ALL CHINA EXPRESS LTD v. KWOK CHEUK KIN AND OTHERS

HCA 2222 & 2223 of 2014

HCA 2222 of 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2222 OF 2014

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J U D G M E N T

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A. INTRODUCTION

1. These are the respective applications by the plaintiff under each of these two actions for an interlocutory injunction against the defendants.  The injunctions sought relate to the occupation and blockage by the defendants of portions of Harcourt Road, Connaught Road and some nearby roads in Admiralty.  The occupation arises from the occupy central campaign (“the OCC”) whereby a large number of unidentified protestors and demonstrators have occupied various parts of the public roads in Hong Kong directed against the constitutional development in Hong Kong.

2. The plaintiff (“Kwoon Chung”) in HCA 2222/2014 is the operator of various school bus services.  Relevant to this application is Kwoon Chung’s school bus service route (“Route 9”) which carries students to and from Pier 3 in Central and the Island School at Borrett Road in the Mid-Levels. For convenience, I would refer to this action as the “Kwoon Chung Action”.

3. The plaintiff (“ACE”) in HCA 2223/2014 is the operator of cross-border bus services.  Relevant to this application is the Wan Chai cross‑border route (“the Wan Chai Route”), which carries passengers to and from Wan Chai in Hong Kong to Huanggang Port in Shenzhen in the Mainland. Again for convenience, I would refer to this action as the “ACE Action”.

4. In both actions, it is not disputed that since late September 2014, unidentified protestors and demonstrators (ie, the 1^st defendants) have through themselves and by placing various barricades and obstructions occupied and blocked the following parts of the roads near Central and Admiralty:

(1)  The portion of Connaught Road Central eastbound between Edinburgh Place (Western Portion) and Edinburgh Place (Eastern Portion) (“Section 1”);

(2)  The portion of Harcourt Road eastbound between Edinburgh Place (Eastern Portion) and Cotton Tree Drive (“Section 2”);

(3)  The portion of Cotton Tree Drive southbound between Harcourt Road eastbound and Queensway (“Section 3”); and

(4)  The portion of Cotton Tree Drive towards the Mid-Levels (“Section 4”).

The locations of Sections 1, 2, 3 and 4 are identified respectively in Map A, B, C and D as provided by the plaintiffs.  Copies of these Maps are attached to this judgment for reference.

5. There is also no dispute that the said blockages and obstruction of these Sections have completely prevented any vehicular traffic to pass through these areas.

6. It is Kwoon Chung’s case that the school bus operating under the Route passes through the area (“the Kwoon Chung Action Area”) under Sections 1, 2 and 4 in its usual and normal operation.  However, because of the obstruction and blockages of the Kwoon Chung Action Area, the Route 9 school bus has to take a detour in its route (“the Detour Route”).  As a result, the travelling distance of the route has increased from 3.9km to 6.2km, thereby also increasing the average travelling time by about 6 minutes.

7. It is ACE’s case that normally the cross-border buses under the Wan Chai Route pass through the area (“the ACE Action Area”) under Sections 1, 2 and 3.  However, because of the blockages of the roads in this area, and the severe general traffic congestions in northern Hong Kong Island (in particular in the area between the Western Harbour Tunnel and Wanchai) resulted from the said blockages, the buses operating under the Wan Chai Route have to take a detour and cancel the drop-off point at Wan Chai MTR station.  The detour has caused an increase in the average travelling time of the southbound route of the Wan Chai Route by 10-20 minutes.

8. By way of the respective actions herein, Kwoon Chung and ACE therefore claim against the defendants for damages and injunction in public nuisance.

9. In the present application, Kwoon Chung now asks for an interlocutory injunction to restrain the defendants until trial effectively from:

(1)  Continuing to block and occupy the Kwoon Chung Action Area (whether by themselves and/or by placing obstructions thereat) to prevent vehicular access; and

(2)  Preventing Kwoon Chung or its authorised agents from removing the obstructions placed in the Kwoon Chung Action Area.

10. Similarly, ACE asks for an interlocutory injunction to restrain the defendants until trial from:

(1)  Continuing to block and occupy the ACE Action Area (whether by themselves and/or by placing obstructions thereat) to prevent vehicular access; and

(2)  Preventing ACE or its authorised agents from removing the obstructions placed in the ACE Action Area.

11. These applications are opposed by the 2^nd and 3^rd defendants.  They both accept and confirm to the court that they fall within the descriptions of the 1^st defendant in each of these actions, in that they have been occupying and obstructing the Kwoon Chung Action and ACE Action Areas.

