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Goldon Investment Ltd v Persons Who Erected Or Placed Or Maintained Obstructions Or Otherwise Do Any Act To Cause Obstruction, Or To Prevent Or Hinder The Clearance And Removal Of The Obstructions At The Entrances Or Exits Of Citic Tower, 1. Tim Mei Avenue, Central, Hong Kong (“Citic Tower”), And/or The Vehicular/pedestrian Passageway At Tim Mei Avenue And/or Lung Wui Road Which Block Vehicular Or Pedestrian Access To Citic Tower And Another

Judgment Cited authorities 12 Cited in Precedent Map Related
Vincent
Judgment Date10 November 2014
Year2014
Judgement NumberHCA2094/2014
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA2086A/2014 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 OTHERS

HCA 2086/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2086 OF 2014

_______________

BETWEEN
CHIU LUEN PUBLIC LIGHT BUS COMPANY LIMITED
(潮聯公共小型巴士有限公司)		 Plaintiff

and
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 1st Defendant
NG TING PONG (吳定邦) 2nd Defendant
FOK WAI PONG DOMINIC 3rd Defendant
CHEN RAYMOND 4th Defendant

____________________

HCA 2094/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2094 OF 2014

____________________

BETWEEN
GOLDON INVESTMENT LIMITED Plaintiff

and
PERSONS WHO ERECTED OR PLACED OR MAINTAINED OBSTRUCTIONS OR OTHERWISE DO ANY ACT TO CAUSE OBSTRUCTION, OR TO PREVENT OR HINDER THE CLEARANCE AND REMOVAL OF THE OBSTRUCTIONS AT THE ENTRANCES OR EXITS OF CITIC TOWER, 1. TIM MEI AVENUE, CENTRAL, HONG KONG (“CITIC TOWER”), AND/OR THE VEHICULAR/PEDESTRIAN PASSAGEWAY AT TIM MEI AVENUE AND/OR LUNG WUI ROAD WHICH BLOCK VEHICULAR OR PEDESTRIAN ACCESS TO CITIC TOWER 1st Defendant
WONG YUEN CHING 2ndDefendant

________________________

HCA 2104/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2104 OF 2014

____________________

BETWEEN

LAI HOI PING (黎海平) 1st Plaintiff
(suing on his own behalf and on the behalf of all other members of Hong Kong Taxi Association 香港計程車會)
TAM CHUN HUNG (譚駿雄) 2nd Plaintiff
(suing on his own behalf and on the behalf of all other members of Taxi Drivers and Operators Association 的士司機從業員總會)
and
PERSONS OCCUPYING PORTIONS OF NATHAN ROAD NEAR TO AND BETWEEN ARGYLE STREET AND DUNDAS STREET TO PREVENT OR OBSTRUCT NORMAL VEHICULAR TRAFFIC FROM PASSING AND REPASSING THE OCCUPIED AREAS 1st Defendant
NG TING PONG (吳定邦) 2nd Defendant
FOK WAI PONG DOMINIC 3rd Defendant
CHEN RAYMOND 4th Defendant

____________________

Before: Hon Au J in Chambers (Open to the public)
Dates of Hearing: 24 and 27 October 2014
Date of Judgment: 10 November 2014

________________________

J U D G M E N T

________________________

A. INTRODUCTION

1. In each these three actions, the plaintiffs obtained an ex parte injunction before Poon J on 20 October 2014 against the respective unnamed defendants. For convenience, I would call the action under HCA 2094/2014 as the “CITIC Tower Action”, under HCA 2086/2014 as the “Taxi Operators Action” and under HCA 2104/2014 the “Minibus Manager Action”.

2. The injunctions obtained relate to what is now widely known as the Occupy Central Campaign (“OCC”) in Hong Kong directed against the constitutional development of Hong Kong. Under the OCC, mass protestors and demonstrators have since late September occupied parts of a number of major roads on Hong Kong Island and Kowloon. The occupations have been “reinforced” by the protestors and demonstrators in placing and securing various barriers, barricades and objects on these parts of the roads and streets. The result is that vehicular traffic through these parts of the roads and streets has been effectively completely blocked.

3. The defendants in all these actions are the respective unidentified protestors and demonstrators who have occupied the relevant parts of the roads or streets that said to have affected the plaintiffs. In the CITIC Tower Action, the plaintiff (as the owner of CITIC Tower in Admiralty) brought the claim against the defendants on the bases of both private nuisance and public nuisance. In both the Taxi Operators Action and the Minibus Manager Action, the plaintiffs (who said they derive their incomes from the operations or related operations of respectively taxis and minibuses) premised their claims on public nuisance.

