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CACV 49/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 49 OF 2012
(ON APPEAL FROM HCA NO. 708 OF 2011)
________________________
BETWEEN
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BILLION STAR DEVELOPMENT LIMITED |
Plaintiff |
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and
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WONG TAK CHUEN (王德全) |
1st Defendant |
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YIP SIU CHAU (葉少舟) |
2nd Defendant |
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LO CHUNG CHEONG (盧松昌) |
3rd Defendant |
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CHEUNG CHI YIN (張志賢) |
4th Defendant |
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LEE WAI KUEN (李慧娟) |
5th Defendant |
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YU WAI KAN (余慧根) |
6th Defendant |
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PERSONS ENTERING OR REMAINING WITHOUT
THE CONSENT OF THE PLAINTIFF AT THE
REMAINING PORTION OF NEW KOWLOON
MARINE LOT NO 25 AND SECTION B OF NEW
KOWLOON MARINE LOT NO 25 AND OTHER
PERSONS INTERFERING WITH THE
PLAINTIFF’S RIGHT OF WAY OVER THE
PRIVATE ROADS IN MEI FOO SUN CHUEN IN
CONNECTION WITH THE PROTESTS AGAINST
THE PLAINTIFF’S PROPOSED DEVELOPMENT
OF THE SAID PROPERTIES
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7th Defendant |
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TSANG KIN SHING (曾健成) |
8th Defendant |
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LEUNG KWOK HUNG (梁國雄) |
9th Defendant |
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MO MAN CHING CLAUDIA (毛孟靜) |
10th Defendant |
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| Before: Hon Kwan, Fok and Lam JJA in Court |
| Date of Hearing: 26 February 2013 |
| Date of Handing Down Judgment: 8 March 2013 |
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J U D G M E N T
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Hon Kwan JA:
1. I agree with the judgments of Fok JA and Lam JA.
Hon Fok JA:
Introduction
2. This is the appeal of the 8th defendant against a final injunction order granted against him by Au J in his Judgment dated 10 February 2012.[1] The terms of the injunction granted and the circumstances of, and basis for, its grant are described below.
Factual and procedural background
3. The plaintiff is the registered owner of a property (the Remaining Portion of New Kowloon Marine Lot No. 25 and Section B of New Kowloon Marine Lot No. 25 (“the Property”)) situated within the Mei Foo Sun Chuen residential estate (“Mei Foo”). It wished to develop the Property by building a block of flats on it and the building plans were duly approved by the Building Authority.
4. The proposed redevelopment was opposed by, amongst others, some of the residents of Mei Foo because the proposed building would be erected in front of the residential blocks at Stage VIII of Mei Foo. In March and April 2011, this opposition led to protests organised by a protest group and organised protest activities to prevent the plaintiff from carrying out construction works. The protest activities included blocking access and entry, setting up cordons and lying on the ground to stop unloading.
5. Those protests were of some effectiveness because of the physical attributes of the Property, specifically the fact that the only direct vehicular access to it is via the private road within Mei Foo, known as Broadway South-West bound (“the Access Road”), and the Property is therefore landlocked.
6. The 1st to 6th defendants in this action were residents of Mei Foo and members of the protest group. They were the originally named defendants in the writ, together with the 7th defendant, named as “Persons entering or remaining without the consent of the plaintiff at [the Property] and other persons interfering with the plaintiff’s right of way over the private roads in Mei Foo Sun Chuen in connection with the protests against the plaintiff’s proposed development of the said properties”.
7. The plaintiff’s pleaded case, and the basis for the injunction order sought, was that, on divers dates in March and April 2011, the defendants had unlawfully trespassed on the Property and obstructed or otherwise interfered with the plaintiff’s right of way to prevent its contractors from carrying out the construction works for the development of the Property. This was the blanket allegation in paragraph 11 of the statement of claim, which was then followed by ten specific instances identified as C.1 to C.10 and pleaded in paragraphs 12 to 24.