12. Other than the 2^nd and 3^rd defendants, none of the 1^st defendants turns up in court to oppose the applications.

13. Before I turn to deal with the applications, it is pertinent to note that this court has recently in HCA 2086/2014 and 2104/2014 (collectively, the “Mongkok Injunction Cases”) dealt with similar applications for interlocutory injunction against the protestors under the OCC occupying certain parts of the roads in Mongkok.  By a judgment dated 10 November 2014 (“the Mongkok Injunctions Judgment”), I continued the injunctions in the Mongkok Injunction Cases. Respectively under HCMP 2975 & 2976/2014[1], HCMP 3028/2014[2] and HCMP 3090/2014[3], the court of appeal has dismissed the various applications for leave to appeal against the Mongkok Injunctions Judgment.

14. As will be seen later, most of the issues raised in the present applications are similar or related to the ones raised in the Mongkok Injunction Cases.  Therefore, whenever necessary, I may refer to these court of appeal judgments and the Mongkok Injunction Cases Judgment when I deal with these issues.

B.  THESE APPLICATIONS

B1.  Applicable principles

15. It is well established that generally in determining whether or not to grant an interlocutory injunction, the court has to see (a) whether there are serious issues to be tried, (b) whether damages would be an adequate remedy for either side, and if damages would not be adequate for both parties, (c) where the balance of convenience lies in terms of whether or not to grant an interim injunction pending the trial of the matter.  In that balancing exercise, the court must take into account the interests of the general public even though they are not represented before the court.  See: Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 at paragraph 14 per G Lam J.

16. However, Mr Pun for the 2^nd defendant contends in the present cases that the court should not apply the threshold of whether there are serious issues to be tried in determining whether to grant the injunction.  This is so, says Mr Pun, as the grant of an injunction in the present cases would or likely to have the effect of finally disposing of the matters.  As such, the court should apply the threshold that the plaintiffs need to show that it is very likely that they will succeed at trial.  See: Fast-Link Express Ltd v Falcon Express Ltd (unreported, HCA 2040/2005, 30 December 2005, Deputy High Court Judge Carlson) at paragraph 9.

17. Mr Pun also relies on the case of City of Bradford Metropolitan Council v Brown (1987) 19 HLR 16 at 21-22 to support his submissions that, in an application for interim injunction as the present one, the court should at least reach a “provisional” view on the question of whether the plaintiff has the necessary standing to bring the claim.

18. I do not accept these contentions.

19. I have similarly applied the threshold of a serious issue to be tried in the Mongkok Injunction Cases.  In dismissing the defendants’ respective applications for leave to appeal in those cases, the court of appeal rejected the similar arguments that this court was wrong to adopt the serious issues to be tried threshold in those cases.  Thus, the adoption of this threshold in cases which are similar to the present ones has been approved by the court of appeal.  See HCMP 2975/2014 at paragraphs 9 to 19 per Cheung CJHC, and HCMP 3028/2014 at paragraphs 8-9 per Lam VP.

20. Further, the court of appeal in dismissing the applications for leave to appeal against the Mongkok Injunctions Judgment also does not accept that City of Bradford Metropolitan Council is an authority to support that a higher threshold than the one of serious issue to be tried should be adopted in an application as the present ones: HCMP3028/2014, supra, at paragraph 9 per Lam VP.

21. For these reasons, I reject Mr Pun’s contentions and would adopt the threshold of serious issue to be tried in the present applications as part of the considerations to determine whether to grant the interlocutory injunctions or not.

22. Applying the above principles, I now look at these applications.

B2.  Serious questions to be tried

B2.1  A claim in public nuisance by private individuals

23. It is uncontroversial that the occupations and blocking of the Kwoon Chung Action Area and the ACE Blocked Area amount to public nuisance in law.

24. It is also well established that for a private individual (as opposed to the Secretary for Justice) to bring a claim in public nuisance, he has to show that he has suffered by reason of the public nuisance a “particular, substantial and direct” injury or damage, which is above and beyond what has been suffered by the rest of the public at large: Benjamin v Storr (1874) LR 9 CP 400 at 406-406 per Brett J.

25. The question that I have to consider under this head is thus whether there is a serious issue to be tried as to whether each of the plaintiffs has suffered such a particular, substantial and direct damage.

26. As I have said in the Mongkok Injunctions Judgment[4], in relation to what amounts to a particular, substantial and direct damage in the law of public nuisance, the authorities show that:

(1)  Whether a damage or loss said to be suffered by the plaintiff can be regarded as particular, substantial and direct is essentially a question of fact, and a matter of degree and extent: Jan de Nul v Royale Belge [2000] 2 LLR 700 at paragraph 44 (p 715).

(2)  The “particular” damage needs not be pecuniary (and thus special) in nature.  It may consist of proved general damage, such as inconvenience and delay provided that it is substantial, that it is direct and non-consequential, and that it is appreciably greater in degree than any suffered by the general public: Walsh v Ervin [1952] VLR361 at 371 per Scholl J.

(3)  “Substantial” means no more than that the damage suffered is more than trivial: Jan de Nul, supra, at paragraph 44.

