which is immediately caused by or flowed from the nuisance.  It also covers those injuries and damage which are caused by or flowed from the nuisance through a chain of events, so long as those events can be regarded as probable events as a result of the nuisance and the chain is not broken by external matters unrelated to the nuisance.  It is a question of fact in each case as to whether the damage claimed to be suffered fall within the requisite chain of events.  See: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon No 2) [1967] 1 AC 617, at 634E-636D per Lord Reid; Gravesham v British Railways Board [1978] 1 Ch 379 at 396F-397C and 398H-399B[3].

22.I now turn to look at what the plaintiffs say they have suffered as damage and loss in the present case.

23.In the Taxi Operators Action:

(1)  The 1^st plaintiff (Mr Lai) sues on his own behalf and on behalf of all the other members of Hong Kong Taxi Association (香港計程車會) (“HKTA”).  The 2^nd plaintiff (Mr Tam) sues also on his own behalf and on behalf of the Taxi Drivers and Operators Association (的士司機從業員總會) (“TDOA”).

(2)  The core function of the HKTA is to promote the welfare and rights of taxi trade in Hong Kong.  There are about 400 members who are taxi owners, taxi owners who are also taxi drivers, or taxi drivers who do not own taxis.  Some of these members (about 50 of them) also happen to be taxi managers[4].

(3)  Mr Lai is the Chairman of the HKTA and an owner and taxi driver.  He is also a taxi manager himself who manages 30 taxis[5].

(4)  TDOA has about 10,900 members who are taxi drivers.  Mr Tam is a member of TDOA (and thus apparently a taxi driver) and occupies the post of committee member[6].

24.The plaintiffs’ evidence of the loss and damage said to be suffered by reason of the public nuisance is essentially this:

(1)  Because of the blocking of the Blocked Area, it has led to general traffic blockages and serious road congestions in Kowloon.  As a result, a lot of passengers (including tourists) no longer use taxis as their preferred means of transportation.  This results in loss of business and income for taxi drivers.  By way of example, the average income of a taxi driver has dropped from some $23,800 to about $17,800 per taxi.  This also impacts on the income of taxi owners and managers, as the taxi drivers are only willing to pay less as rental for taxis to operate or even not to rent a taxi at all for some days.  Not only therefore is that the daily rental of taxi has gone down by $100 per session for the owners (and thus reducing their income), the income of taxi managers has also been reduced as if the taxis are not rented out, a taxi manager would not receive his daily management fee and would have to pay for the idled taxi’s parking cost[7].

(2)  Mr Lai personally (suing in his own capacity) as a taxi manager, taxi owner and a driver thus has suffered and would continue to suffer those types of losses.  The HKTA members (sued by Mr Lai on their behalf) have suffered and would continue to (if the obstructions of the Blocked Area continues) suffer those types of losses respectively as an owner, owner driver or solely a driver.

(3)  Mr Tam personally (suing in his own capacity) as a driver and the TDOA members (who are taxi drivers) (sued by Mr Tam on their behalf) have suffered and would continue to suffer losses in the form of decrease in daily income.

25.In the Minibus Manager Action, the plaintiff is a minibus manager.  Its business is to organise, manage and provide commute routes of public light buses (minibuses) for the purposes of public transportation.  It is the plaintiff’s case that it receives a monthly management fee of $1,000 from the owner of each minibus in return for organising, managing and providing commute routes of them[8].

26.At present, the plaintiff manages 6 different commute routes across Kowloon.  One of them is the circular commute route (“the Olympic Station Route”) from Kwun Tung to Olympic Station, which has 14 stops.  This route generates the main and strongest source of revenue for the plaintiff.  In fact, the other routes managed by the plaintiff are either less profitable or run at a loss[9].

27.The plaintiff’s evidence on its loss and damage caused by the blocking of the Blocked Way is in gist as follows[10]:

(1)  Because of the Blocked Way, the minibuses of the Olympic Route have to skip 3 stops (of the 14 stops) from Argyle Street to Olympic Station, namely: the Ladies’ Market (Tung Choi Street), Sin Tat Plaza stop, the Tai Kok Tsui Olympic Station, HSBC Public Light Bus Terminus stop and the Tai Kok Tsui, Fuk Tsun Street Olympic Station Public Light Bus Terminus stop.

(2)  The skipped 3 stops are amongst the most popular stops for passengers.  As a result of the skip, there have been less passengers taking the Olympic Station Route, resulting in reducing the daily trips of that route from 150 times to 100 times.

(3)  The earnings of the drivers of that route have similarly therefore been reduced, which in turn results in the drivers reducing the amount of the daily rent they are prepared to pay the minibus owners from $1,000 to $800.

(4)  Given the reduced earnings of the owners, which they say is caused by the plaintiff’s failure to manage and organise the Olympic Route properly to include all the 14 stops, they have threatened not to pay the plaintiff the management fee unless the plaintiff is to take action by 21 October 2014.

(5)  The plaintiff therefore is going to suffer loss in the management fees arising from managing the Olympic Station Route and damage to its long standing reputation as minibus manager as a result of the public nuisance if it continues.  The financial impact on the plaintiff if it does lose the income from this route is dire and there is a real risk that it would be wound up eventually.

28.Mr Dykes and Ms Li both submit that the type and kind of loss and damage said to be suffered by these plaintiffs do not and could not amount to particular, substantial and direct damage caused by the Blocked Area or Blocked Way.  In particular, counsel says the alleged losses suffered are not direct and immediate enough to bring them within the legal requirements[11].  They are not, it is contended, immediately referable to the Blocked Area or Blocked Way specifically.

29.I am not persuaded by these arguments.

30.Applying the principles relating to “particular, substantial and direct” damage as I have summarised above, as far as I can see:

(1)  Those claimed losses and damage are pecuniary in nature, and are clearly something beyond and above what the general public has suffered at large as inconvenience by reason of the nuisance.  Thus, they must or at the least arguably come within the meaning of “particular” damage.  See: Benjamin v Storr (1874) LR 9 CP 400 at 406-406 per Brett J; Clerk & Lindsell, paragraph 20-181 at p 1371; paragraph 19(1) above.

(2)  Those losses and damage must or at least arguably also come within the meaning of “substantial”, as they are more than trivial, or not fleeting or evanescent:  Benjamin v Storr, at 407; Jan du Nul, supra, at paragraph 44.

