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

HCMP3028/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3028 OF 2014

(ON AN INTENDED APPEAL FROM HCA NO. 2086 OF 2014)

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BETWEEN

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J U D G M E N T

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Hon Lam VP (giving the judgment of the court):

1.In this application, the 2^nd Defendant applied for leave to appeal against the order of Au J of 10 November 2014 in HCA 2086 of 2014. His application for leave was refused by Au J on 13 November 2014. He also sought a stay of execution of that order.

2.A similar application had been made by the 3^rd Defendant (HCMP 2976 of 2014) which was dismissed by us on 15 November.  Mr Dykes SC was also present at that hearing though he made no submission.  Since the enforcement issues would be the subject of the 2^nd Defendant’s intended appeal and the actual terms of the order of Au J were only finalized after a direction hearing in the afternoon of 13 November, the 2^nd Defendant withheld his application at that stage.  Solicitors for the 2^nd Defendant had written to the court on 14 November 2014 informing the court as to position of the 2^nd Defendant.  A copy of the draft summons for the 2^nd Defendant’s intended application was attached to that letter.

3.Au J settled the terms of the order in the morning of 14 November 2014.  By the time of the hearing of HCMP 2976 of 2014 before us, counsel was able to give us copies of the sealed order of Au J.

4.The revisions to the draft order did not have significant impact on the arguments on enforcement issues.  The wording added by Au J at the beginning of paragraph 5 of the order only serves to clarify that the direction to bring the arrested person before the court would not prejudice the requirements of ss 51 and 52 of the Police Force Ordinance Cap 232.

5.This is actually reflected in the terms of the actual summons issued by the 2^nd Defendant on 18 November 2014.  A comparison of the summons as issued with the draft version attached to the letter of 14 November 2014 shows that in respect of the intended grounds of appeal in relation to enforcement issues, only sub-paragraph (vi) was added.  That argument could have been advanced irrespective of the revision by Au J on 14 November.  Indeed similar arguments had been advanced in the written submissions of Mr Dykes of 12 November 2014 lodged before the hearing on 13 November.

6.Though in our view (with the benefit of hindsight) the application could have been made together with HCMP 2976 of 2014, since the 2^nd Defendant applied for leave within a reasonable time after the settlement of the order and the enforcement issues were not argued in the context of HCMP 2976 of 2014, we entertained his request to arrange for an urgent hearing of his application.  But we must sound a note of caution: the court may not adopt the same approach in any future attempts to seek leave by other defendants in the same case.

7.Amongst the proposed grounds of appeal Mr Dykes relied upon, grounds 1 to 4 (relating to the requirement of peculiar, substantial and direct damage) were similar to grounds already canvassed in HCMP 2976 of 2014 though the emphasis of Mr Dykes was slightly different.  Despite Mr Dykes’ citation of a large number of cases, we are not persuaded it is reasonably arguable that Au J was wrong in granting the injunction on the basis that there is a serious issue to be tried in that regard.  It is not necessary to repeat what we said in our judgment of 15 November 2014.  In our view, each side can derive some support from the decided cases.  However, much depends on the facts and circumstances of the particular case.  At this stage the court should not try to resolve difficult questions of law and facts.

8.Mr Dykes relied on Bradford Metropolitan Council v Brown (1986) 19 HLR 16 to contend that the judge had to be satisfied on a provisional basis that the damage claimed is exceptional.  That was a case in which a local council sought injunctive relief against gipsies camping at different sites, some of which were land owned by the council and some not.  There was no real issue as to fact in that case but issues of law were in question.  The English Court of Appeal held that the judge should have reached a provisional view on the locus standi of the council.  The question concerned the power of the council under section 100 of the Public Health Act in respect of land not owned by the council, more particularly whether the alternative summary procedure before a magistrate under ss 93 and 94(1) afforded an inadequate remedy.  As evident from what was said at p.21, the court regarded that substantial hardship would be caused to the gipsies if the question was not decided provisionally.  That had to be read against the special background that the caravans were the homes of the gipsies.

9.With respect, that was a wholly different scenario from the present case.  In light of the authorities we have discussed in our judgment of 15 November, we do not think that case established a general principle of law that whenever the right to bring proceedings is in question in an application for interlocutory injunction, such right must be determined provisionally, still less where, as here, the so‑called “right to bring proceedings” is nothing more than an essential element of the cause of action relied on, as we said in our earlier judgment.  We do not think it is reasonably arguable that the judge erred in principle in adopting the threshold of serious question to be tried before proceeding to the question of balance of convenience.  In the circumstances of the present case, for the reasons explained in our judgment of 15 November, we are of the view that this threshold is equally applicable to the question whether the plaintiff suffers particular, direct and substantial damage.