(4)  It is also not necessary prove that the plaintiff has any injury to property, or has any interest or relationship with any land or building: Benjamin v Storr, supra, at 406; Leung Tsang Hung v The Incorporated Owner of Kwok Wing House [2007] 10 HKCFAR 480 at paragraph 13 per Ribeiro PJ.

27. Further, I have also said that[5] the authorities support that the requirement of “direct” damage is satisfied not only by one which is immediately caused by or flowed from the nuisance.  It also covers those injuries and damage which are caused by or flowed from the nuisance through a chain of events, so long as those events can be regarded as probable events as a result of the nuisance and the chain is not broken by external matters unrelated to the nuisance.  It is a question of fact in each case as to whether the damage claimed to be suffered fall within the requisite chain of events.  See: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mount No 2) [1967] 1 AC 617, at 634E-636D per Lord Reid; Gravesham v British Railways Board [1978] 1 Ch 379 at 396F-397C and 398H-399B.

28. The court of appeal has held that there are at least a triable issue raised in relation to these legal propositions[6].

29. In light of these at least triable legal propositions, I will now examine the plaintiff’s respective case on the question of particular, substantial and direct damage.

B2.1.1  The Kwoon Chung Action

30. In this action, Kwoon Chung’s case and evidence on its loss and damage suffered by reason of the blockages can be summarised as follows[7]:

(1)  Given the Detour Route, the school buses under Route 9 have to travel at an increased distance, which has increased the average travelling time by about 6 minutes.  Further, the pick-up time at Pier 3 by the school bus has to be moved to 6:30 am, which is 40 minutes earlier than the normal pick-up time.

(2)  As a result, for the month since 6 October 2014 until 31 October 2014[8], Kwoon Chung has suffered damage in the nature of increased fuel cost at $843.18 and overtime payments to its drivers at $3,750, totalling $4,593.18.

(3)  Further, the students and the drivers all have to wake up relatively earlier in order to catch the school buses because of the earlier pick-up time, and thus have suffered inconvenience and hardship.

(4)  If continued, Kwoon Chung would also suffer damage to its reputation as a school bus operator and to its good relationship with the affected schools, students and parents.

31. In my view, Kwoon Chung has not raised a triable issue that it has suffered a particular, substantial and direct damage. My reasons are as follows.

32. First, although the pecuniary loss said to be suffered by Kwoon Chung can at least arguably be said to be amounting to “peculiar” and “direct” damage by reason of the public nuisance, I am not satisfied that it can arguably be said that the loss is one which is “substantial”.  As I mentioned above, what amounts to “substantial” damage for the purpose of enabling a private individual to bring a claim in public nuisance is that the loss must be more than trivial.  In the present case, the total pecuniary loss of $4,593.18 cannot be said to be more than trivial.  This is in fact accepted by Kwoon Chung itself: Mr James Wong in his affidavit at paragraph 23 accepts that “the monetary damage to the plaintiff … may seem relatively trivial…”.  In the circumstances, the loss suffered by the plaintiff does not even arguably amount to “substantial” damage as understood in the law of public nuisance.

33. Second, in relation to the suggestion of damage to its reputation or relationship with the schools, students and parents, there is simply no triable evidence to show that Kwoon Chung’s said reputation is or is likely to be so damaged.  As a matter of common sense, it is obvious that the increased travelling time is caused by the occupation of the affected area by reason of the OCC.  That is something beyond Kwoon Chung’s control and has nothing to do with its ability and skill in the operation of school buses (and thus its reputation).  It would unlikely lead to any damage to its reputation. This is underlined by the lack of evidence to show that the parents, students or schools have been laying the blame on Kwoon Chung[9].  Quite to the contrary, the evidence of various other parents’ emails and letters shows that they were aware of the fact that the increased travelling time was caused by the OCC and thus they fully supported Kwoon Chung’s intended application for an injunction[10].

34. Finally, the inconvenience and hardship said to be suffered by the students and the drivers are simply not one suffered by the plaintiff.  It cannot be regarded as the plaintiff’s damage or injury.

35. For these reasons, I am not satisfied that Kwoon Chung has shown any triable issues that it has suffered a particular, substantial and direct damage as a result of the public nuisance to enable it (as a private individual) to bring a claim in public nuisance.

36. On this basis alone, I would refuse Kwoon Chung’s application for an interlocutory injunction.

B2.1.2  The ACE Action

37. ACE’s case and evidence on its loss can be summarised as follows[11]:

(1)  ACE operate, among others, the cross-border bus services under the Wan Chai Route, where the relevant passenger service licence is held by ACE’s wholly owned subsidiary All China Express (Wanchai) Ltd.

(2)  Because of the blocking of the ACE Action Area, and the resultant severe general traffic congestions in northern Hong Kong Island caused by the blockages, (a) the average travelling time of the southbound cross-border buses under the Wan Chai Route has increased by about 20.9% (some 10‑20 minutes), (b) ACE has to cancel the drop-off point at Wanchai MTR station of the Wan Chai Route, and (c) the buses have not been able to provide on time scheduled services.

