Mtr Corporation Ltd v Persons Unlawfully And Wilfully Obstructing Or Interfering With The Proper Use And Operation Of The Railway As Defined In The Mass Transit Railway Ordinance (Cap 556) And Others

HCA 1551/2019

[2019] HKCFI 2160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1551 OF 2019

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D E C I S I O N

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Background

1. In the evening of 23 August 2019, on the urgent ex parte application of MTR Corporation Ltd (“MTRCL”), the plaintiff herein, Chow J granted an injunction to prevent unknown persons from committing certain specified acts which may broadly be described as: (i) unlawfully and wilfully obstructing or interfering with the proper use and operation of the plaintiff’s railway system, (ii) damaging any property at any MTR station, and (iii) causing disturbances at any MTR station.

2. Pursuant to the directions given for service, the injunction order has been displayed at conspicuous places in all MTR stations, posted on MTRCL’s website, and published in one Chinese newspaper and one English newspaper in Hong Kong for 3 consecutive days (27‑29 August).

3. As is usual practice, the ex parte injunction was granted up to a return date, which falls on today. By summons issued on 26 August 2019, MTRCL seeks an order continuing the injunction until trial or further order.

4. MTRCL is a company incorporated under the previous Companies Ordinance (Cap 32) which has been granted the franchise under the Mass Transit Railway Ordinance (Cap 556) (“Ordinance”) to operate the Mass Transit Railway (“MTR”) including any extension thereto and the KCRC Railways.

5. The defendants are in this case identified by description and not by name, as is permissible in appropriate circumstances provided that the description is sufficiently certain so as to identify those who are included and those who are not: Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714 at §§73‑74. No person, so far, has come forward identifying himself or herself as a defendant and sought to appear at this hearing as such.

6. On 28 August, a memorandum of notification of an application for legal aid by an individual was filed in this action. It is not known whether that person claims to fall within the description of one of the defendants or seeks to take part in some other capacity and what stance he takes. The filing of the memorandum, however, as expressly provided in s 15(5)(a) of the Legal Aid Ordinance (Cap 91), does not operate to prevent the making of an interlocutory order for an injunction.

7. On 29 August, Mr Simon Durrant filed a summons seeking an order that he be added as an interested party and that the injunction, if not stayed, be varied to include certain orders, inter alia, to prevent the police from taking certain steps in MTR stations. From his affirmation it appears that one of his main concerns was the use of tear gas by the police within MTR stations. I am unable to accede to his application for joinder, for simply as a passenger of the MTR he has no locus to be joined in these proceedings based on established principles under RHC Order 15 r 6; see University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd & Another [2015] 6 HKC 677, §§22‑32. Nor can the injunction he seeks be dealt with herein given that this is MTRCL’s rather than Mr Durrant’s action and the police are not a party. Mr Durrant also stated that there was violence at Yuen Long station on 21 July committed by some white‑shirted men who injured many passengers. As to this, it should be noted that the injunction sought by MTRCL applies to anyone irrespective of the colour of his shirt. It is, as Mr Yu observed on behalf of MTRCL, colour‑blind.

The evidence

8. According to the affirmation evidence placed before the court for the ex parte application and subsequently filed by MTRCL, since 13 June 2019, there have been ongoing protests and repeated incidents of damage to property within “railway premises”,[1] obstruction to railway services and harassment of MTRCL staff. MTRCL states that it had taken a very tolerant approach but, over time, there have been more frequent and serious incidents, many of which were targeted directly at MTRCL and its staff, with no sign of the trend subsiding. The safety of both passengers and MTRCL staff has been increasingly threatened. Reference has in particular been made in the evidence, non‑exhaustively, to the following incidents:

(1) On 21 July, there was an outbreak of violence at Yuen Long station. Train doors to the Tuen Mun‑bound train were obstructed. Physical fights and disputes took place on the concourse and the platform, leading to damage to break‑glass units, ticket gates and roller shutters and the spread of fire retardant chemicals and water in the station.

(2) On 27 July, protesters made use of fire extinguishers and fire hoses inside the station, causing serious damage, and disabled at least one ticket gate in order to give free rides.

(3) On 5 August, incidents of obstruction of train doors took place at numerous stations (such incidents having taken place from time to time since June 2019). In addition, passenger alert devices and emergency plungers, designed for the purpose of enabling passengers to inform MTRCL staff and to stop moving trains in cases of emergency, were improperly activated at many stations. Objects such as pieces of wood, barriers, water bottles, iron rods and a bicycle were found on train tracks. These obstructions and interference eventually led to the suspension of trains on the Airport Express Line, Tung Chung Line, East Rail Line, West Rail Line, Tsuen Wan Line, Kwun Tong Line, Island Line and Tseung Kwan O Line.

(4) In the evening of 11 August, there were confrontations between protesters and the police in Kwai Fong station and Tai Koo station, which resulted in the police entering the stations and firing teargas inside the station (in Kwai Fong) and outside a station exit (in Tai Koo). On the next day, 12 August, at around 9:30 pm, about 100 people gathered outside the Station Control Room of Tai Koo station, and questioned the Corporations Affairs team staff and station staff about MTRCL’s handling of the protests the previous evening. Some of the people became extremely hostile and shouted abusive language at the staff. This incident lasted until about 5 am the next morning.

(5) On 13 August, a crowd of about 100 people surrounded the Station Control Room of Kwai Fong station and questioned MTRCL’s staff about the handling of the protests at Kwai Fong station on 11 August. Again, various members of the crowd became very hostile and shouted abusive words at the staff. There was also body contact as members of the crowd tried to stop the staff from leaving. The crowd refused to leave until the staff agreed to provide a response to their concerns within 6 working days as well as the name and contact number of the two staff members who were speaking to them.

(6) On 20 August, at around 10 pm, having read the written response issued by MTRCL, a crowd gathered at the Station Control Room of Tai Koo station, being dissatisfied that MTRCL did not condemn the police’s enforcement actions during the Tai Koo station protest. Again, abusive language was used at the station staff, and the crowd refused to leave until 4:52 am the next morning. The crowd threatened they would return and gather at Tai Koo station if MTRCL did not provide a response to the further questions they raised.

(7) On 21 August, at around 10 pm, when the police began to take action to disperse the protesters in the areas around Yuen Long, those who were staging a protest within Yuen Long station dismantled station facilities such as newspaper racks and recycling bins to prevent the police from entering the station. They also activated fire extinguishers and fire hoses, spraying fire retardant chemicals and water onto the floor, and defaced many walls inside the station and damaged facilities. They also disabled certain ticket gates in order to give free rides. At around 10:13 pm, the protesters started obstructing train doors from closing. They eventually left at around 11:30 pm.

(8) Also on 21 August, at about 10 pm, a crowd of about 30 people gathered outside the Station Control Room of Kwai Fong station asking to meet the station staff to discuss the response issued by MTRCL on 20 August. In view of the previous experience, MTRCL’s senior management decided that station staff was to avoid confronting the crowd, and so members of the Operating team and Corporations Affairs team stayed inside the Station Control Room to monitor the situation. The crowd repeatedly knocked on the windows, demanded that the staff speak with them, prevented the staff from moving to other areas of the station including the washroom, and aimed laser pointers at the staff members inside the room. This continued until the crowd...