TIMES SQUARE LTD v. LEE KWUN KIT t/a JL MUSIC AND ANOTHER

HCA 2244/2018

[2019] HKCFI 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2244 OF 2018

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D E C I S I O N

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INTROUCTION

1.  Times Square is a well-known building in Causeway Bay. This case concerns the busking activities and street performances on the open piazza at the G/F level of the Times Square (“the Open Piazza”).

2.  The plaintiff is the registered owner of the land (“the Land”) on which Times Squares is located. On 24 September 2018, the plaintiff took out a summons (“the injunction summons”) for an interlocutory injunction against the 1^st defendant (“D1”) and the 2^nd defendant (“D2”) restraining them from doing the following until the trial of this action or a further order made by the court:

(1)  occupying or remaining at the Open Piazza by busking or any other form of street performance;

(2)  causing, placing or leaving obstruction(s) at the Open Piazza in connection with the carrying out of busking or any other form of street performance; and

(3)  disturbing, interrupting or otherwise obstructing any servant, employee or person employed by the plaintiff in the proper execution of their duties.

3.  The injunction summons was first heard by DHCJ Keith Yeung SC on 28 September 2018. In that hearing, D1 was legally represented and indicated that the summons would be contested. For the interim period until the determination of the injunction summons, D1 gave an undertaking to the court that he would refrain from doing the matters set out in [ 3 ] — [ 5 ] of the injunction summons. The court satisfied that D2 was properly and sufficiently described in these proceedings[1] and gave an order for substituted service concerning D2 (“the service order”). The court adjourned the injunction summons as between the plaintiff and D2 to 5 October 2018 before the Summons Judge.

4.  On 5 October 2018, the injunction summons as between the plaintiff and D2 was heard by G Lam J. After considering the evidence and the submissions, the court made an interim injunction against D2. The life of the interim injunction is up to the determination of the injunction summons as against D1 or a further order made by the court. The court indicated that the substantive hearing of the injunction summons would provide a good opportunity for the court to review the application for an injunction as against D2 as well[2].

5.  This is the substantive hearing of the injunction summons. Prior to this hearing, on 23 May 2019, the plaintiff and D1 signed a consent summons, in which D1 has consented to the injunction order sought by the plaintiff and sought leave that his attendance at this substantive hearing be excused. On 29 May 2019, upon the undertaking as to damages offered by the plaintiff, I made an order in terms of the consent summons.

6.  The plaintiff now pursues its application for an interlocutory injunction against D2. Having read the evidence adduced by the plaintiff, I am satisfied that the documents in these proceedings have been duly served on D2 pursuant to the service order made by the court.

THE PLAINTIFF’S CASE

7.  The plaintiff has filed evidence in support of the injunction application. Neither D1 nor D2 has filed any evidence in opposition to the application. For the purpose of this hearing, the plaintiff’s evidence is unchallenged by D1 and D2. The essential facts concerning the injunction application as shown in the plaintiff’s evidence are set out below.

8.  On 30 July 1992, as the owner of the Land, the plaintiff executed a deed of dedication (“the Deed of Dedication”) to dedicate the Open Piazza to the public for the purposes of “pedestrian passage and passive recreational use”[3].

9.  Under the Deed of Dedication, even the permitted uses are subject to, inter alia, the following restrictions:

(1)  “No person shall climb, damage, pull down or destroy any of the trees, shrubs or plants or pluck the flowers in the [ Open Piazza ] or wilfully cut up or injure the surface of the gravel walks or lawns or trample on or injure the beds or place or leave any obstructions or things on the walks or elsewhere within the [ Open Piazza ]”[4];

(2)  “Noisy and disorderly conduct and every other practice in the opinion of the Owner likely to cause annoyance or nuisance or to interfere with the use and enjoyment of the [ Open Piazza ] as open space and passive recreation ground are forbidden”[5];

(3)  “No person shall in the [ Open Piazza ] wilfully obstruct, disturb, interrupt or annoy any other person in the proper use of the [ Open Piazza ], or wilfully obstruct, disturb or interrupt any servant, employee or person employed by the Owner in the proper execution of his duty or of any work in connection with the laying out maintenance landscaping or upkeep of the [ Open Piazza ]”[6]; and

(4)  “No person shall affix any bill, placard, or notice to or upon any wall or fence in or inclosing the [ Open Piazza ] or to or upon any tree or plant or to or upon any part of any building, barrier or railing, or of any seat, or of any other erection or ornament in the [ Open Piazza ]”[7].

