INTERNATIONAL SOCIAL SERVICE (HONG KONG BRANCH) v. ISMAIL KAMEL ISMAIL HASSAN ISMAIL AND OTHERS

HCA 271/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 271 OF 2014

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D E C I S I O N

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1.  This is an ex parte application made urgently on notice to the defendant today for an injunction restraining the defendants from entering into or remaining on certain premises. 

2.  The plaintiff is called International Social Services (Hong Kong Branch), which is a body corporate incorporated in Hong Kong under the Companies Ordinance as a company limited by guarantee. Permission has been given to it to dispense with the word “limited” in its name.  It is said to be an international non-governmental organisation without political, racial, religious or nationality bias.

3.  The evidence is that it was established in Hong Kong in the 1950s and admitted in 1972 as a branch by the International Council of ISS.  It has leased three sets of office premises in Hong Kong, being: 1^st Floor Lip Po Chun Health Centre, 22 Arran Street, Mong Kok, Kowloon, Hong Kong; secondly, 11^th Floor Tsuen Wan Hoover Plaza, 118 Chuen Lung Street, Tsuen Wan, New Territories; and thirdly, Office Unit A-E on the 21^st Floor Skyline Tower, No. 18 Tong Mei Road, Kowloon.

4.  The 1^st to 6^th defendants are apparently refugees or persons claiming refugee status in Hong Kong.  The 7^th defendant is the founder and a senior officer of an organisation called Vision First.  The 8^th defendant is described as a group of persons unknown entering or remaining without the consent of the plaintiff at the three sets of premises.

5.  The plaintiff, ISS, had a contract with the Social Welfare Department of the Government of Hong Kong to provide food supplies to the refugees. 

6.  There is a dispute between the refugees and ISS about the quality and quantity of food that is being supplied.  It is alleged by the defendants that ISS is manipulating the food price list and they demand to see a copy of it.  ISS, however, says that it is under a duty of confidence to the Social Welfare Department and is not at liberty to disclose the food price list.  That has led to serious disputes between ISS and the refugees which apparently were also fuelled by the dissatisfaction on the part of the refugees relating to their living condition.

7.  The events that led to the present application began on 11 February 2014 when various persons entered into the premises of ISS and apparently staged protests and demonstrations there and refused to leave.  It is unnecessary to recite the details of what had happened in this decision on an ex parte application; suffice it to say that there were certain confrontations resulting from the ISS staff’s request to the protestors to leave and the protestors’ refusal to leave.  As a result, the police were called, though no one was arrested.

8.  On the days that followed, there were further incidents which, on the evidence, have led to injuries of two of the staff members of ISS.  As a result, ISS have decided to close its office in Mong Kok and in Tsuen Wan, leaving open only the office at Prince Edward. 

9.  I am told by Mr Chen this afternoon that there are still about 20 to 30 people at the ISS office at Prince Edward, although Mr Tibbo informed the court that during the night time, only two or three people on the protestors’ side would stay there.

10.  I am not, on this application, called upon, nor am I in a position to adjudicate upon the underlying disputes between the refugees and ISS.  What ISS seeks to enforce by way of this application is its private law property rights.  ISS being the lessee of the three premises, it has a right of exclusive possession of them.

11.  Under our property law, the refugees, including the defendants, and indeed anyone else, may enter the property at the licence of ISS.  However, unless there is any contract or other property right in support of that licence, ISS is at liberty to terminate or revoke the licence, whereupon the persons who have entered into the premises and refuse to leave will become trespassers.

12.  The law is that a landowner whose title is not disputed is prima facie entitled to an injunction to restrain trespass on his land.  The Court of Appeal has also held in Billion Star Development v Wong Tat Chuen [2013] 2 HKLR 714, that the right of assembly and the right of freedom of expression are not absolute and cannot override the constitutionally entrenched right to protection of property. 

13.  In the context of this case, it seems to me that means while the defendants have a constitutionally protected right to freedom of expression and of assembly and demonstration, that right does not entitle them to claim to be able to occupy the premises against the wishes of ISS and its property rights.

14.  I am unable to accept the defendant’s submission that ISS have, by conduct, abandoned the properties. 

15.  In the circumstances, on an ex parte basis, it seems to me an appropriate case in which to grant an injunction to restrain the acts complained of.  There will, of course, be an opportunity for the defendants, if they so wish, to contest the matter on an inter partes basis with evidence filed if they are so advised.

(Godfrey Lam) Judge of the Court of First Instance High Court