HCA002055/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 2055 OF 2000
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BETWEEN
SINGH HARWINDER
1st Plaintiff
SINGH RANJIT
2nd Plaintiff
AND
SINGH GURMAIL
1st Defendant
SINGH HARJANG
2nd Defendant
BHOLLA
3rd Defendant
SINGH JARNAIL
4th Defendant
SINGH BALJINDER
5th Defendant
SINGH PALMINDER
6th Defendant
SINGH LAIK
7th Defendant
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Coram: Deputy High Court Judge Z.E. Li in Chambers
Date of Hearing: 25 April 2000
Date of Reasons for Ruling: 9 May 2000
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REASONS FOR RULING
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In gist, the Plaintiffs in this action allege, according to their Statement of Claim, that the Defendants have assaulted, threatened and interfered with them. On 3 March 2000, Yeung J granted on an inter partes summons an interim injunction restraining the Defendants "from assaulting, threatening, molesting, disturbing or approaching by contacting by any means the plaintiffs or their family members" On 31 March 2000, Chung J, at an adjourned hearing, continued the interim injunction. On 14 April 2000, the inter partes summons went before Stock J as summons judge who adjourned it to Yuen J the same day. Yuen J again continued the interim injunction until "the hearing". On 25 April 2000 the matter came before me, presumably for hearing.
2. My immediate reaction to this interlocutory matter is that there are too many hearings. Basically, in the circumstances of this case where all that the Plaintiffs seek is a non-molestation injunction and the Defendants are saying they had not and do not intend to molest, as an interim measure, an injunction or an undertaking from the Defendants not to interfere with the Plaintiffs and their family would be justified until trial of the action. And I did tell the Defendants that there is no point in contesting the interlocutory injunction which does not in any way prejudice their case at the trial. However, the Defendants say that if they are bound by an injunction or an undertaking, the Plaintiffs would probably manufacture a case of breach of the injunction or undertaking and cite them for contempt of court.
3. In my view, if the Plaintiffs are liable to manufacture a case they would do so in the absence of an injunction or undertaking. In any event, the court will of course consider the evidence very carefully before finding any one in contempt.
4. There is, however, a legal issue which may be in the Defendants' favour. At the hearing before his Lordship, Stock J referred to Gouriet v Union of Portal Workers [1978] AC 435 and pointed out that the application in this case may be misconceived because the Plaintiffs are seeking redress for a public wrong. Although Stock J did not go into this issue I, hearing the summons, have to resolve it. The nature of the present action and application is as already stated. The Gouriet case is at least different on facts. I think I only need to rely on the relevant parts of the headnotes of that reported case:-
"On Thursday, January 13, 1977, it was publicly announced that the executive council of the Union of Post Office Workers (U.P.W.) had unanimously resolved to call on its members not to handle mails to South Africa during the week beginning at midnight on Sunday the 16th, in response to a call from the International Confederation of Free Trade Unions to its member unions for protest action against the South African government's policy of "apartheid", and on the Friday, the press reported that similar action was proposed by other British trade unions, including the Post Office Engineering Union (P.O.E.U.).
On Friday the 14th, the plaintiff applied to the department of the Attorney-General for his consent to act as plaintiff in relator proceedings for an injunction to restrain the U.P.W. from soliciting or endeavouring to procure any person wilfully to detain or delay any postal packet in the course of transmission between England and Wales and the Republic of South Africa.
The Attorney-General stated that "having considered all the circumstances including the public interest" he had concluded that he should not give his consent to the application. The plaintiff thereupon issued the writ of summons in his own name and applied to the judge in chambers for a final injunction. The judge refused the order. The plaintiff appealed, and the Court of Appeal at a special sitting on the Saturday granted him an interim injunction in the terms asked for against the U.P.W. It also gave him leave ex parte to join the P.O.E.U. as defendants and also to join the Attorney-General as a defendant, the injunction to run until 10:30 am on Tuesday the 18th or such other time as the Attorney-General might be able to attend to assist the court. In face of that order the proposed boycott by post office employees did not take place.
On the resumed hearing the plaintiff had amended his pleadings to claim permanent injunctions against both trade unions and a declaration that the Attorney-General by refusing his consent had acted improperly and wrongfully exercised his discretion.
The Attorney-General applied for the declaration against him to be struck out on the grounds that his discretion to consent or refuse to act as plaintiff in relator proceedings was absolute and could not be reviewed by the courts; that he did not have to give his reasons, and that the court was not entitled to inquire into them; and that if his decision was wrong he was answerable to Parliament alone.