8. On commencing the action on 20 April 2011, the plaintiff issued a summons seeking an interlocutory injunction against the 1st to 7th defendants in the following terms:
“An injunction restraining the Defendants, whether by themselves or by their servants or agents and all persons having notice of the Order to be made herein, from doing, procuring, causing, authorizing or permitting any of the following acts:
(1) Entering into, remaining at or in any way trespassing [the Property]; and
(2) Interfering with the Plaintiff’s use, occupation and enjoyment of the Property and its right of way (vehicular or otherwise) over the private roads in Mei Foo Sun Chuen and/or causing nuisance to the Plaintiff in respect of its use, occupation and enjoyment of the Property and its right of way (vehicular or otherwise) over the private roads in Mei Foo Sun Chuen by any means, including (but not limited to):
(a) entering into and/or remaining at the Property;
(b) preventing access (vehicular or otherwise) by the Plaintiff, its servants or licensees into and out of the Property;
(c) preventing access (vehicular or otherwise) by the Plaintiff, its servants or licensees to and through the private roads in Mei Foo Sun Chuen (including [the Access Road]) for the purpose of accessing the Property; and
(d) preventing the Plaintiff, its servants or licensees from carrying out works at the Property.
until after the trial of this action or further order.”
9. At the first hearing of the injunction application on 29 April 2011, a group of about 80 persons attended and claimed to be the 7th defendant. These included the defendants who were subsequently joined as the 8th, 9th and 10th defendants. At that hearing, the 8th defendant was represented by leading counsel who made submissions on his behalf. Deputy Judge Au-Yeung (as she then was) refused to grant an interim injunction, principally on the ground that the defendants should be given an opportunity to consider the application and file evidence in opposition.
10. The application then came on again before Au J on 19 December 2011. By that time, the plaintiff had issued an O.14 summons against the 1st to 6th, 8th and 9th defendants seeking final judgment for the injunction sought. By then, the 8th defendant had been formally joined as a party by amendment to the specially endorsed writ and had filed a defence. Of particular relevance are the plaintiff’s pleading of incident C.10 in the amended statement of claim and the 8th defendant’s response.
11. The plaintiff pleaded:
“(C.10) April 2011
23. On 3 April 2011, a group of around 500 individuals, including the 1st, 2nd, 3rd and, 4th, 8th, 9th and 10th Defendants and others claiming to be residents of Mei Foo Sun Chuen, obstructed Broadway by sitting and lying on the ground of Broadway outside Stage VIII of Mei Foo Sun Chuen, the only vehicular access to the Property, to protest against the Plaintiff’s proposed development of the Property.
24. The aforesaid protestors have stationed themselves outside the Property to monitor movement into and out of the Property, and have threatened to take further steps if the Plaintiff attempted to enter the Property to commence work thereon. Tents have been set up by the 7th Defendant at the entrance of the Property to monitor the Property on 24-hour basis.”
12. In response, the 8th defendant pleaded (Defence §9) that he had “lawfully participated in a rally at Broadway, Mei Foo Sun Chuen from about 3 p.m. to 5 p.m. on Sunday, 3 April 2011 … to protest against the Plaintiff’s proposed development of the Property”, but otherwise denied paragraphs 23 and 24. The Particulars which followed pleaded a specific denial of participation in the incidents alleged in paragraph 24. His presence at the protest rally on 3 April 2011 was also confirmed in his affidavit opposing the injunction.
13. Shortly prior to the hearing before Au J, the 1st to 6th defendants consented to final judgment for an injunction in the terms sought by the plaintiff and a consent order to that effect was made on 13 December 2011.
The hearing below and Judgment of Au J
14. What therefore remained in issue before Au J at the hearing on 19 December 2011 were the plaintiff’s applications for final and/or interlocutory injunctive relief against the 7th to 10th defendants.
15. Au J found that the plaintiff was the owner of the Property and had a legal right of way over the Access Road (Judgment §§25 to 35). He rejected the defences (pleaded by the 1st to 6th defendants and adopted by the 8th defendant) that: (i) there was illegality in the Building Authority’s approval of the plaintiff’s building plans (Judgment §58); (ii) there was a prescriptive right of way over the plaintiff’s Property (including those parts which formed part of the pedestrian walkway and the dual carriageway) (Judgment §59); (iii) the plaintiff had no right of way as a matter of construction of the relevant assignment to it of the Property (Judgment §60); and (iv) the presence of the defendants on the Access Road was an exercise of their constitutional rights, namely freedom of speech, freedom of assembly, procession and demonstration (Judgment §61).
16. Materially, on the question of interference with the plaintiff’s right of way, Au J held:
“36. Having satisfied that the Plaintiff has acquired the right [of] way to use the private roads (including the Access Road) within Mei Foo as contended, I further accept that there is ample evidence to show that a large group of individuals have (i) substantially interfered with Plaintiff’s right of way by completely blocking the access to the Property via the Access Road, (ii) created a nuisance by obstructing or impeding the Plaintiff from having proper access to its own Property, and (iii) trespassed onto the Property to prevent Plaintiff’s workers and vehicles from...
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