(3)  Given the significant increase in the travelling time, the cancellation of the Wanchai MTR drop-off point, and that ACE can no longer provide on time services in accordance to the schedule under the Wanchai Route, the number of passengers and the sales turnover of the Wanchai Route have dropped significantly.  In particular, the ticket sales of the southbound service have decreased over 17% (in the sum of $691,754) for the period between 29 September and 26 October 2014.

(4)  ACE has therefore suffered pecuniary loss.  It will also suffer irreparable damage to its business reputation in operating cross-border buses.

38. Since ACE’s business derives income or profits from the operation and provision of transport services in Hong Kong, I accept that the above evidence on the said loss of income by reason of road blockages clearly raises a serious issue to be tried as to whether this amounts to a particular, substantial and direct damage under the law of public nuisance. As said by the learned Chief Judge, it is almost a matter of common sense.  Moreover, this is a mixed question of law and fact which can and should only be properly resolved at a full trial.  See: HCMP 2975/2014, supra, at paragraphs 19 and 20 per Cheung CJHC; also The Mongkok Injunctions Judgment, at paragraphs 30-32.

39. Mr Pun for the 2^nd defendant submits that there are authorities to show that a private individual (for the purpose of bringing a claim in public nuisance) must demonstrate that his loss is also above and beyond the class which he or his business belongs to.  In other words, if the damage is common to all persons of the same class, then a personal right of action in public nuisance is not maintainable.  Counsel relies on Hickey v Electric Reduction Co of Canada (1970) 21 DLR 368 at 371-372 and Ricket v Metropolitan Railway Co (1867) LR 2 HL 175 at 190, 199 to support this proposition.  Thus, contended Mr Pun, as ACE’s loss is in nature no different from that suffered by everyone in the class of transport service operators in Hong Kong, it has not suffered any particular loss that would entitle it to bring a private claim in public nuisance.

40. Mr Pun also says in determining the meaning of “particular damage over and above the damage suffered by the public at large”, the court has to bear in mind the rationale behind this rule.  The rationale is to avoid multiplicity of proceedings and to avoid usurping the discretion of the Secretary for Justice (“SJ”) whether to take action in the common interest of the public.  Mr Pun seeks to find support of these submissions in Wagon Mount No 2, supra, at 635-636, R v Rimmington [2006] 1 AC 459 at paragraph 8 and William’s Case (1591) 5 Coke Reports 72 at 73a.

41. For the present purpose of an interlocutory injunction, suffice for me to say that these contentions on class interest and on the rationale to avoid multiplicity of suits only add further facets to the arguments in law and on the facts as to what could satisfy the requirement of a particular, substantial and direct damage in the circumstance of the present case.  As I mentioned above, what amounts to a particular, substantial and direct loss is essentially a question of law and fact.  In light of the other authorities I have referred to in paragraphs 26 and 27 above, these authorities relied on by the 2^nd defendant could not be regarded as determinative in the present case at an interlocutory stage to show that ACE has not suffered a particular, substantial and direct loss.

42. Mr Pun’s contentions therefore only show that there is a serious issue to be tried on the different legal propositions relied on by the respective parties made under this question, which should only be determined after mature debates and arguments at trial.  See the observations by Cheung CJHC in HCMP2975/2014, supra, at paragraph 19.  See also The Mongkok Injunctions Judgment,paragraphs 42-48.

43. As to Mr Pun’s argument on the need to avoid usurping SJ’s discretion, I will adopt my reasons set out at paragraphs 60-61 below and paragraphs 42-49 of the Mongkok Injunctions Judgment to reject it as a valid basis to say that there is not triable issue on the question of whether ACE’s has suffered a particular, substantial and direct loss.

44. For all the above reasons, I reject all of Mr Pun’s above contentions and am satisfied that ACE has shown a serious issue to be tried in its claim in public nuisance against the defendants.

45. I now move on to the question of balance of convenience.

B3.  Balance of convenience

46. It is in my view clear that the balance of convenience lies in favour of granting the interim injunction.  This is because:

(1)  Damages are not a sufficient remedy for ACE given that:

(a)  there is no suggestion that, if no injunction is granted now, the unidentified 1^st defendants and the 2^nd and 3^rd defendants are in a position to meet the damages after trial;

(b)  further, as observed by the learned Chief Judge in HCMP 2975/2014 at paragraph 17, if no interim injunction is granted in the meantime and if ACE succeeds at trial to show particular, substantial and direct damage and a good claim in public nuisance, it will have suffered in the interim further loss and damage, for which damages are also likely to be difficult to assess.