10.  Under Clause 2(j) of the Deed of Dedication, the plaintiff shall have the exclusive right to place or to permit the placing of temporary structures on the Open Piazza for temporary exhibitions and displays subject to the prior written approval of the then Director of Buildings and Lands (now the Director of Buildings). However, these temporary structures cannot impede pedestrian passage or passive recreational uses in the Open Piazza.

11.  The Open Piazza is a popular open space and recreational area in the heart of a busy shopping district in Causeway Bay, serving Times Square and countless members of the public on a daily basis.

12.  On six successive Fridays (17, 24, 31 August and 7, 14, 21 September 2018), D1 had organized busking activities at the Open Piazza for various individual or groups of performers through his platform “City Echo”. The performers normally came in a group and brought along equipment with them, including free-standing loudspeakers, amplifiers, portable electricity supplies, percussion instruments, electronic keyboards and other musical instruments. The busking activities mostly took place at the covered part of the Open Piazza, and attracted crowds of audience members who observed the performances. This caused obstruction to the public who used the Open Piazza as a means of public passage. Apart from the equipment, the performers would usually place the placards with the logo of “City Echo” in the Open Piazza.

13.  These were not one-off performances. The busking activities organized by D1 had taken place at the Open Piazza on each of the 6 Fridays immediately preceding the 28 September 2018 hearing. The duration of the performances was not short, normally from between 6-7 pm until 11 pm. The noise level readings at the performances were all above 70 dBA.

14.  “City Echo” has a publicly accessible Facebook page which, prior to the court orders of 28 September 2018 and 5 October 2018, had advertised future busking events at the Open Piazza, and published calendars which showed the stage names of the musical acts to be performed. The musical acts which took place at the Open Piazza were the ones promoted by the “City Echo” calendar.

15.  The plaintiff’s staff served multiple warning letters on the various performers and personally requested them to cease their activities, but these warnings were ignored, and D1 and D2 simply continued their busking performances.

16.  After the hearing on 28 September 2018, all the relevant court documents including the order made in that hearing were served on D2 by placing the same at a conspicuous place at the Open Piazza. Despite such clear display and the publication of the relevant documents on the plaintiff’s website, members of D2 continued to perform at the Open Piazza — some of them right next to the table displaying the court documents — on 29, 30 September 2018 and 1 October 2018.

17.  The interim injunction granted on 5 October 2018 has been effective in stopping busking activities and other street performances at the Open Piazza for the past few months. The plaintiff submits that there is a real risk that D2’s infringing acts would resume if the interlocutory injunction sought in the injunction summons is not granted.

THE PRINCIPLES

18.  Mr Jin Pao SC, leading Ms Sheena Wong, has helpfully referred me to a succinct summary by G Lam J in Turbo Top Ltd. v Lee Cheuk Yan, in which the principles concerning interlocutory injunctions have been set out[8]:

“This is not the occasion for the Court to adjudicate finally on the rights and obligations of the parties. The principles applicable in relation to interlocutory injunctions are not in dispute. The Court has to see whether there are serious issues to be tried, whether damages would be an adequate remedy for either side, and if damages would not be adequate, 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, I must take into account the interests of the general public as well even though they are not represented before me.”

