HONGKONG INTERNATIONAL TERMINALS LTD AND ANOTHER v. LEE CHEUK YAN AND OTHERS

HCA 526/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 526 OF 2013

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D E C I S I O N

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Material Non Disclosure

1. At the hearing before Li J on 1 April 2013, the 1^st Defendant and some other defendants were present, and Mr Lee had impressed upon Li J the defendants’ constitutional right under the Basic Law and under the international Conventions to strike, to peacefully picket, and to participate in trade union activities.

2. His Lordship was acutely aware of these rights, as well as the provisions of the Trade Unions Ordinance, when he exercised his discretion to grant the injunction on 1 April 2013 to restrain the defendants from entering Plaintiffs’ premises and from obstructing access to and egress from the Plaintiff’s property, in the terms specified in the injunction.  His Lordship referred to the defendants’ constitutional rights and to balancing such rights with the property rights of the Plaintiffs, and the safety issues of the Plaintiffs’ staff and workers, including the safety of the defendants and the people participating in the activities and within the compounds of the container yard.

3. For that reason, but without in any way detracting from or undermining the importance of a plaintiff’s duty to make full and frank disclosure whilst applying for interlocutory injunctions , and the duty of a plaintiff in every case to draw to the attention of the court all matters relevant to the court’s determination of the case before it, I do notconsiderthat the injunction granted on 1 April should be discharged on the ground that the Plaintiffs had failed to highlight to the court that the defendants have a constitutional right or statutory right under s 43A and/or s 46 of the Trade Unions Ordinance to attend at or near the place where they work or where the plaintiffs carry on their business, in furtherance or contemplation of a trade dispute, or of their trade union activities.

Serious Question to be tried/arguable cause of action

4. The plaintiffs are not seeking to restrain workers from exercising their lawful right to strike.  The defendants also recognize that their right to picket, to strike, and to demonstrate cannot be exercised unreasonably or unlawfully, and that there can and should be reasonable, lawful and proportionate restraints to their rights.

5. Section 46 of the Trade Unions Ordinance relied on by the defendants does not give the defendants the unfettered right to attend at the place where they work.  It is lawful for them so to attend if they do so “merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working”.  Section 46 is subject to the express proviso that it shall not be lawful for them to attend at the place of work if they attend “in such numbers or otherwise in such manner as to be calculated to intimidate any person in that place, or to obstruct the approach thereto or egress therefrom, or to lead to a breach of the peace”. 

6. I do not agree, from the submissions so far made, that s 43A of the Ordinance gives to the defendants absolute immunity from civil suit in respect of any act done or in contemplation or furtherance of a trade dispute.  Section 43A only provides that no suit or legal proceeding shall be maintained, whether against an employer, an employee or a member or officer of a registered trade union, in respect of any act done or in contemplation or furtherance of a trade dispute “on the ground only that such act induces some person to break a contract of employment or is an interference with the trade, business or employment of some other person”.  If there is a case of other unlawful act, whether it be against the property of another person, such as trespass, or whether it be assault, or harassment, such suit can still be brought.  Leading Counsel for the Plaintiffs highlight that the courts have never hesitated in upholding the rights of a property owner against trespass to such rights.

7. Even accepting that there should be a higher threshold of proof in a case such as this, where the grant or refusal of interlocutory relief may dispose of the substantive parts of the action, there was sufficient evidence before the learned judge on 1 April 2013 that there was an arguable cause of action, with some likelihood of success at trial, of trespass and/or nuisance by virtue of the defendants’ acts, on the basis of there being obstruction of the approach to the Plaintiffs’ property, or a breach of peace.  I do not agree that plaintiffs had no cause of action to support the interim injunction granted on 1 April.

8. The application to discharge the injunction is dismissed, with costs to the plaintiffs.

(Discussion on continuation of the injunction and area where defendants propose to picket.)

Whether injunction should be extended

9. The circumstances today are different to those before the court on 1 April 2013.  I have not seen any evidence that the defendants have created further obstruction, or threatened to create obstruction to the approach to or egress from Plaintiffs’ property.  Nor is there any evidence of acts of violence, or other unlawful acts committed or threatened to be committed by the defendants.  The defendants appear to have been demonstrating peacefully outside the Plaintiffs’ property.  In all the circumstances of this case, I am only prepared to grant an injunction in limited terms, to restrain the defendants from:-

(1)       entering into, occupying, remaining at or in any way trespassing Terminals 4, 6, 7 and 8 East at Container Port Road South, Kwai Chung and Terminal 9 North at Tsing Yi Road, Tsing Yi (“Terminals”); and

(2)       preventing or obstructing access (vehicular or otherwise) by the 1^st and 2^nd Plaintiffs, their servants or licensees into and out of the Terminals;

until after the trial of this action or further order.

10. Nothing in the injunction order shall restrain any of the defendants from:-

(1) entering the Terminals for the purpose of carrying out their lawful duties pursuant to their contracts of employment; or

(2) entering into the Terminals in the carpark (marked in blue on the plan submitted to the court) in numbers not more than 80 in total merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working, in accordance with s 46 of the Trade Unions Ordinance, and subject to the proviso specified in the said s 46 of the Ordinance.

11. The costs of the summons to continue the ex parte injunction be in the cause.

12. Leave to appeal is granted to the parties.