(2)  At the same time, the defendants simply have no legal right whatsoever to occupy and block in the way the protestors do the public roads in question.  As such, if the interlocutory injunction pending trial is granted but ACE fails at trial in establishing its claim in public nuisance, the defendants will not in the meantime have suffered, by the grant of the injunction, the loss of anything which they have never had a right to in the first place.  See: HMCP 2975/2014 at paragraph 12 per Cheung CJHC.

(3)  In the premises, the balance of convenience lies overwhelmingly in favour of granting the injunction.  It is clearly just and convenient in all the circumstances to grant the injunction. Cf: HCMP 2975/2014 at paragraphs 8-12, 17-22.

47. However, the 2^nd and 3^rd defendants respectively raise a number of contentions to say why the court should not exercise its discretion to grant the injunction.  I will deal with each of them in turn.

48. First, Mr Pun for the 2^nd defendant says the plaintiff cannot engage the judiciary in a matter which is effectively a matter of political choice for the Executive.  Counsel says the court’s equitable jurisdiction should not be exploited as a means to resolve political disputes, especially when the Executive may well have made a deliberate choice to order its law enforcement agents not to take any action against the protestors occupying the concerned areas.  He says the police clearly have lawful power to do so but refrained from doing so.  There must be, says counsel, good policy reasons for the tolerance of these protestors by the Executive, and it is thus unjust for the plaintiff to invoke the court’s equitable jurisdiction to intervene in such a highly sensitive political matter.  The court therefore should not exercise its discretion to grant the injunction.

49. Similarly, the 3^rd defendant also argues that the occupation and blocking of the roads are conducts arising out of political issues, which should be resolved politically.  Thus, the court should not be engaged to revolve what are essentially political problems.

50. I do not accept these contentions.

51. As repeatedly emphasised by the court in the past, in deciding cases, including the present ones, the court would determine them only by applying the law and would not take into account any political considerations.  As demonstrated in the analyses above, this is precisely what this court is doing: adjudicating and resolving disputes concerning the parties’ legal rights in accordance to the law, and the law alone.  The fact that it also happens that there is political underlying to these disputes does not and should not affect the court’s role and duty in adjudicating those legal rights.  Nor should the court refrain from adjudicating those legal rights in the dispute.

52. As I have said above, it is when looking at the present matter in accordance with the law that the balance of convenience lies overwhelmingly in favour of granting the injunction to address and balance the respective private rights of the parties.

53. In this respect, I would also respectfully refer to Lam VP’s observations in HCMP 3028/2014 at paragraph 36 as follows:

“36.  We understand there are exceptional political circumstances which gave rise to the unlawful occupation in the present case.  But the court has to be involved in this instance because the rights of private citizens protected by the law are said to be threatened and they seek redress from the court.  In so doing, they are exercising a constitutional right conferred on them by article 35 of the Basic Law.  It is the duty of the court to adjudicate upon and, where justified, give effect to such rights according to law.  Even in cases where protesters are pursuing a noble cause which they feel strongly about (and we express no view on the protest in the case before us), this does not give them any right in the eyes of law to trample upon the rights of the others who may or may not agree with their cause.  This is an important facet of the rule of law which, as judges, we must uphold.”

54. The 2^nd and 3^rd defendants’ above submissions in effect are asking the court to take into account political considerations (ie, the fact that the Executive has, because of possibly various policy and political considerations, so far “tolerated” the protestors’ occupations) to determine the legal rights between private parties.  This cannot be right.

55. Further and in any event, even if the court is to and can take into account of this fact, I do not think it is a matter that that would tip the overwhelming case in favour of granting the injunction as I have said above.

56. I would therefore reject these contentions as a basis for not granting the injunction.

57. Second, Mr Pun for the 2^nd defendant says there is delay on the part of ACE in taking out this application for injunction.  In the premises, the court should refuse to exercise discretion to grant it.  In support of the contention, counsel relies on Rogers VP’s observation in King Fung Vacuum Ltd v Toto Toys Ltd [2006] 2 HKLRD 785 at paragraph 20 as follows:

“20. There has traditionally been a strong requirement when interlocutory injunctions have been sought, that the plaintiff must show that it has acted promptly and without delay. Promptly in the circumstances of interlocutory injunctions has been commonly understood to be a period of six weeks or so of unexplained delay and three months with an explanation given for the delay in making application for an injunction. Since the American Cyanamid decision the importance of irreparable damage in an application for an interlocutory injunction is paramount. If there is no irreparable damage demonstrated then the need for an interlocutory injunction has not been shown. This is important because of the approach that the courts take to interlocutory injunctions. They are not the trial of the action and the court is concerned with whether irreparable damage will occur before a trial can take place. It stands to reason that if a party is prepared to allow matters to proceed and takes no action with respect to matters which have been extant for lengthy periods, it lies ill in their mouth to say that there is likely to be irreparable damage and that is the case here.” (Mr Pun’s emphasis)

58. It is trite that delay in taking out an interim injunction is one of the factors (albeit sometimes a very weight factor depending on the circumstances of the case) that the court should take into account in deciding how to exercise the discretion.  It is however not an absolute bar to the grant of an injunction.  The ultimate question is still, after taking into all the circumstances of the case, including the nature and length of any delay in question, whether the court regards it as just to grant the injunction.  See also: Abbott GmbH & Co v Pharmareg Consulting Co Ltd [2009] 3 HKLRD 524 at paragraphs 80-95 per Sakhrani J, and the cases cited therein.

