MTR CORPORATION LTD v. PERSONS UNLAWFULLY AND WILFULLY OBSTRUCTING OR INTERFERING WITH THE PROPER USE AND OPERATION OF THE RAILWAY AS DEFINED IN THE MASS TRANSIT RAILWAY ORDINANCE (CAP 556) AND OTHERS

HCA 1551/2019

[2019] HKCFI 2160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1551 OF 2019

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D E C I S I O N

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Background

1.  In the evening of 23 August 2019, on the urgent ex parte application of MTR Corporation Ltd (“MTRCL”), the plaintiff herein, Chow J granted an injunction to prevent unknown persons from committing certain specified acts which may broadly be described as: (i) unlawfully and wilfully obstructing or interfering with the proper use and operation of the plaintiff’s railway system, (ii) damaging any property at any MTR station, and (iii) causing disturbances at any MTR station.

2.  Pursuant to the directions given for service, the injunction order has been displayed at conspicuous places in all MTR stations, posted on MTRCL’s website, and published in one Chinese newspaper and one English newspaper in Hong Kong for 3 consecutive days (27‑29 August).

3.  As is usual practice, the ex parte injunction was granted up to a return date, which falls on today.  By summons issued on 26 August 2019, MTRCL seeks an order continuing the injunction until trial or further order.

4.  MTRCL is a company incorporated under the previous Companies Ordinance (Cap 32) which has been granted the franchise under the Mass Transit Railway Ordinance (Cap 556) (“Ordinance”) to operate the Mass Transit Railway (“MTR”) including any extension thereto and the KCRC Railways.

5.  The defendants are in this case identified by description and not by name, as is permissible in appropriate circumstances provided that the description is sufficiently certain so as to identify those who are included and those who are not: Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714 at §§73‑74.  No person, so far, has come forward identifying himself or herself as a defendant and sought to appear at this hearing as such. 

6.  On 28 August, a memorandum of notification of an application for legal aid by an individual was filed in this action.  It is not known whether that person claims to fall within the description of one of the defendants or seeks to take part in some other capacity and what stance he takes.  The filing of the memorandum, however, as expressly provided in s 15(5)(a) of the Legal Aid Ordinance (Cap 91), does not operate to prevent the making of an interlocutory order for an injunction.

7.  On 29 August, Mr Simon Durrant filed a summons seeking an order that he be added as an interested party and that the injunction, if not stayed, be varied to include certain orders, inter alia, to prevent the police from taking certain steps in MTR stations.  From his affirmation it appears that one of his main concerns was the use of tear gas by the police within MTR stations.  I am unable to accede to his application for joinder, for simply as a passenger of the MTR he has no locus to be joined in these proceedings based on established principles under RHC Order 15 r 6; see University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd & Another [2015] 6 HKC 677, §§22‑32.  Nor can the injunction he seeks be dealt with herein given that this is MTRCL’s rather than Mr Durrant’s action and the police are not a party.  Mr Durrant also stated that there was violence at Yuen Long station on 21 July committed by some white‑shirted men who injured many passengers.  As to this, it should be noted that the injunction sought by MTRCL applies to anyone irrespective of the colour of his shirt.  It is, as Mr Yu observed on behalf of MTRCL, colour‑blind.

The evidence

8.  According to the affirmation evidence placed before the court for the ex parte application and subsequently filed by MTRCL, since 13 June 2019, there have been ongoing protests and repeated incidents of damage to property within “railway premises”,[1] obstruction to railway services and harassment of MTRCL staff.  MTRCL states that it had taken a very tolerant approach but, over time, there have been more frequent and serious incidents, many of which were targeted directly at MTRCL and its staff, with no sign of the trend subsiding.  The safety of both passengers and MTRCL staff has been increasingly threatened.  Reference has in particular been made in the evidence, non‑exhaustively, to the following incidents:

(1)  On 21 July, there was an outbreak of violence at Yuen Long station.  Train doors to the Tuen Mun‑bound train were obstructed.  Physical fights and disputes took place on the concourse and the platform, leading to damage to break‑glass units, ticket gates and roller shutters and the spread of fire retardant chemicals and water in the station.

