LEE SHING HONG LTD. v. LEON KO AND ANOTHER

HCA 1741/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1741 OF 2002

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J U D G M E N T

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1. This is an application for the continuation of an injunction granted by Suffiad J on 7 May 2002 upon the ex parte application on notice made by the Plaintiff against the two Defendants who have been appointed to represent the rather well-known organization Greenpeace.

2. The facts leading to the application for and the obtaining of the ex parte injunction have been set out quite clearly in the relatively short and condensed affidavit evidence filed with the Court for the purpose of the ex parte application, as well as for the purpose of the present application to continue the injunction.

3. The terms of the injunction have been set out in the ex parte order of Suffiad J. I need not repeat the facts or the contents of the injunction here given the urgency of the matter and the shortage of time.

4. In support of the Plaintiff's case for an injunction, Mr Whitehead SC, counsel for the Plaintiff, basically relies on 3 or perhaps 4 causes of action, they being private nuisance, conspiracy to injure or wrongful interference with economic interest and finally, defamation.

5. For the purpose of the continuation of the present injunction, Mr Whitehead expressly says that he is not relying on defamation as a ground in support of the continuation of the injunction. There is an obvious difficulty with any attempt to rely on defamation as a ground for supporting the grant or continuation of an interlocutory injunction. Freedom of speech or expression is involved and there are stringent requirements laid down by law regarding the grant of interlocutory injunction in the case of an alleged libel or slander.

6. In this sort of situation, the usual approach laid down by the House of Lords in American Cyanamid Co. v. Upjohn Co. [1975] AC 396 applies. In other words, I need to consider whether there is a serious question to be tried in relation to the causes of action relied on by the Plaintiff and if the answer is in the affirmative, then I have to consider the balance of convenience.

7. Now in relation to a serious question to be tried, having heard counsel's submission, I have no doubt that there is indeed a serious question to be tried relating to the various causes of action relied on by the Plaintiff.

8. The staging of demonstration at the lift lobby of the 8th Floor of New World Tower on the day when the injunction was obtained on an ex parte basis, can quite clearly sustain an arguable case based on private nuisance. The demonstration, accompanied by the various posters, signs and allegations made by the Defendants against the Plaintiff and the business it carries on, would again be capable of sustaining a complaint, on an arguable case basis, of unlawful interference with business interest, or a conspiracy relating to the use of unlawful means, or a conspiracy to injure. I need not say anything about the cause of action based on defamation, but in my judgment, there is indeed a serious question to be tried.

9. In relation to the cause of action based on private nuisance, Mr Cheung, appearing for the Defendants, points out to me that the duration was short and it was an one-off incident; but I think the law is clear that whilst the duration of the nuisance is a relevant factor to be taken into account and whether this is an one-off incident is also relevant, none of this prevents the matter from being an arguable matter fit to be tried at trial.

10. Having concluded the first issue in that way, I move on to consider the balance of convenience in question. I take into account, firstly, the risk of repetition of the demonstration in question. Mr Whitehead has a point when he submits to me that the fact is that the demonstration has taken place and that by itself is some evidence of a threat of repetition. And apart from that, when the demonstrators ended their demonstration on the day in question, they left behind a sign to the effect that the matter would be continued, or as Mr Cheung puts it, they would return or come back. And moreover, I do have the evidence filed by the first named Defendant that because of the cause for the demonstration in question, and because no doubt of the uncooperative attitude of the Plaintiff, they would not let go the matter, and they would continue with their campaign relating to the subject matter in question which directly concerns the business of the Plaintiff, namely, importation of timber by the Plaintiff from overseas.

11. On the other hand, I take into account what the Defendants have gone on oath to say, namely, that they have no intention of repeating the demonstration at the lift lobby of the 8th Floor outside the office premises of the Plaintiff. After the expression of judicial concern about the lack of any undertaking to back up what the Defendants say about their future intention in their affirmation evidence, Mr Cheung offers, on behalf of his clients, an undertaking to the Court to the effect that Greenpeace China, a limited company incorporated by the worldwide Greenpeace movement in Hong Kong to represent it, will not visit the 8th Floor premises again unless invited by the other side.

12. In my judgment, whilst I do not doubt the genuineness of the Defendants when they talked about the future intention of Greenpeace in their affirmations, in this sort of matter and given the nature of the dispute between the two sides, one just cannot ignore the risk of a future change of tactics on the part of Greenpeace to advance their cause in the protection of the environment. The matter is not helped by the fairly strong stance taken by the Plaintiff in the matter and there is every risk of an escalation of the confrontation between the two sides. So in my judgment, something either by way of an injunction or an undertaking from the appropriate persons would seem to be required in order to prevent the repetition of the demonstration at the 8th Floor premises.

13. Now this is not the only consideration to be taken into account in conducting this balancing exercise. I also consider the potential damage to the Plaintiff if no injunction is granted. Mr Cheung says the Plaintiff has not put in any substantive evidence to prove the alleged damage done to the Plaintiff because of the demonstration. But there cannot be any dispute that the demonstration attracted unwanted press publicity and caused interference with the daily operation of the office of the Plaintiff to some extent; and by the nature of things, this sort of damage or injury is difficult to quantify and that is precisely the reason why in this sort of situation, an injunction is usually a more appropriate form of relief than, say, an award of damages at the end of the day.

