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 and Another

HCMP 2975/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2975 OF 2014

(ON AN INTENDED APPEAL FROM HCA 2104/2014)

________________________

________________________

AND

HCMP 2976/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2976 OF 2014

(ON AN INTENDED APPEAL FROM HCA 2086/2014)

________________________

________________________

(HEARD TOGETHER)

Before: Hon Cheung CJHC and Lam VP in Court

Date of Hearing: 14 November 2014

Date of Judgment: 15 November 2014

_______________

J U D G M E N T

_______________

Hon Cheung CJHC (giving the judgment of the court):

1.This is the 3^rd defendant (Dominic Fok)’s respective applications in the two actions for leave to appeal from the judgment and orders of Au J dated 10 November 2014 continuing the ex parte injunctions granted by Poon J on 20 October 2014 (as subsequently modified) and giving further directions relating to the execution of the interlocutory injunctions against the defendants’ occupation of portions of Nathan Road near to and between Argyle Street and Dundas Street and of a portion of the westbound carriageway of Argyle Street between the junctions with Tung Choi Street and Portland Street respectively.

2.The facts have been fully set out in the judgments below, and it is quite unnecessary to rehearse them here for the purposes of disposing of these urgent applications for leave to appeal, and the ancillary applications for a stay of the injunctions pending appeal.

3.We take the firm view that the intended appeals have no reasonable prospect of success, and we cannot see any other reason in the interests of justice why the intended appeals should be heard.

4.The respective plaintiffs in the two actions sue on public nuisance.  They have to show that they have suffered, or would suffer if no injunctions were granted, “particular, substantial and direct damage” because of the obstruction of the public roads in question, over and above that which is suffered by the general public; failing which, only the Secretary for Justice has the right to sue – and thus far, he has not done so. For the purposes of the interlocutory injunctions, the judge proceeded on the basis that the plaintiffs had to show a serious issue to be tried regarding the question of “particular, substantial and direct damage”.  The judge, for the detailed reasons he gave in his judgment, came to the clear conclusion that such a serious issue had been shown.

5.Ms Gladys Li SC for the 3^rd defendant argues that the judge has failed to recognise the sound legal policy in placing severe restrictions against private actions in public nuisance which has led to confusion over the kind of damage which is necessary to sustain a cause of action.  She contends, in effect, that “particular, substantial and direct damage” is a jurisdictional fact which must first be established by the plaintiffs, before they can ask the court to consider granting them an interlocutory injunction.  She submits that on the evidence presented before the court, the plaintiffs have failed to show the requisite particular, substantial and direct damage to ground their causes of action.  A variation of the same theme is that when a private individual sues on a public nuisance because he alleges that he has suffered particular, substantial and direct damage, since such damage, which is a question of mixed law and fact, can only be established at trial, no interlocutory injunction should be granted because, by definition, whether the plaintiff can succeed at trial is not known. 

6.Ms Li also submits that on the unique facts of the present case, where potentially a substantial number of people may be affected by the injunctions and where service is to be by means of substituted service, the grant of the injunctions would put many people, including those who may not be aware or fully aware of the injunctions or their terms, at risk as to arrest, detention and punishment for contempt, when all that the plaintiffs have shown thus far, according to the judge, is a serious question to be tried as to whether they have suffered any particular, substantial and direct damage.  She says this would give rise to a scandalous situation if at the end of the day the plaintiffs should fail to prove particular, substantial and direct damage at trial – in other words, the injunctions ought not to have been granted and people ought not to have been punished for contempt. 

7.Ms Li also vaguely complains about the terms of the injunction orders.  In her written submissions, she also says that since the injunctions sought would have the effect of finally disposing of the matter in dispute in the plaintiffs’ favour, a higher threshold or a more critical approach to the evidence should be adopted. 