31.Insofar as to whether they amount to “direct” damage, it is at least triable that they are as they are the result of a chain of probable events caused by or flowed from the nuisance.  It is at least triable that :

(1)  It is a probable result of the nuisance in blocking the Blocked Area and Street (which are by themselves under heavy use by vehicles) that there would be serious traffic congestions in other roads and streets in Kowloon generally;

(2)  It is also a probable result of the nuisance that frequent or regular road users (including commercial vehicular users) of the Blocked Area and Street would have to divert their route;

(3)  It is a probable result of the general traffic congestions and the need by the regular road users of the Blocked Area and Way to avoid them that there would be a serious interference on the business operations of those classes of road users whose businesses (and thus incomes) are dependent upon or related to the carriage of passengers on the roads generally and specifically through the Blocked Area and Way;

(4)  It is also a probable result of (if not common sense that) the heavy general traffic congestions caused by the nuisance that at least some passengers would avoid taking public transportations on the roads (including taxis, minibuses and buses) because of the serious and heavy traffic congestions;

(5)  It is thus also a probable result of these events that the businesses of these classes of road users (or at least some of them) would be adversely affected with loss of their incomes;

(6)  The above chain of events is interlinked and unbroken.

32.In the premises, the plaintiffs have shown at least a triable issue that the types of damage and loss said to have been suffered by them are particular, substantial and direct damage to entitle them to bring the claim in public nuisance against the defendants.

33.I should also mention that it appears also to be Ms Li’s contention that, given that this question concerns the locus of the plaintiffs to bring the claims, even for the purpose of deciding whether to continue the interlocutory injunction, the court should not determine it on the basis of whether there is a triable issue only.

34.I am not sure from where Ms Li has derived support for this contention as she has cited no authority in this regard.  The principles governing the granting of an interlocutory injunction as summarised above are well established.  Whether one calls the challenge based on locus or that the plaintiff lacks some of the necessary elements in constituting their proper cause of action, I see no reason why the same principles should not apply, which is whether the plaintiffs have shown a serious question (on the law or the facts) to be tried on their claims.  I therefore do not accept Ms Li’s submissions that under this question, it is not sufficient for the plaintiffs to only show a good arguable case.

35.Perhaps what Ms Li really means is this: even taking the plaintiffs’ evidence on the type and nature damage they said to have suffered at the highest (thus assuming the evidence is established at trial), as a matter of law, they do not amount to the ones required to entitle them to bring privately a claim in public nuisance.  The court should therefore be able to determine conclusively this question even at this stage.

36.On that basis assuming that the evidence before me has been all been proved, for the reasons I have explained above, I would accept that the plaintiffs have satisfied me that the type of damage they said to have been suffered falls within the meaning of particular, substantial and direct damage, which gives them a good cause of action in public nuisance.

37.Alternatively, if Ms Li argues that my reading of the case law at paragraph 21 above is incorrect, then I would only say that this at least amount to a serious question of law that should be tried. 

38.In the premises, I reject the 2^nd and 3^rd defendants’ primary contentions that the plaintiffs’ cause of action is defective.

B2.1.2  The plaintiffs in the Taxi Operators Action cannot properly bring a representative action

39.This ground is raised by Mr Dykes.  Leading counsel submits that in order to bring a representative action (as Mr Lai and Mr Tam seek also to bring), it must be shown that all the represented persons must share the same or identical interest, and it is not sufficient to show like or similar interest.  Mr Dykes therefore says a representative claim in the present case is clearly not permissible as each member of the HKTA and TDOA at the highest suffers or will suffer a different degree of damage and therefore does not share the same interest.  He relies on the authority of Preston v Hilton [1920] 55DLR 647 at 653-654 (as followed in Turtle v Toronto [1924] 56 OLR 252 at paragraphs 4 and 57) to support his contentions.

40.This objection can be disposed of for the present purpose shortly:

(1)  The decision in Preston was based on Moulton LJ’s dicta in Markt & Co Ltd v Knight Steamship Co Ltd [1910] 2 KB 1023 at 1035-1039 (see Preston, at p 654).  However, it is at least now arguable if not established that the law on this has since the judgment of Markt moved on, in that the rigid view as expressed by Moulton LJ in excluding a representative action where each of the represented members may have a different degree of interest in the matter is no longer applicable: Irish Shipping Ltd v Commercial Union [1991] 2 QB 206 (CA) at 224B- 227B per Staughton LJ.  The rule in the right to bring a representative action is now regarded as a flexible tool of convenience to facilitate the administration of justice: John v Rees [1970] Ch 345 at 370E per Megarry J (as referred to Irish Shipping at 226F-E).  The condition that there must be an “interest” shared by all members of the class in a representative action can be satisfied if every member of the class has a separate cause of action in tort: Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229 at 254-255 per Vinelott J (as referred to in Irish Shipping at 225B-F).  See also: Hong Kong White Book 2015, paragraph 15/12/2.

(2)  In the present case, it is at least triable on the state of the evidence as to whether each and every member of the HKTA and the TDOA suffers the type of particular and direct loss (as described in the evidence) which would have entitled each of them to bring a separate claim in public nuisance against the defendants.  If so, it must be for the benefit of this class and the administration of justice if all these separate claims could be dealt with together in a representative action.

(3)  In the premises, this cannot be a valid objection to the continuation of the interlocutory injunction on the basis that the plaintiffs’ claim brought as representative action is not arguably maintainable.

(4)  Further, and in any event, even if (for the sake of argument) Mr Dykes is right in his submissions that Mr Tam and Mr Lai cannot bring the representative action, it must not be forgotten that they also bring the claims in their own respective right.  These parts of the claims would not be affected by these submissions at all.  If they could maintain their own personal claims, there is no reason why the interlocutory injunction should not be continued (if all the other conditions for continuing the injunction are also satisfied).

41.I therefore also reject this ground as a basis to oppose the continuation of the Mongkok injunction in the Taxi Operators Action.

B2.1.3  Injunction should not be granted as a matter of principle

42.Ms Li further argues that, as a matter of principle, an injunctive relief cannot be granted at the suit of a private individual to restrain a public wrong (unless the acts complained of amounts to invade some private rights belonging to him).  She says it is so because public nuisance is about infringing the right of the public generally, and an application for an injunction to protect that right should only be made by the SJ for the benefit of the general public.  She prays in aid of the authority of Gouriet v UPW [1978] AC 435 at 481 to support her submissions.

43.With respect, I think there is nothing in this argument.

44.Relevant for the present purposes, the facts in Gouriet are these: the Post Office Workers Union announced that they would call upon their members not to handle any mails from UK to South Africa to protest against the South African government’s then apartheid policy.  The threatened actions could well amount to an offence under the various provisions of the Post Office Act and the Telegraph Act.  A private citizen (Mr Gouriet) brought a claim against the trade union in public nuisance, seeking an interlocutory injunction to restrain the union from carrying out the threatened acts.  Mr Gouriet brought the action in his own name after the Attorney General had refused to bring a relator action at his invitation.  The Court of Appeal by majority initially granted the injunction on an urgent basis.  The defendants appealed to the House of Lords.  The House of Lords allowed the defendants’ appeal and concluded that no injunction should be granted as the plaintiff could not maintain a private claim in public nuisance.