14. On the other hand, I also consider the damage to the Defendants if the injunction is continued. As presently worded, the injunction would prevent the Defendants from demonstrating at the 8th Floor of the office tower, as well as doing anything to interfere with the conduct of the Plaintiff's business at New World Tower, or causing any nuisance to the Plaintiff's enjoyment of the premises at the 8th Floor of New World Tower. That does not and would not stop the Defendants from say, holding their demonstrations with all those same signs at any other place like Chater Garden or Statute Square. So viewed in this light, the freedom of speech and freedom of expression, as well as the public interest involved in the whole matter, would not be materially affected by the continuation of the injunction. The public could still be informed of the environmental issue involved in the whole matter and public pressure could still be brought to bear on the Plaintiff to advance the cause of the Defendants, if they think that that is a correct way of advancing the matter.

15. Turning to public interest, there is some debate between counsel as to whether this can be taken into account or whether this is a defence or not. I have been referred to passages in Clerk & Lindsell on Torts (18th ed.) paras.19-71 to 19-72 as well as a rather well known case Millet v Jackson [1977] QB 966 concerning the playing of cricket in UK, but I think the learned editors of Clerk & Lindsell correctly state the law when they suggest that basically public interest is not a defence by itself, but in balancing the competing interests, this is a legitimate factor to be taken into account. I do take this factor into account, but this factor is to a substantial extent neutralized by the fact that this injunction does not seek to stop the Defendants from demonstrating at places other than the office tower where the Plaintiff has its office.

16. During submission, Mr Cheung also reminds me of the risk of setting a dangerous precedent. Apart from reminding me that we are operating in a common law system where case law does have the force of law under the doctrine of precedent, and apart from reminding me also that I should be careful with my decision, I do not think much else can be derived from this submission.

17. Certainly, I am mindful of the freedom of speech, the freedom of expression and the public interest concerned in the present case, but I think I have said more than once that the injunction granted by Suffiad J does not interfere with any of this, save that the exercise of the freedoms cannot be done at the office tower in question, in order to protect the legitimate interest of the Plaintiff pending the final adjudication of the dispute between the two sides. Moreover, every case should turn on its own facts, and this question of setting a precedent does not really bother me.

18. Another matter mentioned in this regard is about non-disclosure. This perhaps has nothing really to do with the balance of convenience, but it is convenient to mention it here. Some criticisms have been made by Mr Cheung in relation to the disclosure made by the Plaintiff relating to the alleged loss and damage suffered by the Plaintiff as a result of the demonstration on the day when the ex parte injunction was sought. I see nothing in these criticisms. The application for injunction was obviously made on an urgent basis and those acting for the Plaintiff had in fact done an admirably competent job in putting together the necessary material to be placed before the Court for the Court's consideration. I see nothing in it; and in fact after the obtaining of the injunction, further evidence has been filed. And moreover, the criticisms made by counsel did not surface until Mr Cheung put in his skeleton submission late yesterday, and the Plaintiff simply had no time to respond to the criticisms. And further and in any event, any non-disclosure or material non-disclosure would only affect the original ex parte injunction and would not affect the Court's discretion in granting a new injunction, assuming that the original injunction was discharged on that ground, if the circumstances would merit the grant of a fresh injunction.

19. So for all these reasons and bearing in mind the general circumstances of this case, I think the balance of convenience comes down on the side of the Plaintiff, and certain injunctive relief should be granted by the Court or continued by the Court. The only outstanding matters are two: one is whether the undertaking offered by the Defendants is sufficient; and two is the wording of the injunction or undertaking.

20. The one matter which gives me some difficulty is this: I have no doubt that based on what I have said, certain injunctive relief or undertaking in lieu should be granted or be given in relation to the holding of demonstration at the lift lobby of the 8th Floor; that is presently covered by paragraph 2(i) of the ex parte order. Paragraph 2(iii) of the order relating to causing nuisance to the Plaintiff's enjoyment of the office premises at the 8th Floor does not give me any difficulty. But paragraph 2(ii) relates to restraining the Defendants from interfering in any way with the conduct of the Plaintiff's business at New World Tower. That must, for example, cover the main lift lobby on the ground floor of the tower, or for that matter, any other part of New World Tower; and Mr Whitehead's understanding of this part of the injunction is that it extends to that portion of Queen's Road Central immediately outside New World Tower.

21. In relation to the cause of action based on private nuisance, I can see some justification for extending the injunction to the whole of New World Tower or at least the ground floor lobby of New World Tower, because the Plaintiff is a tenant of the premises, it has a right to use the common areas of the office tower and if demonstration is held there, then one can arguably say that there is interference of enjoyment of the Plaintiff's interest in New World Tower as a tenant. But the degree of interference would of course depend on the actual locality within New World Tower where the demonstration is held.