10.We do not see any reasonable prospect of success in respect of the challenge to the judge’s finding that there was no material non-disclosure at the ex parte stage.  We cannot find anything in the judge’s discussion at paras 60 to 65 in the judgment of 10 November which warrants intervention by this court in accordance with the test in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at p.220; see also SPH v SA [2014] 3 HKLRD 497 at para 65.

11.The enforcement issues principally relate to para 4 of the order [“the arrest provision”].  Para 5 is also relevant. They are in the following terms,

“4. 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 and/or this Order, provided that the person to be arrested has been informed of the gist of the terms of the Injunction Order and this Order and that his action is likely to constitute a breach of the Injunction Order and/or this Order and obstruction of the administration of justice, and that he may be arrested if he does not desist.

5.  Without prejudice to the provisions of the Police Force Ordinance Cap 232 (including s 51 and s 52 thereof),* any person so arrested by the police shall be brought before the Court, under lawful or legal processes,* as soon as practicable for further directions.”

*The words underlined in para 5 were added by the judge after the hearing on 13 November.

12.These are unusual provisions to be included in an injunction.  The judge explained at paras 123 to 151 of his judgment why he considered it appropriate to include such a provision in the present case.  In particular, he referred to the wholly exceptional circumstances where a large number of protesters, with the encouragement of some public figures, openly disobeyed and flouted the orders made by the court.

13.It is axiomatic that the rule of law will be tarnished if the legal process cannot provide any effective redress when people openly acted in defiance of a court order.  In many cases, parties come to court with conflicting interests.  The court must adjudicate impartially on such conflict in accordance with law.  Once the court makes a decision, all parties must abide by it even though the losing party may not like the outcome.  In normal circumstances, the court acts on the basis that the litigants are law-abiding citizens and its order will be obeyed.  And we hasten to say that this is a valid assumption in most cases in Hong Kong where most of us cherish the rule of law.

14.However, when it is demonstrated that the self-discipline of a litigant is not sufficient to drive him or her to comply with a court order, the court must consider imposing external sanctions or additional measures to ensure the effectiveness of its order.  It could do a disservice to the law if the court does not take steps to enhance the enforceability of its order in such circumstances.  If a party fails to get effective redress from the court process, he will lose confidence in the law.  He may even be tempted to resort to other means (e.g. self-help measures, which may be illegal) to achieve what he originally hoped to obtain through the legal process.  If such idea prevails, it will bring society into disorder, chaos and lawlessness.

15.Notwithstanding the usual law-abiding nature of the citizens of Hong Kong, in the present case the judge unfortunately had to deal with a situation where the effectiveness of court orders had to be reinforced by external sanctions and additional measures in light of the circumstances he described in his judgment.

16.It is a matter of discretion for the judge to decide what additional provisions should be added to the injunction in order to ensure its effectiveness.  We have no doubt that the court does have the power to add a provision similar to the arrest provision in an injunction when the particular circumstances of the case call for the same.  In this respect, we agree with the judgment of Justice McLachlin (as the Chief Justice then was) in MacMillan Bloedel v Simpson [1996] 2 SCR 1048 at [41].  The inclusion of such a provision serves to make clear to the members of the public who may be affected by the order the court’s firm determination in ensuring the implementation of its order and the serious consequences for those choosing to disobey the same.

17.Further, as the judge had made clear in his judgment, the arrest provision is circumscribed in scope and it does not fetter the discretion of a police officer in deciding whether an arrest should be made in the actual circumstances of any particular case.  If a defendant chooses to comply with the injunction order when he or she is asked by the bailiff to desist from the breach of it, the arrest provision will not be engaged.  If a defendant chooses to disobey and obstruct the bailiff in the execution of his or her duties, in the exceptional circumstances of the present case, we do not think it is disproportionate for the bailiff to enlist the assistance of the police.

18.Before us, Mr Dykes did not dispute that the court does have the power to include the arrest provision in an injunction.  Counsel however contended that it was unnecessary to do so given that the police could exercise their power of arrest under the general law (particularly having regard to section 23 of the Summary Offences Ordinance) and it would indeed be confusing to do so.  In particular, he submitted that there is a possibility of an arrested person being subject to unlawful detention if he has to be brought before a magistrate as well as a judge of the High Court.

19.We do not think there is any risk of confusion. As the judge had explained at paras 127 to 130 of the judgment, the arrest provision only set out what the law has already conferred on the police.  The order itself is not the source of such power.  Neither does the order confer any additional power on the police.  Further, the arrest provision does not compel the police to make any arrest.  As explained by Justice McLachlin in MacMillan Bloedel v Simpson, supra, such a provision only serves to alert persons being served with or given notice of the order the potential serious consequences for a breach of the order.  In the end, it is still a matter for the police officer to decide whether he should exercise his power of arrest as a police officer.