45.It is important to note that this case was decided on the pertinent fact that Mr Gouriet sought to bring a claim in public nuisance purportedly under the right as enjoyed by all members of the public to see that the law be obeyed and to prevent offences from being committed.  He was not claiming that he had any special interest in the transmission of mails or messages to South Africa and was likely to suffer any special damage from the non-transmission.  See: Gouriet, at p 476B-C.

46.It was, among others[12], in this context that Lord Wilberforce made the observations at pp 477E and 481F-H relied on by Ms Li as follows:

“A relator action – a type of action which has existed from the earliest times – is one in which the Attorney-General, on the relation of individuals (who may include local authorities or companies) brings an action to assert a public right. It can properly be said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney‑General enforces them as an officer of the Crown. And just as the Attorney-General has in general no power to interfere with the assertion of private rights, so in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out.

…

These and other examples which can be given show that this jurisdiction – though proved useful on occasions – is one of great delicacy and is one to be used with caution.  Further, to apply to the court for an injunction at all against the threat of a criminal offence, may involve a decision of policy with which conflicting considerations may enter.  Will the law best be served by preventive action?  Will the grant of an injunction exacerbate the situation?  (Very relevant this in industrial disputes.)  Is the injunction likely to be effective or may it be futile?  Will it be better to make it clear that the law will be enforced by prosecution and to appeal to the law-abiding instinct, negotiations, and moderate leadership, rather than provoke people along the road to martyrdom?  All these matters – to which Devlin J justly drew attention in Attorney-General v Bastow [1957] 1 QB 514, 519, and the exceptional nature of this civil remedy, point the matter as one essentially for the Attorney‑General’s preliminary discretion. Every known case, so far, has been so dealt with: in no case hitherto has it ever been suggested that an individual can act, though relator actions for public nuisance which may also involve a criminal offence, have been known for 200 years.”

47.Under the law of public nuisance as I have discussed above, a private individual (such as Mr Gouriet) who has suffered no special damage above and beyond the one suffered by the general public at large of course cannot bring an action and then to obtain an interlocutory injunction.  It is trite that under those circumstances that it is for the AG to bring an claim, and the AG has discretion to decide whether to do so or not, after taking into account of all relevant considerations (some of which as identified by Lord Wilberforce in the quoted passage above).

48.It can therefore be immediately seen that Gouriet is clearly distinguishable from, and thus not applicable to, the present case where a private individual who has shown to have suffered a special damage by reason of the public nuisance.  The law has already established that he has a right to bring a private individual claim in public nuisance[13].  There is no doubt that such a personal claim brought in public nuisance could seek the relief of an interlocutory injunction.  There are many instances where an interlocutory injunction was granted[14].

49.For these reasons, I would also reject any contentions that generally no injunction should be granted in a personal claim in public nuisance.

B2.1.4  Material non-disclosure

50.Mr Dykes also submits that the plaintiffs in these actions are guilty of material non-disclosure, and thus the ex parte injunctions should be set aside.

51.Mr Dykes’ submissions in relation to the Taxi Operators Action are as follows[15].

52.First, counsel says Mr Lai’s Affirmation only claims that at least 65% of the HKTA Members operate mainly on the Kowloon side.  This, Mr Dykes submits, is not enough as the evidence should disclose what percentage of this 65% members travel across the Blocked Area, as this is the material figure relevant to the question of whether the plaintiffs have suffered particular and substantial damage.  Without disclosing this material and relevant figure, the plaintiff is guilty of material non‑disclosure.

53.I do not agree.  The plaintiff’s case on particular and substantial and direct damage is advanced upon the basis that all the members suffer loss as a result of the general decrease in passengers by reason of the general traffic congestion over the roads in Kowloon and Hong Kong Island caused by the Blocked Area.  It is therefore not material for them to show what percentage of the drivers pass the Blocked Area per se every day.

54.Second, Mr Dykes says Mr Lai’s evidence is that the revenue of each taxi has been significantly reduced as a result of the serious road congestions in Kowloon and Hong Kong Island.  Counsel submits it is unclear as to how the Blocked Area could have created all these matters since:

(1)  As Mr Lai fairly accepted, traffic blockages and serious road congestion occurred in places far away from the Blocked Area, including Hong Kong Island.  It must be obvious that such general description cannot prove what damage, if any, was caused specifically by occupation of the Blocked Area alone.  The plaintiffs have not produced any evidence in this regard.

(2)  There are allegations that rental of taxis and income of taxi drivers have dropped.  Notwithstanding these are bare assertions, it is difficult to see how these allegations are caused by occupation of the Blocked Area alone.

(3)  Even if it is assumed for the benefit of the plaintiffs that some taxi drivers have been reluctant to provide taxi services since the Occupy Central movement, it is difficult to see the necessary connection between this and occupation of the Blocked Area.

55.Properly understood, Mr Dykes’ above submissions relate to how he analyses and disagrees with Mr Lai’s evidence in supporting the plaintiffs’ case.  It has nothing to do with material non-disclosure.

56.I therefore reject Mr Dykes’ arguments that the plaintiffs in the Taxi Operators Action are guilty of material non-disclosure.

57.Mr Dykes’ submissions on material non-disclosure in the Minibus Manager Action are as follows[16].

58.First, he says it is misleading for the plaintiff in the Minibus Action to say at length in Mr Lam’s affirmation that (a) the Olympic Station Route is the most profitable route and that the other routes are either not as profitable or even making a loss, and (b) the income of the drivers of minibus of the Olympic Station Route has dropped significantly after the occupation of the Blocked Way.  This is so since it is Mr Lam’s own evidence that the plaintiff receives a fixed monthly management fee of $1,000 from each minibus owner.  This income is thus not dependent upon whether the Olympic Station Route is the most profitable of all the routes under the plaintiff’s management and whether the income of the drivers has dropped.  This evidence is thus introduced to confuse and mislead the court on the effect of the occupation on the plaintiff’s financial position[17].

59.I do not accept that this amounts to material non-disclosure.  As I explained above, properly looked at, Mr Lam’s evidence is to the effect that because of the drop of the drivers’ incomes under the Olympic Station Route as a result of the obstructions of the Blocked Way, they have paid the owners less for the rentals of the minibuses, and the owners then in turn threatened not to pay the plaintiff the management fees.  Thus, this part of the evidence is to show that there is a real risk that the plaintiff would suffer serious financial loss (because firstly this route is the most profitable one of all the routes, and secondly that the owners’ threat not pay the management fees is a genuine one).  This in my view is relevant to the ex parte judge’s determination as to whether the plaintiff will suffer a foreseeable loss as a result of the public nuisance.  It is also pertinent to note that Mr Lam has in fact expressly and clearly stated in the evidence that the plaintiff receives a fixed monthly fee from each owner.  There can be no misleading in the evidence in this respect.