59. In the present case, given that (a) the length of the delay is at most about one month or so[12], and (b) it was unclear in the beginning that the said occupation would last indefinitely as it is now, I do not think it can be said that the delay is a serious one and wholly inexcusable.  In the premises, given also that the defendants simply have no legal rights to occupy the roads in the way as they do to completely deprive the rest of public’s right to use them, I am still of the clear view that, notwithstanding the delay, this is an overwhelming case that it is just and convenient to grant the injunction.

60. Third, Mr Pun says the court should exercise great caution in deciding whether to grant the injunction sought when it is invoking the assistance of the civil courts in aid of the criminal law.  The court should consider, counsel contends, whether the injunction would exacerbate the situation and whether it would likely to be futile as (suggested Mr Pun) the demonstrators may move to other areas not covered by the injunction.  He relies on Gouriet v Union of Post Office Workers at 481C-H to support this contention.

61. I am unable to accept Mr Pun’s submissions. Similar arguments relying on Gouriet have been raised in the Mongkok Injunction Cases.  I have rejected them at paragraphs 42-49 of the Mongkok Injunctions Judgment.  I would simply adopt those reasons herein to reject Mr Pun’s arguments.  Further, Mr Pun’s submission that the injunction would likely to be futile as the demonstrators may move to other areas is wholly misplaced. The purpose of the injunction is to prevent the continued occupation and blocking of the ACE Action Area pending trial.  Thus, the suggestion that some demonstrators may move to other areas does not thereby render the injunction useless and futile.  

62. Fourth, the 3^rd defendant submits that in the exercise of its discretion, the court should take into account the defendants’ right to demonstration and the fact that they are carrying out “civil disobedience” in occupying the concerned area.

63. I do not think these factors in the circumstances of the present case can constitute a valid basis for not granting the injunction.  As fairly accepted by the 3^rd defendant, all these rights are not absolute and are subject to limitation.  The court must balance these rights against the public’s unquestioned rights to use the roads.

64. In deciding to grant an ex parte injunction in the Mongkok Injunction Cases, Poon J rejected the potential arguments that the right to demonstration and the notion of civil disobedience in occupying the public roads and streets amounted to good bases for not granting the injunction.  The learned judge explained his reasons at paragraphs 25-27 and 30-31 of the judgment as follows:

“Balancing the public interest involved

25.  The right to use public highway in a lawful and reasonable manner for legitimate purposes is a right commonly enjoyed by all members of the public.  No one can possibly claim a monopoly of using the public highway in total disregard of the interests of his fellow citizens, no matter how honourable or noble his cause may be.  That is so even if the right to demonstration or assembly as guaranteed by the Basic Law is engaged.  It is a question of balancing the competing interests and considering what is reasonable in the overall circumstances of the case.

26.  I derive support for that proposition from the judgment of the Court of Final Appeal in Yeung May Wan v HKSAR [2005] 8 HKCFAR 137.  The majority of the Court of Final Appeal in that case had this to say :

‘42.  It is clear that a person who creates an obstruction cannot be said to be acting without lawful excuse if his conduct involves a reasonable use of the highway or public place.  The suggestion in some of the earlier reported cases that the public’s right to use the highway is limited to the right of passage and repassage and acts incidental or ancillary thereto, is too narrow.  It is now established that ‘...the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage.’

43.  Many examples of obstructions which may nevertheless constitute reasonable use of the highway can be found in the two cases...’

And examples are given by the Court of Final Appeal and they went on to say at p157B-D :

‘43. …It seeks to strike a balance between possibly conflicting interests of different users of the highway based on a requirement of reasonableness. Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done.

44.  Where the obstruction in question results from a peaceful demonstration...’

And I stress ‘peaceful demonstration’ :

‘44. ...a constitutionally protected right is introduced into the equation. In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction. While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.’

In short, a balancing exercise has to be carried out to balance on the one hand the general public’s right to use the highway and on the other those who are exercising their right to demonstration or assembly on the highway.

27.  Having evaluated the overall circumstances, I think the balance tilts in favor of granting the interim injunction so that the rights enjoyed by the plaintiffs to use the areas occupied can be restored.

…

Civil Disobedience

30.  I next come to the question of civil disobedience because as I have said the “Occupy Central” Campaign is avowedly a form of civil disobedience.  The nature of civil disobedience is explained by Lord Hoffmann in R v Jones [2007] 1 AC 136 as follows :

‘89. My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country...’