4. The ex parte injunction (“the CITIC Tower Injunction”) obtained under the CITIC Tower Action is one which effectively restrains the 1st unnamed defendants from (a) obstructing or maintaining obstruction (whether by themselves or through placing objects thereat) at the entrances and exits of CITIC Tower and the vehicular and pedestrian passage at Tim Mei Avenue and Lung Wui Road which block vehicular or pedestrian access to CITIC Tower, and (b) preventing the plaintiff from clearing and removing the obstructions and obstacles presently placed thereat obstructing the said CITIC Tower’s entrances and exits, as well as vehicular and pedestrian exits.

5. The ex part injunction obtained under the Taxi Operators Action is effectively to restrain the defendants (either by themselves or by placing objects thereat) from (a) occupying portions of the Nathan Road near and between Argyle Street and Dundas Street (“the Blocked Area”) to prevent or obstruct vehicular traffic from passing and re-passing the Blocked Area, and (b) preventing the plaintiffs from removing any such obstructions from the Blocked Area.

6. The ex parte injunction obtained under the Minibus Manager Action is to restrain the defendants (either by themselves or by placing objects thereat) from (a) occupying portion of the westbound carriageway of Argyle Street between the injunction of Tung Choi Street and Portland Street (“the Blocked Way”) to prevent or obstruct vehicular traffic from passing and re-passing the Blocked Way, and (b) preventing the plaintiffs from removing any such obstructions placed on or from the Blocked Way.

7. For convenience, I would call these two injunctions collectively the “Mongkok Injunctions” as both the Blocked Area and the Blocked Way are at one of the busiest areas in Mongkok.

8. Before me now are the respective plaintiffs’ applications by way of inter partes summons to (a) continue these injunctions, and (b) ask for certain directions to facilitate the enforcement of the injunctions. The latter part of the applications is necessary, say the plaintiffs, as there has been en masse flouting and non-compliance of the ex parte injunctions by the defendants after they have been granted. I would of course return to this when I have to deal with this part of the applications.

9. These applications are opposed at the hearing:

(1) Under the Taxi Operators Action and the Minibus Manager Action, Mr Ng Ting Pong (after obtaining legal aid) and Mr Dominic Fok have appeared (after joined as the 2nd and 3rd defendants respectively) to oppose the continuation of the Mongkok Injunctions. They are respectively represented by Mr Dykes SC (leading Ms Christine Yu) and Ms Gladys Li SC (leading Ms Margaret Ng and Mr Michael Yin). Mr Raymond Chen (as the 3rd defendant) also appeared at the first day of the hearing and asked to be joined as a named defendant to oppose the plaintiffs’ applications[1].

(2) Under the CITIC Tower Action, Ms Wong Yuen Ching has appeared (again after obtaining legal aid) and been joined as the 2nd defendant to oppose the continuation of the CITIC Tower Injunction. She is represented by Mr Manzoni SC (leading Mr Earl Deng).

10. Before I deal with specifically the arguments raised by the parties in these applications, it is important to point out that, in all the three actions, all the opposing defendants have fairly and rightly accepted that the occupations of the concerned areas amount to public nuisance, and none of them argue that a court order (even an ex parte one) need not or should not be complied with.

11. Further, as emphasised by Poon J in his judgment for the ex parte CITIC Tower Injunction[2], the court as an independent institution in determining the present applications is only and strictly to apply the law and to uphold the rule of law. The political views or considerations behind the OCC are entirely irrelevant to the determination.

B. WHETHER THE INJUNCTIONS SHOULD BE CONTINUED

B1. The applicable principles on the grant of an interlocutory injunction

12. The legal principles governing the grant of an interlocutory injunction are well established and not in dispute. As succinctly and helpfully summarised by G Lam J in Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 at paragraph 14, 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.

13. Given that the issues raised in whether the Mongkok Injunctions should be continued are the same, I would first deal with them together before I look at the issues raised in the CITIC Tower Action.

B2. The Mongkok Injunctions

B2.1 Serious issues to be tried – Do the plaintiffs have a proper cause of action

14. As I mentioned above, the plaintiffs for the Mongkok Injunctions brought their claims in public nuisance. As I have also said above, none of the opposing defendants contends that the occupation of the Blocked Area...

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