20.At one stage, we were concerned about whether the arrest provision places undue restrictions on the police by setting the following prerequisites: (a) informing the person concerned as to the gist of the injunction; (b) warning him that his action is likely to constitute a breach of the injunction; and (c) warning him also the possibility of his being arrested if he does not desist.  These requirements were obviously laid down for the protection of the defendants and persons against whom the bailiff takes action pursuant to the order.  On a proper reading of the order, it is clear to us that those are steps to be taken by the bailiff in the execution of his duty under the order and the person concerned will be given a last opportunity to comply with the order voluntarily.  In our view, these are steps a bailiff would have to take before a case of obstruction or interference with the carrying out of his duties can be made out.  Whether a police officer would like to repeat any of these steps before he exercises his power of arrest is entirely a matter for him to decide.  Viewed thus, these requirements cannot be regarded as undue restrictions on the proper exercise of police power.

21.As regard Mr Dykes’ submission of prolonged detention of arrested person, it arises from the provision at paragraph 5 of the order requiring the bringing of the person arrested before the High Court under lawful or legal process for further direction.

22.We do not see any problems in those respects.  First, as we said above, it is still up to a police officer to decide whether he should exercise his power of arrest and what power of arrest he exercises.  The arrest provision is only engaged if the arrest is in respect of reasonable suspicion or belief that a person obstructs or interferes with a bailiff in carrying out his or her duties in enforcing the injunction.  A police officer has other power of arrest in situations not coming within the arrest provision.  In those other situations, the arrested persons need not be brought back to the High Court pursuant to paragraph 5.

23.Even in cases where a police officer makes an arrest in a situation coming within the arrest provision, the reference to ss 51 and 52 of the Police Force Ordinance at the beginning of paragraph 5 and the reference to lawful and legal process underscored the need to observe the safeguards for the rights of an arrested person in those sections, including the discharge of such person on recognizance and the bringing of a detained person before a magistrate within 48 hours.  In other words, there is no need to keep an arrested person in custody pending his being brought before a judge in the High Court.  Thus, the making of an arrest is not the same as the committal of a person with a prison sentence.

24.Mr Dykes advanced his submission on the basis that paragraph 5 in effect required the police to remand the arrested person in custody pending his being brought before the High Court.  Mr Wong for the Plaintiff submitted that was not the intention of the judge.  He said the bringing of the arrested person before the High Court need not be the actual bringing of such person physically to the court.  It would be sufficient if the police to give notice of an appointment to attend the High Court to the arrested person.  In the meantime, bail could be granted to that person.  Reference was made to what had been said at the hearing of 13 November before Au J.

25.Having considered the arguments and with the benefit of listening to the digital recording of the proceedings on 13 November, we come to the view that Mr Dykes’ concern was unfounded whilst Mr Wong was not entirely correct. 

26.In our judgment, there is no explicit provision in the order requiring the remand of an arrested person pending his being brought before the High Court.  Nor do we think that could properly be implied.  Since, as explained above, the order was not meant to be the source of the power of arrest, how the police handle the arrested person after the arrest should also be governed by the general law.  That includes the power of the police to grant bail.  The reference to ss 51 and 52 of the Police Force Ordinance at paragraph 5 makes this tolerably clear.

27.As regard the bringing of the arrested person to the High Court, it must be construed as something to be achieved by lawful means.  We have listened to the digital recording of the proceedings of 13 November.  At that hearing, Mr Yu SC (counsel for the plaintiff in another case with similar wording in the injunction granted in its favour) contended that paragraph 5 must have envisaged the bringing of the person to the High Court in a lawful manner.  He advanced submissions on how the bringing of the arrested person could be achieved by lawful means.  He submitted that if the arrested person was granted bail but did not turn up voluntarily at the appointed time for appearance at the High Court, the police could apply for a bench warrant for the arrest of such person.  That person might then be arrested again before he was brought back to the court.  If that person appeared voluntarily, then there would not be any need for the issue of bench warrant.

28.Though the wording of para 5 can be clearer, in light of what had been discussed at that hearing, it is plain to us that Au J had accepted the submissions of Mr Yu by adding the reference to “lawful and legal process” at paragraph 5.

29.Construing the order as a whole and against the relevant background, including the discussion at the hearing of 13 November, it is clear to us that the police can grant bail to an arrested person between the time of arrest and the appointment for the arrested person to attend the High Court, if bringing the arrested person before the High Court immediately after the arrest is not practicable.  Whether bail is to be granted and what conditions should be imposed for bail should be a matter for the police as in an ordinary case after a person is arrested.  In order to comply with paragraph 5, the police must also give notice to the arrested person as to the appointment for appearance before the High Court.  Depending on actual circumstances, that notice can be given either before the release of the person on bail or afterwards.  If such person does not turn up on the appointed date and time, application can be made to the court for a warrant of arrest to secure the attendance of such person on a further appointment.