(2)  On 27 July, protesters made use of fire extinguishers and fire hoses inside the station, causing serious damage, and disabled at least one ticket gate in order to give free rides.

(3)  On 5 August, incidents of obstruction of train doors took place at numerous stations (such incidents having taken place from time to time since June 2019).  In addition, passenger alert devices and emergency plungers, designed for the purpose of enabling passengers to inform MTRCL staff and to stop moving trains in cases of emergency, were improperly activated at many stations.  Objects such as pieces of wood, barriers, water bottles, iron rods and a bicycle were found on train tracks.  These obstructions and interference eventually led to the suspension of trains on the Airport Express Line, Tung Chung Line, East Rail Line, West Rail Line, Tsuen Wan Line, Kwun Tong Line, Island Line and Tseung Kwan O Line.

(4)  In the evening of 11 August, there were confrontations between protesters and the police in Kwai Fong station and Tai Koo station, which resulted in the police entering the stations and firing teargas inside the station (in Kwai Fong) and outside a station exit (in Tai Koo).  On the next day, 12 August, at around 9:30 pm, about 100 people gathered outside the Station Control Room of Tai Koo station, and questioned the Corporations Affairs team staff and station staff about MTRCL’s handling of the protests the previous evening.  Some of the people became extremely hostile and shouted abusive language at the staff.  This incident lasted until about 5 am the next morning.

(5)  On 13 August, a crowd of about 100 people surrounded the Station Control Room of Kwai Fong station and questioned MTRCL’s staff about the handling of the protests at Kwai Fong station on 11 August. Again, various members of the crowd became very hostile and shouted abusive words at the staff.  There was also body contact as members of the crowd tried to stop the staff from leaving.  The crowd refused to leave until the staff agreed to provide a response to their concerns within 6 working days as well as the name and contact number of the two staff members who were speaking to them.

(6)  On 20 August, at around 10 pm, having read the written response issued by MTRCL, a crowd gathered at the Station Control Room of Tai Koo station, being dissatisfied that MTRCL did not condemn the police’s enforcement actions during the Tai Koo station protest.  Again, abusive language was used at the station staff, and the crowd refused to leave until 4:52 am the next morning.  The crowd threatened they would return and gather at Tai Koo station if MTRCL did not provide a response to the further questions they raised.

(7)  On 21 August, at around 10 pm, when the police began to take action to disperse the protesters in the areas around Yuen Long, those who were staging a protest within Yuen Long station dismantled station facilities such as newspaper racks and recycling bins to prevent the police from entering the station.  They also activated fire extinguishers and fire hoses, spraying fire retardant chemicals and water onto the floor, and defaced many walls inside the station and damaged facilities.  They also disabled certain ticket gates in order to give free rides.  At around 10:13 pm, the protesters started obstructing train doors from closing. They eventually left at around 11:30 pm.

(8)  Also on 21 August, at about 10 pm, a crowd of about 30 people gathered outside the Station Control Room of Kwai Fong station asking to meet the station staff to discuss the response issued by MTRCL on 20 August.  In view of the previous experience, MTRCL’s senior management decided that station staff was to avoid confronting the crowd, and so members of the Operating team and Corporations Affairs team stayed inside the Station Control Room to monitor the situation.  The crowd repeatedly knocked on the windows, demanded that the staff speak with them, prevented the staff from moving to other areas of the station including the washroom, and aimed laser pointers at the staff members inside the room.  This continued until the crowd dispersed at around 4:20 am the next morning.

(9)  On 22 August 2019, at about 10 pm, a crowd of around 100 people gathered outside the Station Control Room of Kwai Fong station.  They also obstructed the use of ticket gates by preventing passengers from using the functioning gates and instructing them to use the gates which had been disabled from charging train fares.  Members of the crowd also used cardboards to cover the window of the Station Control Room.  The station staff was yelled at and threatened in a hostile manner.  Facilities in the station were defaced with abusive words.

9.  According to the evidence filed, apart from instances of graffiti, the crowds caused damage to many facilities and much equipment within various stations, including, for example within Yuen Long station alone, ticket gates, fire services glass, security cameras, a ticket machine, access card readers, fire extinguishers, a fire shutter, fire hose wheels, escalators, manual service gates and roller shutters.