8.We disagree.  We do not accept the jurisdictional fact argument.  No authority has been cited to us to establish that point.  In particular, we see nothing in the Court of Final Appeal’s judgment in Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480, a leading local authority on public nuisance, which remotely suggests that damage is a jurisdictional fact in the sense described above.  Rather, in our reading of the cases, particular, substantial and direct damage is just one element, albeit an essential one, of the tort which has to be established at trial.

9.In our view, Ms Li’s other arguments on damage are essentially questions of assessing where the balance of convenience lies when considering the grant of the interlocutory injunctions sought.  In this regard, it has to be firmly borne in mind that the court’s jurisdiction to grant an injunction, whether interlocutory or final, is based on section 21L of the High Court Ordinance (Cap 4) which provides that where it appears to the court to be “just or convenient” to grant an injunction, the court may do so.  The cases have given various guidelines on when it is “just or convenient” to grant an interlocutory injunction, which, if granted, is, by definition, granted before the final outcome at trial is known.  It is to address this peculiar feature of an interlocutory injunction that considerations such as whether there is a serious question to be tried (so that the plaintiff’s claim is not a “frivolous or vexatious” one[1]), whether damages is an adequate remedy, and where the balance of convenience lies, come into the picture, so that the court may, putting it negatively, choose the course of “lesser evil”[2], or putting it positively, decide whether it is “just or convenient” to grant an interlocutory injunction before the final outcome at trial is known.

10.There are undoubtedly authorities which say that in cases where the grant or refusal of an injunction would in effect dispose of the action finally the court will have more regard to the prospect of success[3]. But it should be firmly borne in mind that this higher regard to the merits of the case is but one factor in the consideration of the balance of convenience. In NWL Ltd v Woods [1979] 1 WLR 1294, 1306F/G, Lord Diplock explained:

“Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction had been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial, the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this House in American Cyanamid Co. v. Ethicon Ltd. Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.”

11.In LansingLinde Ltd v Kerr [1991] 1 WLR 251, for instance, Staughton LJ observed that it was right for the judge to take into account the strength of the plaintiff’s claim in considering the balance of convenience as the grant or refusal of the interlocutory injunction sought in that case would have the practical effect of finally disposing of the action given the length of time it would take to hold a trial, but he would have been wrong to regard that as the sole consideration (p 259A to B).  See also the judgments of Beldam LJ at pp 264E/F to 268A and Butler-Sloss LJ at p 269B to D.  At p 269D to E,  Butler-Sloss LJ explained why one must have regard to the particular circumstances in each case in assessing the overall justice:

“The question arises in each application for an interlocutory injunction as to the point on a broad spectrum at which the particular circumstances of the case in question may fit in, and what additional factors there may be to place into the balance of convenience.”

12.On the peculiar facts of the present cases, the 3^rd defendant, like all other protesters, simply has no right whatsoever to occupy and block in the way the protesters do the public roads in question.  Indeed, Ms Li “accepts that any deliberate obstruction of the highway without authority is a public nuisance … [and] also accepts that such conduct would not only cause great public inconvenience and harm, but it would also be criminal” (written submissions, para 7).  In other words, if the interlocutory injunctions pending trial are granted but the plaintiffs fail at trial to establish a standing to sue on public nuisance, the 3^rd defendant (and the other protesters) will not in the meantime have suffered, by the grant of the injunctions, the loss of anything which they have ever had a right to in the first place.

13.As for the suggested prejudice to those who may have been arrested and brought before the court or even punished for contempt, particularly those who may not have been aware of the injunction orders or their terms at the time of arrest, first, everyone should obey an extant court order and it is no defence to suggest that it was wrongly issued.  Any prejudice suffered by the individual disobeying the order is caused not by the grant of the order but by his decision to disobey it.  I do not accept the suggestion of a scandalous situation arising in the event of the plaintiffs failing to prove the requisite damage at trial.  From time to time, interim relief granted by the court under widely different situations are found to have been wrongly obtained by plaintiffs who fail at trial.  That is simply an inevitable fact of life in civil litigation.  There is nothing scandalous about it. 

14.Secondly, the injunction orders specifically require the person to be arrested to be given prior warning of the contents of the order, and he may only be arrested if he persists in disobeying the order nonetheless. 