That is in England :

‘89. …People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history... It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law‑breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account...

90.  These appeals... and similar cases concerned with controversial activities, such as animal experiments, fox hunting, genetically modified crops, nuclear weapons and the like, suggest the emergence of a new phenomenon, namely litigation as the continuation of protest by other means.  The protesters claim that their honestly held opinion of the legality or dangerous character of the activities in question justifies trespass, causing damage to property or the use of force. By this means they invite the court to adjudicate upon the merits of their opinion and provide themselves with a platform from which to address the media on the subject.  They seek to cause expense and, if possible, embarrassment to the prosecution by exorbitant demands for disclosure such as happened in this case.

91.  In Hutchinson v Newbury Magistrates’ Court (2000) I22 ILR 499,where a protester sought to justify causing damage to a fence at Aldermaston on the ground that she was trying to halt the production of nuclear warheads, Buxton LJ said at p510 :

‘[T]here was no immediate and instant need to act as Mrs Hutchinson acted, either [at] the time when she acted or at all : taking into account that there were other means available to her of pursuing the end sought, by drawing attention to the unlawfulness of the activities and if needs be taking legal action in respect of them. In those circumstances, self-help, particularly criminal self‑help of the sort indulged in by Mrs Hutchinson, cannot be reasonable.’

92.  I respectfully agree.  The judge then went on to deal with Mrs Hutchinson’s real motive, which (‘on express instructions’) her counsel had frankly avowed.  It was to ‘bring the issue of the lawfulness of the Government’s policy before a court, preferable a Crown Court.’  Buxton LJ said at p510 :

‘[I]n terms of the reasonableness of Mrs Hutchinson’s acts, this assertion on her part is further fatal to her cause. I simply do not see how it can be reasonable to commit a crime in order to be able to pursue in the subsequent prosecution, arguments about the lawfulness or otherwise of the activities of the victim of that crime.’

93.  My Lords, I do not think that it would be inconsistent with our traditional respect for conscientious civil disobedience for your Lordships to say that there will seldom if ever be any arguable legal basis upon which these forensic tactics can be deployed.”

31.  I am mindful of the fact that I am only dealing with the applications and the evidence before me on an ex parte basis, but on the materials before me when the demonstration in question based on civil disobedience have taken place for so long, in such a scale which has affected so many people and which has the real risk of turning into civil disorder, I do not think the fact that the demonstration is civil disobedience, no matter how noble the underlying cause the participants may consider it to be, can constitute a factor which militates against the granting of an injunction.”

65. I respectfully agree with Poon J’s above reasons and would adopt the same herein to reject the 3^rd defendant’s above contentions as a ground to oppose the granting of the interim injunction in the present case.

66. Finally, the 3^rd defendant also says the police have so far not been able to “clear” the ACE Action Area.  He further says it may well be that the police lack the necessary resources to carry out the task.  If so, the court should not (contended the 3^rd defendant) grant the injunction unless the plaintiff can satisfy this court how it would be able to effectively enforce the injunction (if granted).

67. I must reject this submission.  It amounts to no more than saying that the court should not grant the injunction as it would not be complied with.  This cannot be right.  Court orders are expected to be and should be obeyed.  Therefore, as a matter of principle, it cannot be a proper reason not to grant an injunction because of the concern that it may not be complied with.  For this, again I would further respectfully adopt Poon J’s observations at paragraph 28-29 of his judgment in the Mongkok Injunction Cases as follows:

“28.  I next consider the possibility that the court order might not be obeyed.  This is a point raised by Mr Mok [counsel for the plaintiffs] in the course of his submissions.  He drew my attention to the relevant cases in England.  One is the English Supreme Court’s decision in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] 1 WLR 2780 at para 17 where Lord Rogers cited South Bucks District Council v Porter [2003] 2 AC 558 :

“32. …When granting an injunction the court does not contemplate that it will be disobeyed ... Apprehension that a party may disobey an order should not deter the court from making an order otherwise appropriate : there is not one law for the law-abiding and another for the lawless and truculent.”

In a similar vein, Lord Neuberger said at paragraph 81 that :

“81. On the other hand, in the same paragraph of his opinion, Lord Bingham also said that ‘[a]pprehension that a party may disobey an order should not deter the court from making the order otherwise appropriate.’ A court may consider it unlikely that it would make an order for sequestration or imprisonment, if an injunction it was being invited to grant were to be breached, but it may none the less properly decide to grant the injunction. Thus, the court may take the view that the defendants are more likely not to be trespass on the claimant’s land if an injunction is granted, because of their respect for a court order, or because of their fear of the repercussions of breaching such an order. Or the court may think that an order of imprisonment for breach, while unlikely, would nonetheless be a real possibility, or it may think that a suspended order of imprisonment, in the event of a breach, may well be a deterrent….”