10.  The acts in question have also caused disruption of railway services.  For example, when train doors were obstructed as part of the so‑called “uncooperative movement”, the train in the platform would not be able to depart from the station, blocking subsequent trains and potentially paralysing a train line in whole or in part.  MTRCL has increased manpower and security to try to maintain train services where possible but even so, according to MTRCL’s evidence, there has been serious adverse impact on the use of the railway.

11.  A further affirmation filed by MTRCL on 28 August states that:

(1)  MTRCL issued a press release on 23 August to condemn the vandalism of the MTR stations and to clarify that MTRCL had taken actions to address the concerns following the Kwai Fong station incident referred to above.  The press release also stated: “If fights, vandalism or other acts of violence occur, and under high risks or emergency situations, train service to and from the concerned stations may be stopped immediately, and/or the station may be closed, with little or no prior notice”.

(2)  On 23 August, having assessed the risks, the senior management of MTRCL decided that Kwai Fong station would be closed at 9 pm that evening.  Despite an announcement to that effect at 7 pm, a crowd of approximately 300 people gathered outside the Station Control Room of Kwai Fong station at around 9 pm, and obstructed the closure of the station by, for example, sitting directly below the roller shutters and refusing to leave the concourse.  Some shouted abusive and offensive words at the station staff and defaced the facilities of the station with abusive graffiti.  When station staff and firemen (who had arrived in response to a false alarm set off by the vandalism), some people from the crowd blocked the door of the Station Control Room.  A man from the crowd urinated at the door.  The crowd did not leave until 10:39 pm.

(3)  On 24 August, based on its risks assessment in view of the procession that had been organised to take place in the Kwun Tong and Kowloon Bay areas, MTRCL decided to suspend train services on the Kwun Tong Line between Kowloon Bay station and Tiu Keng Leng station and a number of stations there would be closed from noon.  However, station staff closing the various stations met with vigorous resistance from crowds gathering there. Facilities were severely defaced and damaged, and station staff was verbally harassed with abusive language and pointed at with laser pointers.  Even at Choi Hung station, which remained open, the protesters attempted to force their way into the Station Control Room and only stopped when they were warned and expelled by the police.

(4)  On 25 August, in view of the procession from Kwai Fong to Tsuen Wan due to take place at 2:30 pm, MTRCL decided to close Kwai Fong station, Tsuen Wan station and Tsuen Wan West station. However, protesters obstructed the closure of Kwai Fong station, defaced station facilities with obscene graphics and abusive words and damaged property. In Tsuen Wan West station, there was property damage, and protesters used a fire hose to pump water into the station.  There were various acts of vandalism such as damage to ticket gates, defacing of walls and windows with abusive words, and damage to CCTV cameras at numerous stations including Kwai Hing, Tai Wo Hau, Shek Kip Mei, Lai King, Mei Foo, Sham Shui Po, Prince Edward, Mongkok, Jordan, Tsim Sha Tsui, Hung Hom and Sha Tin stations.

12.  MTRCL submits that there is a continuing need for the injunction.  According to the evidence filed, there is being promoted in social media a campaign on 1 September with the apparent intention of paralysing the Airport, generating a fear on the part of MTRCL that its Airport Express Line services may be disrupted.  It also appears that processions are planned in different districts in the territory.  A third affirmation from MTRCL dated 29 August states that there is a campaign for next week being rallied online, targeting North Point, Lai King and Kowloon Tong stations, all interchange stations for different train lines, which is believed to be likely to cause obstruction to services on the 6 train lines.

The issues at the interlocutory stage

13.  The proper approach to the grant of an interlocutory injunction is not in doubt.  For example, it has been stated in Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 at §14:

“ 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.”

The legal bases for injunction

14.  On behalf of MTRCL, counsel put forward 3 separate legal bases for the injunction sought.  First, it is said that MTRCL is entitled to invoke the civil law to apply for an injunction to enforce or in aid of the enforcement of the Mass Transit Railway By‑laws (Cap 556B). 

15.  Section 21(1) of the By‑laws provides that every person while on the railway premises shall comply with the By‑laws and all reasonable directions and requests of any official (defined to mean any person duly authorised to act on behalf of MTRCL). 

