CHIU LUEN PUBLIC LIGHT BUS CO LTD v. PERSONS UNLAWFULLY OCCUPYING OR REMAINING ON THE PUBLIC HIGHWAY NAMELY, THE WESTBOUND CARRIAGEWAY OF ARGYLE STREET BETWEEN THE JUNCTION OF TUNG CHOI STREET AND PORTLAND STREET AND/OR OTHER PERSONS HINDERING OR PREVENTING THE PASSING OR REPASSING OF ARGYLE STREET AND ANOTHER

HCA 2086/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2086 OF 2014

_______________

____________________

_______________

D E C I S I O N

_______________

1. These are the applications by the 2^nd and 3^rd defendants seeking leave to appeal against the orders I made in the judgment handed down on 10 November 2014 (the “Main Judgment”), and a stay of the orders principally pending appeal.

2. I do not think the intended grounds of appeal raised by them are reasonably arguable with a reasonable prospect of success.  I would therefore refuse to grant leave.

3. As the matters are likely to go further, I would only give some brief reasons for my decision.

4. I will deal with Ms Li SC’s grounds for the 3^rd defendant first as to why I say they are not reasonably arguable.

UNDER HCA 2086/2014

5. Grounds 1 and 2 are in substance a repeat of the 3^rd defendant’s arguments before this court.  For the same reasons I have set out in the Main Judgment, I do not think they bear a reasonable prospect of success for the purpose of the appeal.

6. Ground 3 is a misreading of the judgment.  Paragraph 36 must be read together with paragraphs 33-35, which are to deal with the alternative assumption that if it was Ms Li’s argument that the court should decide on the question of law on the basis of taking the plaintiff’s evidence to the highest.  The court in the earlier passages of the judgment has already assessed the plaintiff’s evidence to say why, applying the legal principles summarised at paragraphs 19-21 therein, the plaintiff has on the state of the evidence already shown a triable issue of fact on the question of particular, substantial and direct loss.  See also paragraph 37 of the Main Judgment.

7. Ground 4 in my view was not formally argued before this court.  But in any event, the interim injunction granted will not finally dispose of the action in favour of the plaintiff as submitted.  There are still claims for damages and there are also no suggestions that the defendants (or any of them) would not re-obstruct the areas if the plaintiff’s claims are eventually dismissed.  This question must also be looked at in the context that the defendants have never raised any grounds that they have a legal right to obstruct the blocked areas in the way as the defendants have been doing to exclude other members of the public from using them.

8. Ground 6(1) is unarguable.  The right of abatement is not the basis to support the injunction.  Ground 6(2) is also not arguable: other than that it was not formally raised before the court, in any event, the plaintiff has said on the evidence that the minibuses could not use the blocked areas, it is for the defendants to show otherwise.

9. Ground 7 is in my view not even a proper ground of appeal.  It amounts to no more than saying that the plaintiff’s claim has no merits.

10. Ground 8 is effectively a repeat of all the grounds above.

UNDER HCA 2104/2014

11. All the grounds under this action except ground 5 (relating to the right to bring representative actions) are effectively the same as raised in HCA 2086/2014.  For the same reasons mentioned above, I find them not to be reasonably arguable.  As to ground 5, it is effectively a repeat of the arguments made before this court, and for the reasons I have set out in the Main Judgment, I also find them not reasonably arguable for the intended appeal.

12. I now turn to the 2^nd defendant’s grounds under both actions as raised by Mr Dykes SC.  The grounds under both actions are in substance the same, and with respect, I also find them to be not reasonably arguable for the following brief reasons.

13. For grounds (1) to (7), they are effectively a repeat of the arguments previously advanced before this court.  For the same reasons set out in the Main Judgment, I do not find them to be reasonably arguable.

14. For ground (8), the arguments were not previously raised before this court.  In any event, I do not find them having a reasonable prospect of success.  The procedural provisions in Police Force Ordinance (Cap 232) (“PFO”) and the Magistrates Ordinance (Cap 227) referred to by Mr Dykes could not, as a matter of construction, in my view limit the general meaning of “offences” in “any offences… for which a person may (on a first conviction for that offence) be sentenced for imprisonment” of s 50(1)(a) of the PFO as submitted by Mr Dykes.

STAY APPLICATIONS

15. As I would not grant leave to appeal, I also see no basis of staying the orders as asked for by the 2^nd and 3^rd defendants.

16. Ms Li for the 3^rd defendant has apparently also raised a submission (through a skeleton faxed to the court yesterday seeking an urgent stay) that a stay should be granted (presumably generally) on the basis that no directions for substituted service (which would in any event only be relevant to the 1^st unnamed defendants, but not the 3^rd defendant represented by Ms Li) have been made for the present orders.  On my further inquiry today, I understand that Ms Li is contented not to advance this as a formal ground for stay, given the court’s indication yesterday that it must be its intention to include the directions for substituted service as originally contained in the original injunction when the court continued the original injunction, and, as a matter of fact, in the draft orders provided to the court by the plaintiffs, they do include the directions for substituted service.

17. For all these reasons, I would dismiss the 2^nd and 3^rd defendants’ summonses, with costs to the respective plaintiffs to be taxed if not agreed.  There be certificate for two counsel for the plaintiffs under HCA 2104/2014.  The 2^nd and 3^rd defendants’ own costs be taxed in accordance with legal aid regulations.