60.Second, Mr Dykes submits that Mr Lam in his affirmation has not said that the plaintiff could not have arranged some of the minibuses to other routes so that the plaintiff can still enjoy the same monthly management fee.  It is further submitted that in particular, the plaintiff has not disclosed whether it has rerouted some of the minibuses since the OCC.  At the same time, Mr Ng (the 2^nd defendant) has filed an affirmation to say that there are no regulatory route restrictions on red minibuses and thus they are free to change route.  This amounts to (contended by Mr Dykes) again misleading material non-disclosure to create or exaggerate the situation about the minibus drivers’ loss of income.

61.I am equally not convinced by these submissions.  First, Mr Lam’s affirmation has in fact dealt with the question of rerouting.  It is his evidence that although it had considered rerouting the Olympic Station Route so as to reach at least the end of the Olympic Station stop, this would have resulted in skipping the most popular Mongkok stop and also increased the average commute time by 15 minutes.  This is therefore considered to be unworkable[18].  There is no evidence to show what Mr Lam has said is clearly wrong.  There is in my view no material non disclosure in this part of the evidence as submitted.  Second, the submissions that Mr Lam has not said the minibuses in this route cannot be arranged to join the other routes is also a non-point, in light of the unchallenged evidence that the other routes are either not profitable or even running at a loss which means.

62.Third, Mr Dykes has sought to point out various doubts on Mr Lam’s evidence of a signature campaign where various owners’ drivers had signed to threaten not to pay the plaintiff’s management fees[19].

63.I must say that even taking those doubts to the highest, Mr Dykes at best can only say that the document produced can be subject to vigorous challenge by way of cross-examination at trial.  At this interlocutory stage, this court clearly cannot conclude that the document is not credible and cannot be relied upon. The mere fact that the document can be subject to challenge at trial itself cannot be a proper basis to say that there is material non-disclosure.

64.Finally, it is submitted that Mr Lam’s evidence that that the plaintiff would not be able to pay the expenses for October 2014 and could be wound up imminently if the injunction is not granted given the threat of non-payment of the management fees is “a pack of lie or deliberate statement to mislead the court”.  Mr Dykes in his skeleton at paragraph 16(16) seeks to demonstrate this by providing a critical analysis of the statement of account produced by the plaintiff in support of its case.  It is also said that Mr Lam seeks to “create an impression that [the plaintiff] only had a Bank of East Asia Account with a balance of HK$62,212.06” but it appears to have a Bank of China current and savings account as indicated in the statement of accounts.

65.Again, Mr Dykes’ submissions taking to the highest only suggest that the plaintiff’s case and evidence on the imminent adverse financial impact can be subject to serious challenge at trial.  I do not think I can come to any conclusion at this interlocutory stage that this position is “a pack of lie” so as to “mislead the court”.  As to the existence of the other bank accounts, it is clear that these bank accounts and the balances thereof have been shown in the statement of accounts.  The fact that no underlying bank statements have been adduced in my view per se cannot be said to be misleading the court, unless there is now clear evidence (and there is none) to say the figures represented are or cannot be correct.  I therefore also reject the contention that there is material non disclosure on this basis.

66.I therefore do not accept that there is material non disclosure on the part of the plaintiff in the Minibus Action.

67.For all the above reasons, I would reject all the 2^nd and 3^rd defendants’ contentions on why the injunction should not be continued on an inter partes basis.

B2.2  Balance of convenience - should the injunction be granted and continued?

68.After rejecting the defendants’ above contentions, it is still necessary for me to consider whether I should continue the Mongkok Injunctions as sought on the question of balance of convenience.

69.In this respect, I would simply and respectfully agree and adopt Poon J’s analyses as set out in his judgment[20] at paragraphs 15 to 34 (as there are no material changes since then and no opposing defendants have raised any further arguments to say those analyses are inapplicable or inappropriate) and come to the clear view that in the present case the balance of convenience lies obviously in favour of granting and continuing the injunctions.

70.I would further add that, in case I were wrong in the above on the question of material non-disclosure, after setting aside the ex parte injunctions on that basis, I would still have re-granted them on an inter partes basis as I think the circumstances of the case justifies that given the above analyses.

71.I would therefore continue the Mongkok Injunctions in the terms as I have revised at the hearing on 26 October 2014 until trial or further order of the court.

72.I now proceed to consider the applications under the CITIC Tower Action.

B3.   The CITIC Tower Injunction

B3.1  Background

73.The relevant background leading in this action is not in any controversy.  Relevant for the present purposes, I would generally adopt what has been summarised in the plaintiff’s skeleton as follows.

74.CITIC Tower is located at the intersection of Tim Mei Avenue and Lung Wui Road in Admiralty.  The vehicular entrance of CITIC Tower which leads to the car parking floors in the building is located at Tim Mei Avenue.  Vehicles can enter Tim Mei Avenue either from Lung Wui Road or Harcourt Road.  The Emergency Vehicular Access (“EVA”) to CITIC Tower is along the building perimeter abutting on Tim Mei Avenue.

75.CITIC Tower’s car park comprises of 201 car parking spaces over eight levels.  Further, there are loading and unloading bays for lorries and trucks on the lower ground floor level (LG Floor) of the car park.  The only point of access to the car park of CITIC Tower and the loading and unloading bays for lorries and trucks is via the ingress and egress point of CITIC Tower at Tim Mei Avenue (“Car Park Entrance”).

76.CITIC Tower has five fire exits.  Staircase fire exit number 3 (“Fire Exist No 3”) serves all floors from 29/F to the ground floor; and staircase fire exit number 4 (“Fire Exit No 4”) serves 3/F to the ground floor.

77.The lot on which CITIC Tower is erected is held under Conditions of Sale which contain the Special Conditions that the Plaintiff would provide suitable means of access for the passage of Fire Services personnel and Fire Services appliances, to maintain such means of access, and to keep the same free from obstruction.  Further, the plaintiff has a positive obligation to ensure the EVA is kept free from obstruction at all times.

78.From about 28 September 2014 onwards, Tim Mei Avenue and Lung Wui Road were completely obstructed by the 1^st defendants, rendering it impossible for motor vehicles to ingress or egress CITIC Tower.  The 1^st defendants also blocked the EVA as well as Fire Exits No 3 and No 4.  The blockages at Lung Wui Road near Performance Arts Avenue and Tim Mei Avenue Eastbound were removed by the Police in the morning of 13 October 2014.  However, the blockages at Lung Wui Road and at the entrance of the run-in of the car park and the blockages at Fire Exit No 4 continue to this day.  The blockages at Fire Exit No 3 were once removed at around 2:40 pm on 20 October 2014 by firemen[21].  However, the blockage has been later reinstated by the 1^st defendants by placing steel barriers across Fire Exit 3[22].