15.Thirdly, when a person is brought before the court after arrest, something which the orders require the police to do as soon as practicable, he will of course be at liberty to take all points, substantive or procedural, available to him to defend liability or by way of mitigation. 

16.We are not saying that none of these matters are relevant considerations in the balance of convenience.  What we are saying is that they are by no means determinative of the applications for injunction and in fact, they carry relatively little weight on the facts of the present cases.        

17.Contrast the position of the plaintiffs.  If no interlocutory injunctions are granted in the meantime, but the plaintiffs succeed at trial to show particular, substantial and direct damage and therefore a good claim on public nuisance, they will have suffered in the meantime further loss and damage, for which damages will likely be difficult to assess.

18.Thus, even assuming that the plaintiffs’ cases on particular, substantial and direct damage as they have managed to demonstrate thus far raise no more than a serious question to be tried, taking all other factors into account the balance of convenience is still overwhelmingly in favour of the grant of the injunctions.

19.And so far as showing a serious question to be tried is concerned, all arguments on law regarding what constitutes particular, substantial and direct damage must be a matter for more mature debate at trial, and it is impossible to say that the plaintiffs have not shown even an arguable case on the legal propositions they rely on. 

20.As for the evidence, having considered the criticisms made by the 3^rd defendant against the evidence presented by the plaintiffs, we take the view that the judge was plainly correct in concluding that there is a serious issue to be tried regarding whether the plaintiffs have suffered, and if no injunction were to be granted, would continue to suffer, particular, substantial and direct damage.  Indeed for those who earn a living or derive an income from the provision of public transport services in Hong Kong, a densely populated city with heavy traffic and serious road congestion even in normal times, their loss in earnings or income by reason of the road blockages in an area as busy and as central as Mongkok is, in our view, almost a matter of commonsense, quite apart from the evidence submitted.  Quantification of the loss is, however, quite a different matter. 

21.We see no reasonable prospect of persuading the court on appeal to take any view other than that there is a serious issue to be tried regarding the plaintiffs’ actual and potential damage.

22.All things considered, we take the view that the judge was right to continue the injunctions, this being the “just or convenient” course, or the course of lesser evil, to take, pending the trials of the actions.  We see no ground for interfering with the judge’s exercise of discretion.  There is no reasonable prospect of successfully appealing against the judge’s orders.

23.As for the wording of the order made in HCA 2104/2014, Mr Johnny Mok SC for the plaintiffs accepts that the words “near to” give rise to ambiguities regarding the exact location of the road blockage which the order is directed at.  He gives an undertaking on behalf of the plaintiffs to seek an amendment or variation of the order to excise the words “near to and” as soon as practicable, and in the meantime not to take any steps to enforce the order.  On that basis, we are minded not to exercise our discretion to give leave to appeal on that narrow ground.  Apart from this, we see nothing in the vague complaint against the wordings of the orders. 

24.The judge made observations on the open disobedience and flouting by some protesters of the ex parte injunctions granted when considering the inclusion of a police authorisation direction in the injunction orders.  We echo his sentiments.  As the police authorisation direction is not challenged by the 3^rd defendant, we would say no more about it.

25.The applications for leave to appeal are dismissed, and so are the ancillary applications for a stay of execution pending appeal.  We award (on a nisi basis) the costs, together with a certificate for two counsel (in HCMP 2975/2014), to the plaintiffs, to be taxed if not agreed.  There will be legal aid taxation of the 3^rd defendant’s own costs.  We make no order as to costs as regards the 2^nd defendant in the two actions (Ng Ting Pong).

26.We thank counsel for their assistance.

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

Mr Johnny Mok SC, Mr Jose-Antonio Maurellet and Mr Kerby Lau, instructed by Phyllis KY Kwong & Associates, for the plaintiffs in HCA 2104/2014

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

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

The 4^th defendant in HCA 2086/2014 and HCA 2104/2014 was not represented and did not appear