19.  While an interlocutory injunction is sought by a landowner to enjoin trespass to his land, the injunction would almost as a matter of course be granted, even if the trespass causes no harm to the landowner, unless the defendant shows an arguable case that he has a right to do what is alleged to be a trespass. Only in the latter situation should the court consider the balance of convenience. These principles have been set out by DHCJ Poon (as he then was) in The Church of Jesus Christ of Latter-Day Saints Hong Kong Limited v Stewart J C Park[9]:

“A landowner whose title was not disputed is prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate. On an interlocutory application, such an injunction should, in the absence of exceptional circumstances, be granted unless the defendant satisfies that court that there was an arguable case that she has a right to do which the plaintiff alleged to constitute a trespass. Only if such a defendant could show such an arguable case should the court go on to consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy: Patel v W H Smith ( Eziot ) Limited & Anor [ 1987 ], WLR 853, English Court of Appeal, followed in Lea Tai Property Development Limited v Incorporated Owners of Leapoint Industrial Building [ 1995 ] HKCA 499; [ 1996 ] 1 HKC 193, CA.”

20.  Trespass to land consists of any unjustifiable intrusion by one person on the land possessed by another[10].

ANALYSIS

21.  It is indisputable that the plaintiff is the owner of the Land, including the Open Piazza. Under Clause 1 of the Deed of Dedication, the public has the right to use the Open Piazza for the purposes of “pedestrian passage and passive recreation”, and not for any other purpose. In my view, the activities which D2 have undertaken and promoted in the Open Piazza can hardly be said as within the scope of the prescribed purposes.

22.  Clearly, D2 are not using the Open Piazza for “pedestrian passage”. Further, I agree with the plaintiff’s submission that the plain and natural meaning of “passive recreation” refers to leisurely recreational activities such as strolling, walking or taking a rest, which require minimal facilities or infrastructure, and involve minimal or limited levels of noise, exertions and impact on their surroundings. D2’s busking activities at the Open Piazza go beyond “passive recreation”, particularly in light of (a) the huge amount of noise generated (which have been the subject of complaints by the tenants and neighbours of Times Square), (b) the impact they have on their surroundings, (c) the obstruction caused by D2’s equipment and the crowds to the pedestrian passage at the Open Piazza, and (d) the highly organised and repetitive nature of the scheduled performances.

23.  Clause 2(j) of the Deed of Dedication makes it clear that the public has no entitlement to erect or place structures for the purposes of temporary displays or exhibitions, for an exclusive right to do so is given to the plaintiff subject to the written approval of the Director of Buildings.

24.  I also agree with the plaintiff that D2 may have also breached Clauses 2 (c)(v), 2 (c)(vii), 2 (c)(xi) and 2 (c)(xii) of the Deed of Dedication.

25.  In my view, D2’s busking activities constitute trespass to the Land owned by the plaintiff. There is no evidence showing that D2 may have the entitlement to conduct such busking activities at the Open Piazza. In the circumstances, in accordance with the principles set out in the Latter-Day Saints case, an injunction should be granted to enjoin D2 from doing so. There is no need to proceed to consider the balance of convenience.

26.  Even if the balance of convenience is relevant, the balance is clearly in favour of granting the injunction.

(1)  The busking activities can be moved to elsewhere where they can be performed lawfully. There is no evidence showing why this cannot be done.

(2)  D2’s acts have constituted noisy conduct and nuisance, and caused obstruction to pedestrian passage in the Open Piazza, which is dedicated for public use by way of pedestrian passage and passive recreation. The entitlement of the public to use the Open Piazza free of obstruction should be considered in the balance of convenience[11].

(3)  Under Clause 2 (f) of the Deed of Dedication, the plaintiff has a duty to maintain the Open Piazza “in a clean and tidy condition and free from any obstruction”. The plaintiff has to discharge this duty.

(4)  Various verbal complaints have been received by the plaintiff from tenants and those neighbouring Times Square. The interests of affected third parties should be considered.

(5)  This is not a case concerning the freedom of assembly or demonstration. No fundamental freedoms are involved.

27.  The plaintiff has offered an undertaking as to damages in support of its application for an injunction against D2.

28.  Taking all the aforesaid into account, I am of the view that the plaintiff is entitled to have the injunction sought.

29.  I order that the injunction order made by G Lam J on 5 October 2018 against D2 be continued until the trial of this action or a further order made by the court. Costs of the injunction summons (including all costs reserved) be the plaintiff’s costs in the cause, with a certificate for 2 counsel.

30.  I thank counsel for the assistance rendered to the court.