79.The 1^st defendants’ blockage has therefore prevented access to Fire Exit Nos 3 and 4 and.  This has exposed the occupants of CITIC Tower to a serious risk of safety as important escape routes have been denied to the occupants.  The plaintiff is also exposed to huge potential liability at the suit of the occupants.  On 14 October 2014, an elderly lady was trapped in stairway no 3 for about 45 minutes because of the obstruction at Fire Exit No 3.  Fortunately, there was no fire or smoke at the time; but blockage of fire exists creates a serious fire hazard.

B3.2  The plaintiff’s case on its loss and damage

80.The plaintiff’s evidence shows that it would suffer loss and damage by reason of the blockages caused by the 1^st defendants as follows.

81.A portion of the car park spaces in CITIC Tower are let on a monthly basis yielding an average of about HK$450,000 a month, while the remaining car park spaces are used for hourly parking, yielding an average of about HK$4,500 per day.  The blockage of the Car Park Entrance results in continuous and substantial loss to the Plaintiff.

82.The plaintiff’s rental income has from the shops and offices also been adversely affected, but it is much more difficult to quantify this loss.  Existing tenants including those whose agreements are coming up for renewal have complained and have raised or are likely to raise demands for reduction in rent.  The plaintiff has also faced difficulty in letting out space presently available for letting within the building[23].

83.As a result of the 1^st defendants’ blockage of the Car Park Entrance, the disposal of the waste of CITIC Tower has had to go through the office lobby, severely affecting its hygiene and environment.  Since the unloading bays at the Car Park Entrance are inaccessible, this also affected utility and delivery vehicles from accessing CITIC Tower for regular repair and maintenance, such repair and maintenance including the effective removal of solid and liquid waste from the pipes and manholes of the property.  This poses a health and safety risk to the occupants at CITIC Tower[24].

84.The increase in manpower necessary for managing CITIC Tower properly in light of the 1^st defendants’ actions also led to an increase in its operation costs[25].

85.In summary, the blockages have significantly interfered the plaintiff’s use of CITIC Tower.  In particular they have completely prevented the Car Park (which offers hourly and monthly parking) from being used and caused and would continue to cause the plaintiff loss in the form of rental income.  They have also caused serious potential hazards (in case of fire and any other emergencies) to the people working in and visiting the offices and retail premises within CITIC Tower as the EVA and Fire Exit Nos 3 and 4 are blocked, resulting in exposing the plaintiff to potential and significant liability at the suit of the occupants which may not be covered by insurance.

B3.3  The plaintiff’s failed efforts to seek to remove the blockages

86.CITIC Tower is managed by CITIC Tower Property Management Company Limited (“PMC”).  Personnel of the plaintiff, PMC and the Building Management Office of CITIC Tower had since 28 September 2014 attempted to negotiate with the 1^st defendants, but the 1^st defendants had refused to cooperate[26].

87.PMC also wrote to Kong Wan Fire Station on 11 October 2014 and to Central Police Station on 15 October 2014 to seek the professional assistance of the Fire Services Department and the Police.  It would appear that there was little either could do as:

(1)  Even though on 11 October 2014 firemen came to CITIC Tower, they said that they could only refer the case to the Police;

(2)  PMC had not yet received a response from the Police.

88.The unchallenged evidence also shows that both before obtaining and even after the CITIC Tower Injunction was granted, the plaintiff has attempted a number of times without any success to remove any of the obstacles blocking the above vehicular access to and exits from CITIC Tower, as these attempts had been obstructed by the unidentified defendants. The evidence shows further that, even if the plaintiff managed at times to remove some of the barriers or obstructions, further and even more secured obstructions or barriers would be quickly reinstated by the 1^st defendants to maintain the blockages.

B3.4  The 2^nd defendant

89.The 2^nd defendant, Ms Wong, is a student of the Institute of Education.  She does not claim that she is one of those protestors or demonstrators who have placed, maintained or sought to maintain the blockages near CITIC Tower as described above.

90.However, since 28 September, she says she has been attending lectures held on Tamar Park as part of the student boycott programme organised by the Federation of Students.  Because of the location of Tamar Park, she has to “traverse on Tim Mei Avenue to walk to there from time to time”.  It is because of that that she asked to be joined in these proceedings to seek to set aside the ex parte injunction (and presumably the continuation of it), as she believes that the inclusion in the descriptions of the 1^st defendant and the term of the injunction reference to persons who have “otherwise done any act to cause obstruction” is too wide.  This, she complains, would have caught someone like her, who may have only been physically present at the protest site on Tim Mei Avenue from time to time[27].

91.She therefore asks the injunction to be set aside or alternatively revised to narrow its scope.

B3.5  Whether the CITIC Tower Injunction should be continued

92.I now look at whether the injunction should be continued by applying the relevant principles.  In this respect, it is important to note that none of the 1^st unnamed defendants appears at the hearing to oppose the application, while the 2^nd defendant as mentioned above only opposes the injunction on the grounds that the descriptions of the 1^st defendants and the scope of the injunction as granted are too wide. I would deal with these objections later, after considering the general principles.

B3.5.1  Serious issues to be tried

93.The plaintiff’s present claim is made in public nuisance and private nuisance.

94.With the above uncontroversial evidence of the blockages and their effect on CITIC Tower, it is clear that the plaintiff’s has a good cause of action in bringing a claim:

(1)  In public nuisance: The obstructions of the roads amount to public nuisance, and the evidence summarised above shows that the plaintiff as a private individual has suffered and would continue to suffer a particular, substantial and direct damage caused by the nuisance.  See also paragraphs 19-21 above.

(2)  In private nuisance: The owner of the property adjoining the highway has a common law right of access to the highway which is a private right remediable by an action of private nuisance.  See: Marshall v Blackpool Corp [1935] A C 16 at 22 per Lord Atkin; Winfield & Jolowicz, 19^th ed, paragraph 15-076; Clerk and Lindsell on Torts, 20^th ed, paragraph 20-180.

95.As I said above, no one is raising any arguments otherwise.

96.The plaintiff has therefore clearly shown a serious issue to be tried.

B3.5.2  Damages adequate remedy and balance of convenience

97.Damages are unlikely to be a sufficient remedy for the plaintiff as (a) there is nothing to show that the unnamed defendants are in a position to compensate the plaintiff’s financial loss, and (b) in any event, damages would not be an adequate remedy for the continuing health and safety hazard posed by the blockages of EVAs, Fire Exits and indirectly by the failure of the plaintiff to carry out necessary repair and maintenance work to pipes and manholes.

