All China Express Ltd v. Kwok Cheuk Kin and Others

HCA 2223 of 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2223 OF 2014

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D E C I S I O N

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1.On 1 December 2014, I handed down judgment (“the Judgment”) granting the interlocutory injunction sought by the plaintiff.

2.This is the 2^nd defendant’s application for leave to appeal the order under the Judgment to the Court of Appeal and for a stay of execution pending appeal.  This decision should be read together with the Judgment.  I would also adopt the abbreviations used in the Judgment.

3.As a start, it must be noted that the 2^nd defendant has not even formulated his intended grounds of appeal in his summons.

4.Mr Pun (together with Mr Newman Lam) for the 2^nd defendant in his skeleton says that the 2^nd defendant would seek to repeat in the intended appeal all the arguments previously raised before me in opposition to the grant of the injunction.  These arguments have been rejected by this court for the reasons set out in the Judgment.

5.Mr Pun submits that the 2^nd defendant has a reasonable prospect of success in the intended appeal and/or it would be in the interest of justice for the intended appeal to be heard by the Court of Appeal.  In support of this position, Mr Pun emphasises the following points in particular.  I would deal with them in turn.

6.First, Mr Pun says he has a reasonable prospect of success in contending that the court should adopt the threshold that ACE needs to show that it is at least very likely to succeed at trial, instead of the triable issues threshold.  Counsel relies on the same contentions he had made before.

7.I have rejected these contentions for the reasons set out at paragraphs 16‑21 of the Judgment.  In particular, as I have said in the Judgment at paragraphs 19-20, the Court of Appeal has already in the Mongkok Injunction Cases held twice that, in similar injunction applications like the present, this court is correct to adopt the triable issues threshold.  See: HCMP 2975/2014 at paragraphs 7 to 19 per Cheung CJHC, and HCMP 3028/2014 at paragraphs 7-9 per Lam VP.

8.None of the contentions raised by Mr Pun would in my view affect the Court of Appeal’s said conclusion.  I therefore see no reasonable prospect of success under this proposed ground of appeal.

9.Second, Mr Pun repeats his contentions that ACE cannot show a particular, substantial and direct loss when the rationale underlying this requirement (ie, the rationale to avoid multiplicity of suits and to avoid usurping the discretion of the SJ) is taken into account.  He also says ACE suffers no such loss with regard to the class of the public to which ACE belongs with reference to the effect of the obstruction.

10.I have rejected these arguments at paragraphs 38-44 (together with paragraphs 60-61) of the Judgment.

11.I similarly see no reasonable prospect of success in this intended ground of appeal.  As I have said in the Judgment:

(1) The Court of Appeal has in the Mongkok Injunction Cases held that the question of law and fact of what amounts to a particular, substantial and direct loss in the circumstances as the present one is one that should only be determined at trial after mature arguments.  See: HCMP 2975/2014, at paragraphs 17-20 per Cheung CJHC.  I cannot see how the rationale arguments could affect the Court of Appeal’s above view and could determinatively show that this question is not triable at all.  As I have also said in the Judgment, these arguments at the highest only add further facets to the triable contentions on law and fact.

(2) The Court of Appeal has also observed that, in the context of seeing whether there is a triable issue on the question of “particular, substantial and direct” loss in the law of public nuisance, it is a matter of common sense that those who earn a living or derive an income from the provision of public transport services in Hong Kong would suffer a loss in their earnings or income by reason of the road blockages.  See: HCMP 2975/2014 at paragraph 20 per Cheung CJHC.  Given this observation and ACE’s unchallenged evidence on the loss of income in operating the Wan Chai Route, I do not think the 2^nd defendant could reasonably argue in the intended appeal that there could be no triable issue on ACE’s loss amounting to particular, substantial and direct loss.

12.Third, Mr Pun argues that, even taking ACE’s case to the highest, whether ACE has shown a particular, substantial and direct damage is “essentially a question of law”.  As such, the court is wrong not to determine this question of law forthwith when there would not be a trial if ACE had achieved its objective by obtaining the interlocutory injunction.

13.In substance, this is the flip side of Mr Pun’s above arguments that the court has wrongly adopted the triable issues threshold. For the same reasons I have said at paragraphs 6 to 8 above, in particular the references to the Court of Appeal’s judgments, I do not think this intended ground of appeal has a reasonable prospect of success.  The lack of merits in this intended ground is further underlined by the following:

(1) The Court of Appeal has already previously held that there is a triable issue on the contested propositions under this question of law, and the question should only be determined with mature arguments at trial.  See: HCMP 2975/2014 at paragraph 19 per Cheung CJHC.

(2) The Court of Appeal has also distinguished Bradford Metropolitan Council v Brown (1986) 19 HLR 16 (an authority relied on by Mr Pun) and held that this should not be taken to support the proposition that the court in the circumstances as the present case should form a provisional view on the question of loss[1].  See: HCMP 3028/2014 at paragraphs 8-9 per Lam VP.

(3) There is simply no basis whatsoever for Mr Pun to assert that the matter would not proceed to trial.

14.Finally, Mr Pun says in any event, in the interest of justice, leave should be given so that the Court of Appeal can hear the matter.  This is so because, submitted Mr Pun, (a) this matter involves and affects many people at large, and (b) the SJ has not intervened notwithstanding that public interest is involved.

15.I am not convinced by these submissions:

(1) The Court of Appeal in the three applications for leave to appeal in the Mongkok Injunction Cases has already heard and dealt with arguments similar to those intended to be raised in the present intended appeal, including the one that the court should not grant an interlocutory injunction when the SJ has not intervened.  The Court of Appeal has consistently rejected all these arguments as having no reasonable prospect of success[2].

(2) As the learned Chief Judge has said, the conduct of the deliberation obstruction of the roads without authority is criminal in nature and that the protestors (including the 2^nd defendant) “simply [have] no right whatsoever to occupy and block in the way the protestors do the public roads in question”.  See: HCMP 2975/2014 at paragraph 12.

(3) In these circumstances, I cannot see why it would be in the interest of justice to ask the Court of Appeal to hear these arguments all over again.

16.For all the above reasons, I refuse to grant leave to appeal.  It follows that I would also refuse the application for a stay of execution pending appeal.

17.I further order that costs of this application be to ACE to be taxed if not agreed, with certificate for two counsel.  The 2^nd defendant’s own costs be taxed in accordance with legal aid taxation.

Mr Warren Chan SC and Ms Patricia Lam, instructed by Paul W Tse, for the plaintiff

Mr Hectar Pun and Mr Newman Lam, instructed by Ho Tse Wai, Philip Li & Partners, assigned by the Director of Legal Aid, for the 2^nd defendant

The 3^rd defendant appeared in person

[1] See the Judgment at paragraph 20, where this court refers to the Court of Appeal’s judgment.

[2] In addition to HCMP 2975/2014 and HCMP 3028/2014, see also HCMP 3090/2014 at paragraph 5 per Lam VP.

Please refer to HCMP3292/2014 for the relevant appeal(s) to the Court of Appeal.