TIME SQUARE LTD v. LEE KWUN KIT t/a JL Music AND ANOTHER

HCA 2244/2018

[2018] HKCFI 2389

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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1.  This is an application for an interim injunction against busking activities and street performances on the open piazza in Times Square, Causeway Bay, taken out by the plaintiff by summons dated 24 September 2018.

2.  The application first came before DHCJ Keith Yeung, SC as against the 1^st defendant on 28 September.  At that hearing the 1^st defendant gave an undertaking to the court pending the determination of the summons in terms substantially similar to the injunctions sought by the plaintiff, namely:

“ That he shall not whether acting by himself, his servants or agents or any of them:

(a) occupy or remain at the Open Piazza (as delineated in green in the Ground Floor Plan in the third schedule to the Deed of Dedication dated 30 July 1992 (Memorial No. UB5380714)), by busking or any other form of street performance;

(b) cause, place or leave obstruction(s) at the Open Piazza in connection with the carrying out of busking or any other form of street performance; and

(c) disturb, interrupt or otherwise obstruct any servant, employee or person employed by the Plaintiff in a proper execution of their duties in connection with the undertakings in (a) and (b) above, all until after the substantive hearing of the Summons or further order of the Court.”

3.  On that occasion, the Court also directed that service of the proceedings on the 2^nd defendant be effected by way of substituted service by fixing the writ of summons and the order for substituted service at a conspicuous place at the open piazza, placing an advertisement of a Chinese notice and an English notice of these proceedings once in Sing Tao Daily and once in South China Morning Post, and posting the advertisements on the website of the plaintiff.  Directions were also given for the service of the present summons on the 2^nd defendant by affixing the relevant documents at a conspicuous place at the open piazza.

4.  I am satisfied that these directions for service have been complied with.  Notwithstanding that, no one answering the description of the 2^nd defendant has appeared in court today to respond to the summons. 

5.  The 2^nd defendant is described as follows:

“ Persons unlawfully occupying or remaining at the open piazza of Times Square, 1 Matheson Street, Causeway Bay, by busking or any other form of street performance, or persons who cause, place or leave obstruction(s) at the open piazza in connection with the carrying out of such performances”.

6.  Mr Jin Pao SC, who appears for the plaintiff, has argued that the activities that have been taking place at the piazza and which the plaintiff seeks to enjoin, constitute clear trespass on the plaintiff’s property.

7.  The property is the subject matter of a Deed of Dedication made in 1992 whose terms include the following:

“(1) In consideration of the Benefit and in pursuance of the agreement recited in 3 above, the owner hereby dedicates from the date hereof all that the said dedicated area unto the public for the purposes of pedestrian passage and passive recreation for the period during which the said building shall be situated on the said lots and subject to the terms and conditions herein contained.

(2)(c) The right of passive recreation as aforesaid is a right to use or enjoy the said dedicated area as an open space and passive recreation ground and such right shall be restricted as follows.

(v) No person shall ... place or leave any obstructions or things on the walks or elsewhere within the said dedicated area.

(vii) 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 said dedicated area as open space and passive recreation ground are forbidden.

(xi) No person shall in the said dedicated area wilfully obstruct, disturb, interrupt or annoy any other person in the proper use of the said dedicated area...

(f) The owner shall throughout the period during which the said building shall be situated on the said lots at its own expense and to the satisfaction of the direction keep and maintain the said dedicated area in a clean and tidy condition and free from any obstruction...

(g) For the purposes of effecting sub‑clause (f) and enforcing sub‑clause (c) and (k) hereof, the owner shall respectively employ such cleaners and watchmen as the owner shall consider necessary and shall also (where appropriate) liaise with Royal Hong Kong Police Force in connection with the security of the said dedicated area.

(k) The owner reserves the full right to evict and/or remove any person from the said dedicated area who is found by the owner to be committing any act of nuisance or disorderly conduct on the said dedicated area.

(5) This Deed of Dedication notwithstanding the said dedicated area is and shall remain the property of the owner...”

8.  The evidence shows that on numerous days in August, September and early October 2018, various busking activities took place at the open piazza where the performers came in groups and brought along equipment with them including free‑standing loud speakers, amplifiers, portable electricity supplies, percussion instruments, electronic keyboards and other musical instruments.

9.  The noise level readings during the performances have all been above 70 dBA in the piazza.  The readings at locations about four metres from the performers were near or above 90 dBA.

10.  In these circumstances, Mr Pao argues that there has been a clear breach of the terms of the Deed of Dedication and, therefore, trespass on the plaintiff’s property.  It is not necessary for me in the context of today to say anything more than that there seems to me to be a prima facie valid argument raised by the plaintiff.

11.  I have to take into account various considerations in determining whether and if so what form of interim relief should be granted.  In the meantime, it seems to me that the balance is not just between the plaintiff’s property rights on the one hand and the 2^nd defendant’s interest in continuing their activities there on the other.  One must also take into account the rights of members of the public generally to the proper use of the piazza in accordance with the terms on which it has been dedicated to the public and also the concomitant duty of the plaintiff, as specified in clause 2(f) of the deed which I have read out, to keep and maintain the area “in a clean and tidy condition and free from any obstruction”.

12.  In all the circumstances, it seems to me the appropriate course is to grant the injunction sought in the terms I have just settled with counsel, not up to the trial of this matter, but only up to the determination of the summons as between the plaintiff and the 1^st defendant who has been legally represented, because that would provide a good opportunity for the Court to review also the application for injunction as against the 2^nd defendant in the light of the arguments heard from the 1^st defendant which may well be of relevance to both.

13.  Accordingly, I grant the injunction that:

(1)  the 2^nd defendant be restrained whether acting by themselves, their servants or agents or any of them or otherwise howsoever from occupying or remaining at the open piazza (as delineated in green in the ground floor plan in the third schedule to the Deed of Dedication dated 30 July 1992 (Memorial No UB53807140) and for identification purposes annexed to this order) by busking or any other form of street performance until the determination of the plaintiff’s summons dated 24 September 2018 as against the 1^st defendant or further order of the court;

(2)  the 2^nd defendant be restrained, whether acting by themselves, their servants or agents or any of them or otherwise howsoever from causing, placing or leaving obstructions at the open piazza in connection with the carrying out of busking or any other form of street performance until the determination of the plaintiff’s summons dated 24 September 2018 as against the 1^st defendant or further order of the court; and

(3)  the 2^nd defendant be restrained whether acting by themselves, their servants or agents or any of them or otherwise howsoever from disturbing, interrupting or otherwise obstructing any servant, employee or person employed by the plaintiff in the proper execution of their duties in connection with the injunctions in paragraphs (1) and (2) above until the determination of the plaintiff’s summons dated 24 September 2018 as against the 1^st defendant or further order of the court.