98.At the same time, it is unclear what damage the defendants would suffer if the interim injunction is later shown to be wrongly granted.  There is no suggestion that the defendants’ freedom of expression could not exercised without causing the nuisance in the way as interfering the plaintiff’s use of its property.

99.On this basis alone, the injunction should thus be continued.

100.For the sake of argument, even if I have to consider the question of balance of convenience, similarly adopting what Poon J has said in the Taxi Operators Action and the Minibus Manager Action on the question of balance of convenience (as I have adopted at paragraph 69 above), this is a clear case where the balance of convenience weighs in favour of continuing the CITIC Tower Injunction.

101.Thus, subject to further considering the objections now raised by the 2^nd defendant (which I would next proceed to), I will continue the CITIC Tower Injunction.

B3.5.3  The 2^nd defendant’s contentions

102.Mr Manzoni SC for the 2^nd defendant raises essentially the following arguments.

103.First, Mr Manzoni submits that the plaintiff should not have proceeded to apply for the injunction on an ex parte basis on 20 October, as there was no material urgency (given that the blockages had been there for weeks) or secrecy to justify it.  On that basis alone, says Mr Manzoni, the ex parte injunction should be set aside.

104.Mr Benjamin Yu SC for the plaintiff submits that, the concern of the growing health and safety hazards caused by the blockages, in particular after the plaintiff’s failed efforts to negotiate with the protestors and to enlist the assistance of the Fire Services Department and Police to remove some of the blockages, justifies the urgency to make the application on an ex parte basis.  Leading counsel also says that the plaintiff was not guilty of any delay as:

(1)  The plaintiff had not been sitting on its hands.  It had communicated with the 1^st defendants repeatedly to try to persuade them to clear or to permit the plaintiff to clear the blockages, and had sought assistance from the Police and Fire Department with no success.

(2)  The plaintiff was forced to take legal recourse when it became clear that no other way was available and that the defendants were likely to maintain the indefinite blockages of access to CITIC Tower.

105.I agree with Mr Yu’s submissions.  In my view, when it comes to the risks of personal safety (as the Fire Exits, EVAs and all the vehicular access to CITIC Tower have been unquestionably blocked) and no one can say or predict when an emergency (such as the breaking out of a fire or someone suffering from an urgent medical condition) may occur, there is justification for urgency for the plaintiff to apply for the injunction on an ex parte basis.

106.In any event, even if I were to set aside the ex parte injunction on the basis as submitted by Mr Manzoni, I would have no hesitation to re‑grant it on an inter partes basis for the reasons I have set out above.

107.Second, Mr Manzoni argues that the descriptions of the unnamed 1^st defendants and the terms of the injunction in including the words “or otherwise done any act to cause obstruction” of the vehicular or pedestrian passage at Tim Mei Avenue or Lung Wui Road which block vehicular or pedestrian access to CITIC Tower are simply too wide.  He submits that the descriptions would have caught innocent people, such as the 2^nd defendant, who may be doing an entirely lawful act, such as simply crossing Tim Mei Avenue or Lung Wui Road (in particular when at the moment the other nearby pedestrian pathways may have been blocked), or happens also to stop by on the road to talk to someone or pick up something.  This is so as the 2^nd defendant’s said lawful acts of crossing the roads would be caught by the words “to cause obstruction” of Tim Mei Avenue or Lung Wui Road simply by being physically present on the road.

108.With respect, I am unable to accept Mr Manzoni’s submissions.  The descriptions must be read with common sense and in context.  The relevant parts of the descriptions and the terms of the injunction are to restrain the obstructions of Tim Mei Avenue and Lung Wui Road which would prevent vehicular and pedestrian access to CITIC Tower.  Those words are clearly and objectively meant to cover only those acts where a person is blocking the vehicular access to and from CITIC Tower through Tim Mei Avenue and Lung Wui Road for such time and extent that is objectively unreasonable.  The words could not have objectively understood to include any acts which would only cause a brief period of obstruction of the concerned vehicular and pedestrian access.  Thus, the acts of crossing those roads, even with a stopping by to chat or picking up something, clearly and objectively cannot be caught by these words.  Any reasonable persons in such circumstances would have moved away or given way to allow vehicular passage to enter into or leave CITIC Tower.

109.Third, Mr Manzoni submits that the terms of the injunction by reference to the entire Tim Avenue and Lung Wui Road are also too wide for an interlocutory injunction, which is granted on the basis of the existence of triable issues on the plaintiff’s claim.  He submits that, in the circumstances as the present case, in particular where the SJ has not acted to bring a claim for injunction in public nuisance, the court should strike a balance and only grant an injunction on terms which are least intrusive of effecting interference of the defendants’ right: The Mayor Commonality and Citizens of London v Tammy Samede 2012] EWCA (Civ) at paragraph 51.

110.Mr Manzoni however fairly accepts that, under this argument, it is for the 2^nd defendant to persuade the court that there is another less intrusive term of the order that (a) would achieve similar effect provided under the original order, and (b) is workable in practice. See Samede, supra, at paragraph 53.

111.Mr Manzoni has provided two alternatives of the scope of the injunction which he says is less intrusive than the original terms of the injunction but would be sufficient to enable the objective of the injunction to allow vehicular access to CITIC Tower.  Instead of requiring the clearance of the entire Tim Mei Avenue and the Lung Wui Road as provided under the original terms, these two alternatives effectively provides clearance of part of the south bound lanes (instead of both the south bound and north bound lanes) of Tim Mei Avenue and part of the west bound lane (instead of the entire west bound and east bound lanes) of Lung Wui Road.  The two alternatives only differ in whether to include the relevant pedestrian walkway along Lung Wui Road in the injunction as well. 

112.Counsel however accepts that for any of these two alternatives to work, it would require the police’s coordination to implement a traffic control of a two-way traffic operation over the south bound lane of Tim Mei Avenue and the west bound lane of Lung Wui Road (which are originally under one-way traffic) so that vehicles can come and go along these lanes.

113.I am unable to accept these alternatives as the 2^nd defendant has not shown that they are workable in practice.  In both alternatives, before having any evidence to say whether it is feasible for the police to implement the two-way traffic operation as verbally suggested by Mr Manzoni at the hearing, the court cannot simply assume that it can and would be done.  The court is not in a position to know whether there are any practical or otherwise difficulties in implementing the suggestions.

114.In the premises, I am not persuaded by any of the 2^nd defendant’s above arguments to say why the injunction should not be continued or that the descriptions of the unnamed defendants and the terms of the injunction should be revised and narrowed.

B3.5.4  Conclusion on the continuation of the CITIC Tower Injunction

115.For all the above reasons, I would continue the CITIC Tower Injunction until trial or further order of the court.

