CHINA RESOURCES LAND LTD AND ANOTHER v. UNKNOWN PERSONS SITUATED OUTSIDE OF THE SOUTHERN ENTRANCE OF THE CHINA RESOURCES BUILDING ON THE PEDESTRIAN WALKWAY OF THE HARBOUR DRIVE, WANCHAI, HONG KONG, DISPLAYING LARGE POSTERS OF DEFAMATORY NATURE AGAINST THE PLAINTIFFS

HCA 504/2019

[2019] HKCFI 1335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 504 OF 2019

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D E C I S I O N

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1.  Everything considered, I think the court is in a position and should actually dispose of the inter partes application today, and I shall explain why.

2.  Several issues have to be decided for today’s purpose.

3.  First of all, the naming of the defendant.  The defendants in this case are named as the:

“Unknown persons situated outside of the southern entrance of the China Resources Building on the pedestrian walkway of Harbour Drive, Wanchai, Hong Kong, displaying large posters of defamatory nature against the plaintiffs.”

4.  For the naming of the defendants in such manner, the plaintiffs relied on the principles in the case of Billion Star Development Limited v Wong Tak Chuen and Others [2012] 2 HKLRD 85 at §§49-54.   In that case, the nature of the claim was based on trespass and obstruction of a particular area, and therefore the description of the defendant in that case with reference to the locality of the conduct on the part of the defendant.  Now here, although it is not precisely the similar manner of tort being committed by the defendant that the plaintiff is alleging, the conduct in both cases actually shared a similar component being that of the locality of the tort.  Essentially, there is no way that the plaintiff could practically identify the defendants other than by reference to the locality of the tort being complained about, and therefore I accept that by the same rationale as in Billion Star Development Limited, the manner in which the defendants are named in the present case should be accepted as valid.   

5.  The second issue that the court has to consider is the question of service which is not unrelated to the question of how the defendants are named in these proceedings.  The plaintiffs actually raised the issue of the practical difficulty of service on the defendants on the last summons day two weeks ago. The only order made by the court then was to adjourn the matter to today, and for today’s purpose, the plaintiff also made a similar application in respect of service on the defendants.  So I see myself having a free hand in deciding the question of service on this occasion. 

6.  Without prejudice to the decision on the question of service, I directed prior to today’s hearing that notice of today’s hearing should in any event be given to the defendants plus copies of the documents in the manner as proposed by the plaintiff for the purpose of the application in respect of service.  The evidence filed for the purpose of today’s hearing shows that this was done on 24 April.  I can also see the photographic record of such process.

7.  In my view, it is very important to consider the reality of the circumstances in this case and to answer the question of what the plaintiff could practically do to effect service in the circumstances.  The plaintiff has no information about the identities or the exact number of the defendants or their whereabouts save and except as and when they appeared at the location mentioned in this action.  In the circumstances, discretion, in my view, should be exercised to direct and to deem the mode of service proposed by the plaintiff as good service on the defendants.

8.  One of the modes proposed by the plaintiff is precisely to serve on the defendants who happened to be present personally.  In the circumstances, according to the evidence, I am satisfied that the plaintiff has actually done that.  It follows that the previous service was good and my direction to give notice, as previously mentioned, and to effect service in this mode for today’s hearing is equally deemed good service.  That resolves the question of service. 

9.  Next is the substance of today’s application, which is an inter partes application for an interlocutory injunction.  The test is that as laid down in the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396, and that applies to this case but with an additional caution.  The additional caution arises because of the cause of action in this case which is one of defamation.  Special considerations apply as set out and explained in the authorities mentioned in the submissions of the plaintiffs’ counsel[1]. In practice, it will be considered as inappropriate to grant an interlocutory application to restrain the exercise of freedom of speech and expression, if defence recognized by the law is raised to the claim in defamation.

10.  In the present case, considering the submissions on the principles as well as the wordings of the statements being complained about, I find that there must be a serious question to be tried as to whether they are defamatory in terms of meaning.

11.  The key consideration at this stage of the proceedings, as I have mentioned during the exchange with counsel, is that none of the defendants, who, I find, has notice of these proceedings and today’s hearing, has come forward for the purpose of raising any ground of defence recognized in respect of a defamation claim.  Therefore, there is not even basis for considering if it is appropriate or inappropriate to grant an interlocutory injunction in these circumstances. 

12.  As far as balance of convenience is concerned, I have considered the submissions on the impact of the continuation of such tort on the plaintiff without an interlocutory order restraining that.  It is also not right for the defendants to hide behind their conduct and not come forward to contest whilst somehow expecting the court to maintain that the balance of convenience should nevertheless tilt in their favour.  

13.  As far as the evidence of the service on the defendants can show, the defendants seem to be continuing their conduct being complained about on 24 April, even after the commencement of these legal proceedings.  But even assuming that they have somehow stopped what they used to do, I see no reason why the plaintiffs should be left subject to the mercy of the defendants as to whether or not such conduct may resume one day.

14.  All the materials and submissions considered, I find that it is appropriate to grant the interlocutory order.   

15.  Insofar as service is concerned, I make an order that service of the documents in these proceedings in the manner as set out in paragraph 1 (a) and (b) of the summons shall be good and sufficient on the defendants, and all documents previously served in such manner on the defendants be deemed to have been effected.

16.  In respect of the interlocutory injunction, I make an order in terms of paragraph 2 of the summons with effect until the determination of this action or further order of the court.  To be precise, the publication of statement caught by the injunction shall be that as set out in an attached sheet, which shall effectively be Schedule 3 of the draft order (subject to amendment[2]).

(Discussion re terms of the injunction order and costs)

17.  Costs reserved as requested.