The two trade unions applied under R.S.C., Ord. 18, r. 19(1)(a), to strike out the writ and statement of claim against them on the ground that as the Attorney-General alone could seek an injunction in a civil court to prevent a threatened breach of the law, and as he had refused to do so, the plaintiff's pleadings disclosed no reasonable cause of action.
All parties appealed to the House of Lords, the plaintiff no longer claiming that the Attorney-General's refusal of consent to the relator proceedings was improper or that it could be reviewed by the court:-
Held, allowing the appeals by the defendants and dismissing the plaintiff's appeal, (1) that save and in so far as the Local Government Act 1972, section 222, gave local authorities a limited power so to do, only the Attorney-General could sue on behalf of the public for the purpose of preventing public wrongs and that a private individual could not do so on behalf of the public, though he might be able to do so if he would sustain injury as a result of a public wrong, for the courts had no jurisdiction to entertain such claims by a private individual who had not suffered and would not suffer damage (post, pp 481A, 494F, G, 500D, 511D - 512F, 518D - 519A, 521A, B).
London County Council v Attorney-General [1902] A C 165, HL (E.) considered.
(2) That the court had jurisdiction to declare public rights but only at the suit of the Attorney-General ex officio or ex relatione since he was the only person recognised by public law as entitled to represent the public in a court of justice (post, pp 483 B-G, 495F, 502B-D, 515D-H, 523A-F).
London Passenger Transport Board v. Moscrop [1942] A C. 332, HL(E.) applied.
Dyson v. Attorney-General [1912] 1 Ch. 158, C A distinguished.
Dictum of Lord Denning M R in Attorney-General ex rel. McWhirter v. Independent Broadcasting Authority [1973] Q B 629, 649, C A disapproved.
(3) That the plaintiff having no legal right recognisable by the courts there was no power under section 45(1) of the Supreme Court of Judicature (Consolidation) Act 1925 to grant an interim injunction (post, pp 483B-G, 495C-G, 500H-501B, 516B-G, 523G).
Observations of Cotton LJ in North London Railway Co. v. Great Northern Railway Co . (1883) 11 Q B D 30, 39, C A applied.
Decision of the Court of Appeal [1977] Q B 729; [1977] 2WLR 310; [1977] 1 All E R 696 reversed."
5. It appears quite clear to me that the wrong in question in the Gouriet case was a "public wrong". The "wrong" in the present case, if proven at trial, is clearly an affront to the individual or private rights of the Plaintiffs. In short, the Gouriet is irrelevant and the Plaintiffs are entitled to an appropriate injunction should their cause or causes of action come up to the proof.
6. There is, however, one other issue which has not been fully canvassed. This is that, I was told, there were and still are criminal proceedings against at least some of the Defendants on the complaint of the Plaintiffs and related persons. I have come across situations in which there are parallel civil and criminal proceedings on more or less the same facts linking the same or some of the same parties in which the civil court would order stay of the civil proceedings pending the outcome of the criminal trial, the rationale being that proceeding with the civil action may prejudice the defendants in the criminal case. I do not know to what extent the same rationale may be relevant here but since the Defendants are apparently saying that they did not do as alleged by the Plaintiffs I suppose the Defendants' case in the criminal case or cases would not be prejudiced any way. Both on account that stay has not been canvassed by the Defendants on the ground of prejudice to parallel criminal proceedings and that the Defendants' case is one of denial, I shall not go into the issue further. It is, of course, open to the Defendants to bring it up properly. In any event, even if stay is appropriate, a civil court may order an interim non-molestation injunction as a matter of convenience to preserve the peace.
7. Accordingly, I ordered that the interim injunction granted by Yeung J and continued by Chung J be further continued until further order and the costs of the summons so far reserved. As I have mentioned, I believe there are too many interlocutory hearings. The correct approach, I think, is to press on with this case for trial subject to whatever is happening with the criminal cases which may have an effect herein.
8. Finally, on the question of legal aid. I have been told that all the Defendants would qualify under any means test but apparently the Director of Legal Aid has refused legal aid for the Defendants. Presumably, this was on the merits. I must say I am a little surprised by the refusal of legal aid to the Defendants when the Plaintiffs have been granted legal aid. Even if some of the Defendants have been convicted by a criminal court on the same allegations of the Plaintiffs there are other Defendants who have been acquitted and they, these other Defendants, may well have sufficient merits for trial even though legal aid may not be justified for contesting the application for injunctions at this stage. Accordingly, I advised the Defendants to appeal against the refusal of legal aid.
(Z E Li)
Deputy Judge of the Court of First Instance
Representation:
Ms Susanna Chan, of Messrs Susanna W F Chan & Co., for the Plaintiff
Defendants, in person