C.   DIRECTIONS ON ENFORCEMENT

116.The unchallenged evidence shows[28] that, since the granting of the ex parte injunctions in all three actions by Poon J:

(1)  The unnamed defendants en masse (and many of them wearing masks) have refused to comply with (and also in continuing breach of) the court orders by continuing to maintain (and in fact reinforce) the obstructions on the Blocked Area, the Blocked Way and near CITIC Tower;

(2)  The unnamed defendants en masse (any many of them wearing masks) have in breach of the court orders prevented the plaintiffs from removing those obstructions;

(3)  In relation to the CITIC Tower Injunction, there were public figures who went to CITIC Tower where the blockages are and (in front of the defendants) openly said to the plaintiff’s staff who were seeking to enforce the injunction that they should not do anything until the inter partes hearing, on the purported reason that the injunction was only granted on an ex parte basis.

117.In short, the plaintiffs have not been able to enforce the ex parte injunctions, and the unnamed defendants en masse have openly flouted and in continued breach of them.

118.The plaintiffs have therefore all asked this court to make the following directions to facilitate the enforcement of the court orders:

(1)  The bailiff do take all reasonable and necessary steps to assist the plaintiff and its agents to effect clearance and removal of the relevant obstructions until further order;

(2)  The bailiff be authorised and directed to request the assistance of the Police where necessary;

(3)  Any Police officer be authorised to arrest and remove any person who the Police officer reasonably believes or suspects to be in contravention of this order provided that the person to be arrested has been informed of the gist of the terms of the court order and that his action is likely to constitute a breach of the order and that he may be arrested if he does not desist.

119.I would refer the first two directions as “the bailiff directions” and the last one “the police authorisation direction”.

C1.   The bailiff directions

120.There are no questions that the court could direct bailiffs to assist in the carrying out of court orders.  Thus, none of the opposing defendants seek to raise any objections to the bailiff directions.

121.I have no hesitation in granting the bailiff directions in light of the circumstances of the present case as summarised above.

C2.   The police authorisation direction

122.I now turn to look at the police authorisation direction.

123.Any person who obstructs the bailiff’s performance of his duties would be in criminal contempt of the court:

(1)  An intention and act to interfere with or impede the due administration of justice is a criminal contempt: Halsbury’s Laws of England, Vol 22, paragraph 5.

(2)  Thus, a person who, with knowledge of a court order, and deliberately impedes the bailiff in the due execution of his duties has both the requisite actus reus and mens rea of a criminal contempt as his conduct intentionally and deliberately interferes with or impedes the due administration of justice: AG v Times Newspapers [1992] 1 AC 191 at 208E‑F, 208H-209B, 216A-D; Dobson v Hastings [1992] Ch 393 at 402D-403D.

(3)  It is therefore a criminal contempt to obstruct or impede a bailiff in the execution of his duties: Halsbury’s Laws of England, Vol 22, paragraphs 17 and 49.

124.Criminal contempt is a common law offence punishable by imprisonment: Arlidge Eady & Smith on Contempt (4^th ed), paragraph 3-67.

125.At the same time, Police are empowered under the Police Force Ordinance (Cap 232) to arrest a person suspected of being guilty of criminal contempt as:

(1)  Under s 50(1)(a), it shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of any offence for which a person, among others, may (on a first conviction for that offence) be sentenced for imprisonment;

(2)  Under s 10(j), the duties of the police force shall include taking lawful measures for executing summonses, subpoenas, warrants, commitments and other process issued by the courts.

126.In the premises, a police officer is empowered in law to arrest any person who he reasonably believes or suspects of being guilty of criminal contempt (which is publishable by imprisonment on a first conviction) in obstructing or impeding the bailiff in executing his duties in enforcing a court order, such as the injunctions granted herein.

127.Thus, the police authorisation direction is only to re-state what the law has empowered the police to do.

128.The defendants in all three actions however oppose the making of the police authorization direction as sought.  They raise the following in principle arguments.

129.First, Mr Dykes and Ms Li both submit that even though they are empowered to do so under the law, the police on the field have a discretion to decide whether or not to make any arrest after taking into account the actual circumstances and perhaps other relevant considerations on the ground.  The court should not interfere or fetter such discretion so that the police on the ground can decide what is best to do according to the actual circumstances of the events.

130.This cannot be a valid in principle objection to make the police authorization direction.  The term of the direction does not compel or direct the police to make an arrest.  It only re-states the position of the law that that the police are authorised to do so.  The direction therefore does not take away or fetter in any way the police’s discretion as submitted by Ms Li and Mr Dykes.

131.Second, Mr Manzoni argues that the court has no jurisdiction to make such a direction as it is prohibited from doing so by s 21A(1) of the High Court Ordinance (Cap 4).

132.S 21A provides relevantly as follows:

“(1) Subject to section 21B, a person shall not be arrested or imprisoned to enforce, secure or pursue a civil claim for the payment of money or damages except under an order of Court; and the Court shall have jurisdiction to make such an order for arrest or imprisonment only to enforce, secure or pursue a judgment for the payment of a specified sum of money.

….

(6) This section shall not affect any jurisdiction of the Court to make orders of committal in relation to –

(a) contempt of court; or

(b)  disobedience of a judgment or order of the Court.”

133.Mr Manzoni says s 21A(1) therefore provides that the court cannot make an order to effect an arrest in civil claims generally except for the enforcement, securing or pursuance of a judgment for payment of sum.

134.With respect, I do not agree.  S 21(A)(1) on its own terms deals with only a civil claim for payment of damages or sum of money.  It does not cover or apply to all civil claims generally, such as a claim for an injunction.  Further, the police authorization direction relates to authorizing the police to arrest persons suspected for being guilty of a criminal contempt, which is clearly not intended to be covered by s 21(A)(1).  In any event, the exceptions provided at s 21A(6) in my view makes this clear.

135.I therefore also reject this submission.

136.Finally, all the represented defendants submit that it is simply not necessary for the court to make such a direction, since if as a matter of law the police are already authorised to so, it is superfluous to include such a direction in the order.

137.However, I am of the firm view that it is necessary to include the direction in light of what have happened after the granting of the ex parte injunction orders.  I will explain why.

138.Hong Kong has always adhered to the concept of rule of law.  This concept is treasured and has always been jealously guarded by the general public.  It is universally regarded that the rule of law is one of Hong Kong’s most important foundations that has led to her being a civilised, safe and orderly society.

139.The concept of the rule of law must include and embrace the notion that every resident and the government alike should obey and comply with the law.  As said by Hartmann J (as the learned NPJ then was) in Secretary for Justice v Ocean Technology Ltd (t/a Citizens’ Radio) [2010] 1 HKC 456 at paragraph 9, the concept of rule of law means that every resident of Hong Kong are governed by and bound to the operation of the law.