30.In light of this analysis, there is no need for concern as to the operation of paragraph 5.

31.As to the necessity for the insertion of the arrest provision in this injunction, we have no reason to fault the judge’s assessment in light of the prevailing circumstances under which the order was granted.

32.We also do not see any reason to grant leave in the interests of justice.

33.In his submission on why leave should be granted in the interests of justice, Mr Dykes contended it is important to have regard to the constitutional principle that the Secretary for Justice should be the guardian of the public interest, citing Gouriet v Union of Post Office Workers [1978] AC 435.  That question had been raised and answered by Justice McLachlin in MacMillan Bloedel v Simpson, supra, [19] and [20].

34.As far as the protection afforded by criminal law is concerned, perhaps we can do no better than by quoting from the judgment of Justice McLachlin in MacMillan Bloedel v Simpson, supra, at [34] to [36],

“34 Having considered the authorities, I turn to the practical consequences of ruling that courts cannot issue injunctions which non-parties are required to respect. Wood J.A., having concluded that the courts have no such authority, was required to face this problem. He wrote (at p. 248):

“Can the courts stand by and watch helplessly when the private rights of the individual are overrun by the mob? Should we turn our backs on the person who looks to us for help in such circumstances over an issue so apparently technical as jurisdiction? If there were no alternative solution to that individual’s dilemma, I would be quick to answer “no” to both questions. The progress of the law is an ever-evolving journey which must respond to new challenges lying within its path. Much of the jurisdiction which the Supreme Court exercises today was born out of just such necessitous circumstances.

However, in my view there is an alternative solution.  It lies in the proper discharge of the obligations which attach to the office of the Attorney General.”

Wood J.A. went on to state that it is “the responsibility of the Attorney General as the chief law enforcement officer ... to see to it that the criminal law is enforced” (p. 249).

35   Every citizen would endorse these words.  Yet, as this case demonstrates, to state the obligation of the Attorney General is not to ensure that it will be discharged in such a way as to provide the required protection to citizens injured by the conduct of others.  It is to fill this gap that the equitable remedy of injunctions -- injunctions which not only the parties but also all others must respect on peril of being found in contempt of court -- has developed. 

36   What then of the other side?  What are the dangers of empowering the courts to make orders to protect private interests which all must obey on pain of contempt?  It is fundamental that no state founded on the rule of law can permit members of the public to be detained and punished for violating an order of which they are ignorant.  If members of the public are to be charged with obstruction of justice for having disobeyed an injunction, they must first be apprised of the existence and terms of the order and be given an opportunity to comply.  That is precisely what was done in enforcing the injunctions here.  Before a protester was arrested, he or she was handed a copy of the order and its terms were read to him or her.  The protester was then asked to quit the blockade.  Most complied.  Only those who refused were arrested.  It is also desirable, as this Court suggested in International Longshoremen, supra, that the order’s terms speak of the duty of non-parties to respect it.  This, too, was done here.  Finally, it is necessary that the orders be carefully worded and constrained to ensure that they are fair and not unduly broad.  This requirement, too, was met in the case at bar. . …”

35.In our view, the order granted by Au J in the present case also satisfied these requirements.

36.We understand there are exceptional political circumstances which gave rise to the unlawful occupation in the present case. But the court has to be involved in this instance because the rights of private citizens protected by the law are said to be threatened and they seek redress from the court. In so doing, they are exercising a constitutional right conferred on them by article 35 of the Basic Law. It is the duty of the court to adjudicate upon and, where justified, give effect to such  rights according to law.  Even in cases where protesters are pursuing a noble cause which they feel strongly about (and we express no view on the protest in the case before us), this does not give them any right in the eyes of law to trample upon the rights of the others who may or may not agree with their cause.  This is an important facet of the rule of law which, as judges, we must uphold.

37.For these reasons, we refuse to grant leave to appeal to the 2^nd Defendant, and the summons of 18 November is dismissed with an order that the 2^nd Defendant shall pay the costs of the Plaintiff, such costs to be taxed if not agreed.  We also order Legal Aid taxation of the 2^nd Defendant’s own costs.

38.Last but not least, we thank counsel for their assistance.

Mr Tim Wong, instructed by CMK Lawyers, for the Plaintiff

Mr Philip Dykes SC and Ms Christine Yu, instructed by JCC Cheung & Co, for the 2^nd Defendant