22. Now as I say the Plaintiff also relies on torts like unlawful interference with the business of the Plaintiff, conspiracy to injure and so forth. That, however, if used to support this part of the injunction, would give me cause to reconsider the question of freedom of expression and freedom of speech. This is because the interference would not be caused so much by holding a demonstration, but the subject of demonstration and particularly, how that subject is communicated to the public, i.e. by means of the posters and so forth.

23. And during submission, Mr Whitehead has some difficulty in drawing a distinction between holding such a demonstration within the office tower on the ground floor and holding such a demonstration at say, Chater Garden. If an injunction should be granted to stop the holding of a demonstration at the ground floor lift lobby of New World Tower or the pedestrian pavement outside based on the cause of action of wrongful interference with business interest or conspiracy to injure, then logic would seem to require the grant of a similar injunction even if the demonstration is held at Chater Garden. In the latter case, that would, in my judgment, be quite difficult to reconcile with the law's general protection of freedom of speech and freedom of expression in the context of interlocutory injunction. For this reason, the extension of the injunction to the public street, i.e. that part of Queen's Road Central immediately abutted by New World Tower, is highly problematic.

24. Mr Whitehead is of course right in pointing out to me that in Hubbard & Pitt [1976] QB 142, a similar injunction was granted by the English Court of Appeal preventing the defendants there from carrying out objectionable activities at the street outside the offices of the plaintiff in question. But each case depends on its own facts and Mr Cheung rightly points out to me that the activities of the defendants in that case were much more extensive and objectionable (from the point of view of the plaintiff) than the activities of the Defendants in the present case. Moreover, that case was decided by the English Court of Appeal in 1975; and so far as this jurisdiction is concerned recent cases by the highest court have reinforced the generally held view that freedom of expression and freedom of speech are important freedoms in this society and should not be lightly interfered with by any authority.

25. So on a balance of convenience, I do not agree that the injunction should extend to outside the office building in question, i.e. the pedestrian pavement of Queen's Road Central outside New World Tower. But as for the areas inside New World Tower, the consideration is slightly different. As I said, the Plaintiff's case based on nuisance becomes stronger once one gets inside the office tower premises. Moreover, in balancing the competing interests, I note that in relation to premises within New World Tower, the Defendants actually have no right to be there unless lawfully invited by occupiers of the premises to go inside. This is a building owned privately and occupied by commercial tenants. Of course the landlord grants a general licence for entry to anyone lawfully invited by the occupiers and tenants of the building to enter the building, yet if a person has no reason to believe that he is invited by anybody to enter the premises, or if he has no reason to believe that he is invited by any occupiers of the building to enter the building for demonstration purpose, he has no right whatsoever to enter the private premises. So in this regard, in balancing the various interests of the parties, I think the Plaintiff has made out a case for extending the injunction to the whole of the building itself.

26. For all these reasons, I do not agree that the limited undertaking offered by the Defendants is sufficient. In those circumstances, I am minded to continue the injunction with a minor revision of the wording of the original injunction granted, so as to make clear that the injunction does not extend to activities done outside New World Tower. Although I am going to continue the injunction, there is nothing to stop the Defendants from offering an undertaking in terms of the injunction that I am going to continue by persons or bodies who/which are acceptable to the Plaintiff, or failing agreement acceptable to the Court, in lieu of the injunction that I am going to continue.

27. So far as the actual wording of the injunction to be continued is concerned, I would change the word 'at' to 'in' in the original paragraph 2(ii) of the ex parte injunction. Subject to that amendment, I make an order that the ex parte injunction (as amended) granted by Suffiad J be continued until trial or further order of this Court. I should make it clear, for the avoidance of doubt, that in the course of today's hearing, I gave leave to the Plaintiff to join Greenpeace China as a 3rd Defendant in these proceedings, and Mr Whitehead proceeded with his application for continuation of injunction in respect of all three Defendants. So the injunction that I am continuing covers Greenpeace China as well: strictly speaking, I am continuing the ex parte injunction as amended against the 1st and 2nd named Defendants and am granting a new injunction in the same terms (and subject to the same undertaking as to damages) against Greenpeace China, both to continue until trial or further order. When I say I am granting a new injunction in the same terms against Greenpeace China, I am granting an injunction against Greenpeace China in the usual terms applicable to a corporate defendant. I would leave it to the Plaintiff to draft the injunction against Greenpeace China for the Court's approval.

28. On the question of costs, Mr Cheung informed me of some without prejudice save as to costs communications between the parties and the making of an offer of an undertaking in lieu of the injunction in question. To cut the story short, the proposed undertaking did not match what I eventually ordered today after hearing submissions from the parties. In my judgment what has been said by Mr Cheung is not sufficient to displace the usual order as to costs in this type of situation. The order as to costs that I am going to make must reflect the result of today's hearing, and the result of today's hearing is that the Plaintiff is successful in getting what it asks for save for a minor amendment relating to the original scope of the injunction. Costs should follow the event but of course, this is just an interlocutory injunction, so the usual order as to costs i.e. the plaintiff's costs in the cause, applies, and I make such an order in favour of the Plaintiff.