140.Under the rule of law, even if the defendants are of the view that a court order (including an ex parte order) is wrongly granted, instead of simply disobeying it, they should first comply with it but seek to challenge and argue against that order in court under due process and in accordance with the law.  As said by Hoffmann LJ (as Lord Hoffmann then was) in Department of Transport v Lush (unreported, 29 July 1993)[29]: “…the law cannot allow obedience of its orders to be a matter of individual choice even on grounds of conscience”.

141.It is therefore wrong for any suggestions that the rule of law is not undermined or under challenged if people can freely or intentionally disobey the law first and then accept the consequences of breaking the law.  The rule of law cannot realistically and effectively operate in a civilised and orderly society on this basis.

142.The upholding of the rule of law must therefore be built upon, among others, the due administration of justice for the enforcement of court orders and the law.  This is also one of reasons why the independence of the Judiciary, and the respect for the dignity and authority of the court are fundamental tenets of the concept of the rule of law.

143.However, recent events relating to these actions have shown that there is a real risk that the due administration of justice and the respect for the authority of the court, and therefore the rule of law in Hong Kong, would be seriously undermined:

(1)  As I have mentioned above, the ex parte injunctions, which are valid and proper court orders until set aside, have been openly disobeyed and flouted by the defendants en masse.

(2)  Not only that, and worryingly, there have also been repeated open suggestions by a number of public figures (including some legally trained individuals) to the public and the protestors and demonstrators en masse to the effect that ex parte injunctions need not to be complied with until they had been determined after an inter partes hearing, and that there is no challenge to the rule of law from merely disobeying civil orders, and that the rule of law is only threatened when there is disobedience of an actual order of committal for contempt of court.  As I have said above, these suggestions, with the greatest respect, are in my view wrong and incorrect and would cause the public and the defendants an unwarranted misunderstanding on the concept of the rule of law.

144.When the rule of law and the due administration of justice are at the risk of being seriously challenged and undermined, as it is now, the court must act and strive to protect and uphold them for the benefit and best interest of the general public.

145.The present circumstances therefore undoubtedly justify and call for the inclusion of the police authorisation direction in these injunction orders.  The direction would send a clear message to the defendants that civil court orders should be obeyed and about the serious consequences for breaching them.

146.Further, in MacMillan v Simpson, supra, the court granted an interim injunction prohibiting the defendants (named and unnamed) from engaging in conducts interfering the plaintiff’s logging operations at specified locations and barring members of the public from blocking a bridge.  The court order also included a provision (similar to the police authorisation direction herein) that “any peace officer [which included police officer] be authorized to arrest and remove any person who the peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this order”.

147.On appeal to the Supreme Court of Canada, the defendants challenged, among others, the appropriateness of the inclusion in the order a provision to authorize the police to arrest persons breaching the injunction.  In dismissing the appeal and in particular this challenge, McLachlin J (as she then was) observed this at paragraph 41 (p 1069):

“…I observe only that the inclusion of police authorization appears to follow the Canadian practice of ensuring that orders which may affect members of the public clearly spell out the consequences of non-compliance. Members of public need not take the word of the police that the arrest and detention of violators is authorized because this is clearly set out in the order signed by the judge. Viewed thus, the inclusion does not harm and may make the order fairer.”[30] (emphasis added)

148.I respectfully adopt McLaughlin J’s above observation.

149.As I have emphasised above, the public in general and the defendants in particular appear to be at the risk of misunderstanding the serious consequence (including the serious effect on the rule of law) of disobeying a civil court order.  Given that misunderstanding and the en masse open and persistent disobedience of the ex parte orders, there is also the real likelihood that (a) the defendants (which are in large numbers) would continue to seek to disobey the injunction orders and obstruct the bailiffs in carrying out their duties to enforce those orders, and (b) the defendants may well (mistakenly and incorrectly) dispute the police’s power to arrest them if they obstruct the due administration of justice in interfering or obstructing the bailiffs in carrying out their duties to enforce the injunctions.

150.In the premises, the police authorisation direction if included in the injunction orders would help to inform the en masse defendants the consequence of any disobedience and confirm the police’s power.  This would not only make the orders clearer and fairer, but also facilitate the due administration of justice.

151.I have therefore come to the clear conclusion that it is necessary to include the police authorisation direction in all the injunction orders.  In light of the circumstances of the present case, I would however revise the direction to the following terms:

“Any police officer be authorised to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in enforcing the terms of the injunction order herein, provided that the person to be arrested has been informed of the gist of the terms of this court order and that his action is likely to constitute a breach of the order and obstruction of the administration of justice, and that he may be arrested if he does not desist.”

D.   CONCLUSION

152.For all the above reasons, I will continue the Mongkok Injunctions (in the terms as I have revised on 27 Oct) and the CITIC Tower Injunction.  I would also make the following directions in those orders:

(1)  The bailiff do take all reasonable and necessary steps to assist the plaintiff and its agents to effect the clearance and removal of the obstructions [as provided in the respective injunction orders].

(2)  The bailiff be authorised and directed to request the assistance of the Police where necessary.

(3)  Any police officer be authorised to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in enforcing the terms of the injunction order herein, provided that the person to be arrested has been informed of the gist of the terms of this court order and that his action is likely to constitute a breach of the order and obstruction of the administration of justice, and that he may be arrested if he does not desist.

(4)  Any person so arrested by the police shall be brought before the court as soon as practicable for further directions.

153.Given that all the respective represented defendants have failed in their opposition to these applications, I further make an order nisi that they should pay the respective plaintiffs’ costs of the respective applications, to be taxed if not agreed.  There be certificate for two counsel for the plaintiffs in the Taxi Operators Action and the CITIC Tower Action.  For the represented defendants who are under legal aid, their own costs be taxed in accordance with legal aid regulations.

154.Lastly, I thank counsel for their assistance.

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

Mr Benjamin Yu SC, Mr Victor Dawes and Ms Bianca Yu, instructed by Mayer Brown JSM, for the plaintiff in HCA 2094/2014

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

Mr Philip Dykes SC and Ms Christine Yu, assigned by the Director of Legal Aid, instructed by JCC Cheung & Co, for the 2^nd defendant in HCA 2086/2014 and HCA 2104/2014

Ms Gladys Li SC, Ms Margaret Ng and Mr Michael Yin, instructed by Daly & Associates, for the 3^rd defendant in HCA 2086/2014 and HCA 2104/2014

Mr Charles Manzoni SC and Mr Earl Deng, assigned by the Director of Legal Aid, instructed by Vidler & Co, for the 2^nd defendant in HCA 2094/2014

Raymond Chen, in person, present on 24 October 2014, absent on 27 October 2014

Mr Jin Pao, instructed by Department of Justice, for the Secretary of Justice (a non-party)