16.  Relevantly, in relation to the first category of defendants, the By‑laws prohibit the following acts: interfering with any doors or gates at the station including train doors, platform screen doors and automatic platform gates (s 9(2)); activating any emergency or safety device on the train or in the station for improper purpose (s 8); interfering with any train (s 5(b)); interfering with the proper use of any automatic gate or electronic, telecommunications or other appliance controlled by MTRCL (s 28A(1)(a)); and conducting oneself on any train or in the railway premises so as to cause a nuisance or annoyance to other passengers (s 25).

17.  Analogous provisions are relied upon in the Mass Transit (North‑West Railway) Bylaw (Cap 556H) which separately governs the Light Rail (being part of the “railway” as defined in the Ordinance).

18.  Section 56 of the Ordinance provides that prosecutions for an offence under the Ordinance may be brought in the name of MTRCL.  It seems to me arguable that, coupled with MTRCL’s undoubted power as a company to bring civil proceedings, the By‑laws provide a basis for seeking an injunction in civil law, for there is evidence that the By‑laws are being deliberately and flagrantly flouted and that the penalties provided in the By‑laws, the majority being an insubstantial fine (see s 43 of and Schedule 2 to the By‑laws), provide no deterrence in the circumstances of the present case: see Mayor of London (on behalf of the Greater London Authority) v Hall and others [2011] 1 WLR 504, §56; Stoke‑on‑Trent City Council v B & Q (Retail) Ltd [1984] 1 AC 754.  Although a few offences are punishable by up to 6 months’ imprisonment, there is an arguable basis for MTRCL to say that in the special circumstances that exist, a court order should be granted in aid of the enforcement of the By‑laws.  It should be added, however, that the invocation of the civil law, and in particular the power to grant an injunction, in aid of the criminal law, is an exceptional course not lightly acceded to by the court, because it may result in far more onerous sanctions than the penalty imposed for the offence.  It is also for this reason that I consider the injunction should be limited in terms to those that are really necessary and address serious concerns.

19.  Secondly, as counsel submit, the obstruction of the use and operation of the MTR may also constitute public nuisance, which arises where a person does an act not warranted by law, the effect of which is to endanger the life, safety, health, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone: Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR 480, §14; Clerk & Lindsell on Torts (22^nd ed) §20‑03. Arguably, MTRCL, the plaintiff herein, has sustained or will sustain particular damage beyond the general inconvenience and injury suffered by the public, giving it locus to pursue a claim for public nuisance.

20.  Thirdly, MTRCL, as occupier of the railway premises in question, also relies on private nuisance.

21.  In respect of the second category of defendants, the By‑laws prohibit the following acts: damaging any property upon the railway premises (s 28H(1)(c)); painting, writing, drawing on or defacing any part of the railway premises (s 28H(1)(b)); damaging any building and structure on any part of the railway premises (s 5(bc)); improperly meddling, damaging or otherwise interfering with any machine or equipment used or employed in any part of the railway premises (s 5(a)).

22.  Apart from nuisance, damage to personal property is also at least arguably a legal basis, being a tort against property owned by or in the immediate possession of MTRCL.

23.  In respect of the third category of defendants, the By‑laws, which provide the principal basis for this part of the injunction order, prohibit the following acts upon the railway premises: using any threatening, abusive, obscene or offensive language, behaving in a riotous, disorderly, indecent or offensive manner (s 28H(1)(a)); molesting any person or wilfully interfering with the comfort or convenience of any such person (s 28H(1)(d)); and loitering in or about any part of the railway premises (s 31).

24.  The evidence demonstrates that prima facie (to say the least) there have been repeated instances of damage to property, defacing of property, obstruction to and interference with the operation of the train services, harassment and even detention of station staff.  There are plainly serious issues to be tried.

25.  The damage caused to the proper use of the railway service is unquantifiable.  MTRCL’s staff also needs to be protected from harm and intimidation.  It is quite clear that damages is not an adequate remedy. 

26.  As to the potential prejudice to the defendants resulting from their being restrained from carrying out the acts in question, it should be noted that those acts are for the most part breaches of the By‑laws in the first place and therefore offences prohibited by law even without any injunction.

27.  Many of the incidents have resulted in serious disruption of the train services — a substantial social detriment given the arterial role played the railway system in passenger transportation in Hong Kong.  On the evidence, the risk of such disruption continues and would be exacerbated in the absence of the injunction order.

