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All China Express Ltd v Kwok Cheuk Kin And Others

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date01 December 2014
Year2014
Judgement NumberHCA2223/2014
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA2223/2014 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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BETWEEN
KWOON CHUNG MOTORS COMPANY LIMITED
(冠忠遊覽車有限公司)		 Plaintiff

and
PERSONS WHO ERECTED OR PLACED OR MAINTAINED OBSTRUCTIONS OR OTHERWISE DO ANY ACT TO CAUSE OBSTRUCTIONS, OR TO PREVENT OR HINDER THE CLEARANCE AND REMOVAL OF THE OBSTRUCTIONS OR OCCUPYING ON THE PORTION OF CONNAUGHT ROAD CENTRAL EASTBOUND BETWEEN EDINBURGH PLACE (WESTERN PORTION) AND EDINBURGH PLACE (EASTERN PORTION) (“SECTION 1”) AND/OR THE PORTION OF HARCOURT ROAD EASTBOUND BETWEEN EDINBURGH PLACE (EASTERN PORTION) AND COTTON TREE DRIVE (“SECTION 2”) AND/OR THE PORTION OF COTTON TREE DRIVE TOWARDS MID LEVELS (“SECTION 4”) (TOGETHER “THE AREA”) TO PREVENT OR OBSTRUCT NORMAL VEHICULAR TRAFFIC FROM PASSING THE AREA 1st Defendants
KWOK CHEUK KIN 2nd Defendant
WONG HO MING 3rd Defendant

------------------------

HCA 2223 of 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2223 OF 2014

------------------------

BETWEEN
ALL CHINA EXPRESS LIMITED
(跨境全日通有限公司)		 Plaintiff

and
PERSONS WHO ERECTED OR PLACED OR MAINTAINED OBSTRUCTIONS OR OTHERWISE DO ANY ACT TO CAUSE OBSTRUCTIONS, OR TO PREVENT OR HINDER THE CLEARANCE AND REMOVAL OF THE OBSTRUCTIONS OR OCCUPYING ON THE PORTION OF CONNAUGHT ROAD CENTRAL EASTBOUND BETWEEN EDINBURGH PLACE (WESTERN PORTION) AND EDINBURGH PLACE (EASTERN PORTION) (“SECTION 1”) AND/OR THE PORTION OF HARCOURT ROAD EASTBOUND BETWEEN EDINBURGH PLACE (EASTERN PORTION) AND COTTON TREE DRIVE (“SECTION 2”) AND/OR THE PORTION OF COTTON TREE DRIVE SOUTHBOUND BETWEEN HARCOURT ROAD EASTBOUND AND QUEENSWAY (“SECTION 3”) (TOGETHER “THE AREA”) TO PREVENT OR OBSTRUCT NORMAL VEHICULAR TRAFFIC FROM PASSING THE AREA 1st Defendants
KWOK CHEUK KIN 2nd Defendant
WONG HO MING 3rd Defendant

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Before: Hon Au J in Chambers
Dates of Hearing: 11 and 17 November 2014
Date of Judgment: 1 December 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 1st 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 2nd and 3rd defendants. They both accept and confirm to the court that they fall within the descriptions of the 1st 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 2nd and 3rd defendants, none of the 1st 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 2nd 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...

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