29.  As indicated in the course of Mr Mok’s submissions, it is the foundation of the rule of law in Hong Kong that a court order is to be obeyed.  And I fully expect that that order that I am going to make will be obeyed, even if the defendants disagree with it.  If they feel aggrieved by the order, they should come back to court so that the question whether they can continue with their occupation of the areas affected by their activities can be resolved in a peaceful and legal manner with the benefit of mature consideration of the law applicable to their rights and obligations on the one hand, and those of their fellow citizens affected by their activities on the other.

68. In the premises, I reject all of the 2^nd and 3^rd defendants’ above contentions as to why the court should not grant of the interlocutory injunction.  As I said above, the balance of convenience overwhelmingly supports the grant of the interim injunction as sought by ACE.

C.  CONCLUSION AND THE TERMS OF THE INJUNCTION

69. For the above reasons, I would reject Kwoon Chung’s application but allow ACE’s application for an interlocutory injunction.

70. ACE has provided to this court a draft order which is in the following terms:

(1)  The defendants and each of them be restrained until trial or a further order made by the court, whether by themselves or agent or servant or howsoever from doing, causing, authorising, permitting the doing of, any of the following acts, namely:

(a)  Occupying portions of Connaught Road Central Eastbound between Edinburgh Place (Western Portion) and Edinburgh Place (Eastern Portion) (ie, “Section 1” which is more particularly coloured red and marked on the Plan Y attached hereto) and/or the portion of Harcourt Road Eastbound between Edinburgh Place (Eastern Portion) and Cotton Tree Drive (ie, “Section 2” which is more particularly coloured red and marked on the Plan Y attached hereto) and/or the portion of Cotton Tree Drive Southbound between Harcourt Road Eastbound and Queensway (ie, “Section 3” which is more particularly coloured red and marked on the Plan Y attached hereto) (together referred to as “the ACE Action Area”) to prevent or obstruct normal vehicular traffic from passing the ACE Action Area;

(b)  Erecting, placing, maintaining, building or otherwise set up tents, canopies, barriers, barricades or other structures obstacles or obstruction, or doing any other act, to prevent or obstruct vehicular traffic from passing the ACE Action Area; or

(c)  Obstructing or preventing or interfering with, or doing any other act which deters, the plaintiff through it agents properly authorized in writing from or in dismantling or removing barriers and other obstacles and obstruction in or from the ACE Action Area.

(2)  Leave to serve the Order herein on the 1^st defendants by advertising the Order in one Chinese and one English newspaper circulating in Hong Kong; and placing the Order (with a Chinese translation of the same) in clear plastic envelopes and attached to a board or post, or other prominent location in the Area (with the permission of the Police or another government authority); together with a Notice (in Chinese and English) notifying the 1^st defendants that they can obtain copies of the Order, the inter parte summons, Writ of Summons, and supporting affirmation by applying to the Plaintiff’s solicitors at an identified address during normal office hours, upon payment of the usual photocopying charges.

(3)  Liberty to apply.

71. Plan Y attached to the draft order is one which effectively comprises of Map A, B and C as attached to this judgment.  However, I am not satisfied that the descriptions in the draft order together with Plan Y provide sufficient precision as to the locations and delineations of Sections 1, 2 and 3 as covered by the injunction for the purpose of enforcement.  As such, I direct that the parties shall appear before this court on 4 December at 2:30pm whereby ACE shall provide to this court a revised plan with sufficient particulars and/or landmark references (eg, such as lamppost numbers) to identify with sufficient precision the location and delineations of Sections 1, 2 and 3.

72. Further, to avoid any doubt and to facilitate the potential enforcement of the injunction, I would also include in the order a direction that, when requested by the plaintiff, the bailiff do take all reasonable and necessary steps to assist the plaintiff and its agents (properly authorised in writing) to effect the clearance and removal of the obstructions as provided in the injunction, and that the bailiff be authorised to request the assistance of the police where necessary.

73. In this respect, I would repeat what I have said in the Mongkok Injunctions Judgment[13] in that, under the law, a person who, with knowledge of a court order, and deliberately impedes the bailiff in the due execution of his duties is liable for criminal contempt as his conduct intentionally and deliberately interferes with or impedes the due administration of justice.  Under the Police Force Ordinance (Cap 232), a police officer has power to arrest any person who he reasonably believes or suspects of being guilty of criminal contempt.  In other words, the police have always been empowered under the law to arrest anyone who is reasonably suspected of committing an act of criminal contempt.  This power is not dependent on whether the court has made a direction to that effect or not.

74. Finally, as to costs, I would make an order nisi that (a) costs of ACE’s application be to the ACE to be taxed if not agreed, with certificate for two counsel, (b) costs of Kwoon Chung’s application be to the 2^nd and 3^rd defendants, to be taxed if not agreed, and (c) the 2^nd defendant’s own costs in both actions be taxed in accordance with legal aid regulations.  This order shall become absolute 14 days from today unless any of the parties applies to vary it by summons.