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 Others

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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D E C I S I O N

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A. THE APPLICATION

1.On 10 November 2014, I handed down judgment ordering the continuation on an inter partes basis of the ex parte injunction granted by Poon J on 20 October 2014.

2.Paragraph 1(a) of the injunction order (“the Order”) provides as follows:

“1. The defendants, and each of them, whether by themselves or agent or servant or howsoever, be restrained until trial or further order of the Court, from doing, any of the following acts, namely:-

(a)  Occupying portions of Nathan Road near to and between Argyle Street and Dundas Street (the ‘Area’) to prevent or obstruct vehicular traffic from passing and repassing the Area.”

3.The Order was subsequently drawn up and sealed on 14 November 2014.

4.It was later observed by the Court of Appeal at paragraph 23 of its judgment[1] (dismissing the 3^rd defendant’s application for leave to appeal) that the words “near to” under paragraph 1(a) of the Order creates ambiguity on the exact location of the subject blockages.  The plaintiffs’ leading counsel then undertook to apply to this court to amend paragraph 1(a) of the Order by deleting those words.

5.This is the plaintiffs’ application to so amend the Order.

6.As a start, it must be noted that the proposed amendment would not cause any prejudice to the defendants.

B.    THE OBJECTIONS IN SUMMARY

7.The 2^nd and 3^rd defendants both oppose the application.  The primary bases of the objection are that (a) the court has no jurisdiction to amend the Order as sought as it is functus officio after the Order has been sealed, and (b) the amendment does not fall within the court’s inherent jurisdiction to reflect its manifest intention in making the Order as an exception to the principle under functus officio.

8.As to the question of whether the amendment can be allowed by the court under the “liberty to apply” limb implied in the Order, the defendants in gist say either the provision for liberty to apply should not be implied in this Order or alternatively, the present amendment do not fall within the scope of liberty to apply.

C.    ANALYSIS

9.I have come to the clear conclusion that the court has power to amend the Order in the way as it is now sought.  My reasons are these.

10.First, it is well established that liberty to apply is implied in court orders (at least for orders which are not final) for the working out of the order where necessary.  See: Penrice v Williams (1883) 23 ChD 353 at 356-357 per Chitty J; Law Wai Duen v Boldwin Construction Co Ltd (unreported, CACV 1835/2001, 5 December 2001, Rogers VP, Le Pichon JA and Sakhrani J), at paragraph 3. 

11.It is therefore implied in the Order liberty to apply, and I reject Mr Dykes’ submissions that the provision for liberty to apply cannot be implied in the present case as this is an injunction order.

12.The next question is whether the present amendment comes within the scope of liberty to apply.

13.In my view, it does.  It is to work out the terms of the Order for the purpose of enforcement to clarify the exact location of the subject blockages, by removing the ambiguity in paragraph 1(a).  This does not involve the court acting when functus officio.

14.Mr Yin for the 3^rd defendant submits that there cannot be any question of the working out of the terms of the Order, as the court had in hearing the continuation summons in late October already heard arguments on the terms and scope of the injunction order.  The present terms are therefore already the result of scrutiny and debate.  There is thus no room for suggesting that the terms need to be worked out further.

15.With respect, I do not accept the submissions. The previous debates raised in relation to the terms of the injunction were focused on other specific aspects of the injunction.  As a matter of principle and logic, it cannot be right to say that, so long as there have been some arguments raised before in relation to some aspects of the terms of an order, there then cannot be any further questions that could arise in the future in relation to the working out of any aspects of an order, especially an interlocutory one.

16.I would therefore allow the application to amend on this basis.

17.Second and alternatively, it is common ground the court has inherent power to amend or vary a sealed order to reflect the manifest intention it has in making the order, subject to the consideration of whether any prejudice is to be caused to the parties by reason of the amendment.  This also does not involve the court acting when functus officio: Man Ping Nam v Man Fong Hang (No 2) (2007) 10 HKCFAR 140 at paragraphs 10‑11 per Ribeiro PJ; In re Creeney’s Estate [1988] NI 167 at pp 2- 4 of the lexis copy, per Carswell J.

18.Given that the Order is an injunction and interlocutory in nature, and that the court may have to constantly supervise its execution, it must also be this court’s manifest intention in making the order that its terms should be of such precision and accuracy to enable the Order to be practically enforceable and capable to be complied with to prevent the continuation of the subject blockages.

19.In the premises, the present application to delete the words “near to and” from paragraph 1(a) of the Order is to and do clarify the order as to the exact location of the blockages to reflect that intention.  It therefore also falls within the court’s inherent power to so amend. 

20.Mr Dykes appears to submit that there could not still be any manifest intention that would still require clarification under the terms of the Order since the court would have already done so on the previous occasions when it looked at the terms of the injunction: when the court revised the term of the injunction continued on an interim basis on 27 October, and when it included in the Order the enforcement provisions.

21.I am unable to accept this.  When the court revised the terms of the injunction on 27 October and included in the Order the enforcement provisions, those were done specifically in light of and as a consequence of the specific submissions made by the parties at that time.  The court therefore was focused on looking only at those terms and in the context of those specific arguments.

22.Further, both Mr Dykes and Mr Mok have cited many cases on the various situations when and how different courts had exercised or refused to exercise the inherent jurisdiction to amend or vary the specific order concerned. Suffice for me to say that each of these cases is decided on its own individual facts and circumstances.  They show that the court must and can therefore only decide whether to do so based on the individual circumstances of the matter that comes before it.

23.I would therefore also allow the amendment on this ground as well.

D.    CONCLUSION

24.For all the above reasons[2], I would allow the application to amend paragraph 1(a) of the Order.

25.As to costs, I will make an order nisi that costs of the application be to the 2^nd and 3^rd defendants (given that the plaintiffs are seeking an indulgence of the court), save that the costs of this hearing be to the plaintiffs (given that the 2^nd and 3^rd defendants have lost in their opposition to the application) to be taxed if not agreed, with certificate for two counsel.  The 2^nd and 3^rd defendants’ own costs be taxed in accordance with legal aid taxation.  The order nisi shall become absolute 14 days from today unless any of the parties applies to vary it.

E.    LEAVE TO APPEAL

26.Mr Dykes and Mr Yin have (in a pre-emptive manner) asked the court to grant them leave to appeal from this decision if I am to rule against them, and to grant a stay of execution of my order under the decision.  They have indicated that they would be running the same arguments as run before me for the purpose of the intended appeal.

27.For the same reasons I have set out above, I do not think the intended appeal has a reasonable prospect of success.  I would therefore refuse leave to appeal.  I would similarly refuse to grant any stay of execution of my order to allow the amendment.

Mr Johnny Mok SC, Mr Jose-Antonio Maurellet and Mr Kerby Lau, instructed by Phyllis K Y Kwong & Associates, for the 1^st and 2^nd plaintiffs

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

Mr Michael Yin, assigned by the Director of Legal Aid, instructed by Daly & Associates, for the 3^rd defendant