28.  I have also taken into account the potential impact on freedom of expression and freedom of assembly.  The question of proportionality has to be assessed having regard to the nature and form of exercise of such rights, in particular where any demonstration is being “conducted in a manner or taking the form which is much more intrusive, affecting the rights of others or posing risks to public order, ordre public, or public health and morals”: HKSAR v Fong Kwok‑shan Christine (2017) 20 HKCFAR 425, §46.  A restriction to prevent the kind of confrontations and defacing of property within the precincts of the railway stations is in my view likely to be proportionate.

29.  In all the circumstances, it seems to me that the balance of convenience lies in favour of continuing the injunction, subject to certain modifications I discussed with counsel at the hearing this morning.  After some tweaking, the injunction order is continued until trial or further order in the following terms:

“ 1. The 1^st Defendants and each of them whether acting on his/her own or together with other person(s) be restrained from doing any of the following acts:-

(a) unlawfully and wilfully obstructing or interfering with the proper use and operation of the railway as defined in the Mass Transit Railway Ordinance (Cap 556) (“MTR”) which, for the avoidance of doubt, includes the Airport Express;

(b) unlawfully and wilfully interfering with any doors or gates including any train doors, platform screen doors and automatic platform gates at any MTR station;

(c) improperly activating any emergency or safety device on any train or at any MTR station without authorization by the Plaintiff;

(d) improperly interfering with the passage of any train at any MTR station;

(e) conducting himself on any train or in any part of any MTR station so as to cause a nuisance to other passengers;

(f) deliberately failing or refusing to comply with reasonable directions and requests of any official of the Plaintiff, given or made for the purposes of preventing or restraining (a), (b), (c), (d), (e), (g) and/or (h) hereof, to vacate a train or an MTR station;

(g) interfering with the proper use of any automatic gate and/or any mechanical, electrical, electronic, telecommunications and/or other appliance owned by or under the control of the Plaintiff at any MTR station without the Plaintiff’s authorization;

(h) obstructing or interfering with any staff of the Plaintiff in preventing or restraining or attempting to prevent or restrain (a), (b), (c), (d), (e), (f), and/or (g) above;

(i) inciting and/or aiding and/or abetting any person to do any of the acts identified in (a), (b), (c), (d), (e), (f), (g), and/or (h) above.

2. The 2^nd Defendants and each of them whether acting on his/her own or together with other person(s) be restrained from doing any of the following acts:-

(a) damaging any property at any MTR station;

(b) painting, writing, drawing or affixing any word, representation or character upon any part of any MTR station;

(c) damaging any train (including any part thereof) at any MTR station;

(d) improperly use, meddle or damage any machine or equipment at any MTR station, including but not limited to fire hose, fire extinguishers, newspapers dispensers, recycling bins and/or litter bins;

(e) obstructing or interfering with any staff of the Plaintiff in preventing or restraining or attempting to prevent or restrain (a), (b), (c) and/or (d) above;

(f) inciting and/or aiding and/or abetting any person to do any of the acts identified in (a), (b), (c), (d) and/or (e) above.

3. The 3^rd Defendants and each of them whether acting on his/her own or together with other person(s) be restrained from doing any of the following acts:-

(a) using any threatening language, or behaving in a riotous or disorderly manner at any MTR station;

(b) loitering in any part of any MTR station;

(c) obstructing or interfering with any staff of the Plaintiff in preventing or restraining or attempting to prevent or restrain (a) and/or (b) above;

(d) inciting and/or aiding and/or abetting any person to do any of the acts identified in (a), (b) and/or (c) above.”

30.  Paragraphs 4 to 8 of the ex parte order are also continued.

31.  MTRCL may effect substituted service of the order in the manner proposed, namely, by affixing it in conspicuous places at all MTR stations, posting it on its website and publishing it in one English newspaper and one Chinese newspaper in Hong Kong for 1 day.

32.  I also grant leave as sought for MTRCL to amend the writ of summons including the description of the 3^rd defendants therein to persons conducting themselves in any of the acts prohibited by paragraph 3 of the order made herein.

33.  The costs of the application are reserved.