Turbo Top Ltd v Lee Cheuk Yan And Others

HCA 694/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 694 OF 2013

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D E C I S I O N

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The background facts

1. For over two weeks since 17 April 2013, the dock workers at the terminals in Kwai Chung and Tsing Yi operated by Hongkong International Terminals Limited (“HIT”) who are on strike have, together with people supporting them, staged protest activities outside the Cheung Kong Center building (“the building”) in Central. They have set up canopies, tarpaulin shelters and tents and posted up banners and placards there to protest and hold demonstrations. It appears that one of the reasons for them to do so there is that Hutchison Whampoa Limited (“HWL”) has an indirect 27.6% interest in HIT and HWL’s Chairman (Mr K S Li) and Deputy Chairman (Mr Victor Li) have offices in the building (though the offices of HWL itself are in Hutchison House rather than the building).

2. On 24 April, a group of 21 persons evaded the security guards and went inside the building and demonstrated at the reception area on the seventh floor which is occupied by Cheung Kong (Holdings) Limited. On the same day, another group of persons tried to pass through the iron railings to gain access into the building, resulting in injuries to one of the building’s management staff.

3. The plaintiff is an indirect wholly owned subsidiary of HWL and the grantee of Inland Lot No 8887 (“the Lot”) on which the building stands. The Lot includes certain open space around the building.

4. On 25 April, the plaintiff issued the writ of summons in these proceedings and, at about 6 pm, appeared before Pang J (the Duty Judge) on an ex parte (on notice) application for an urgent interlocutory injunction. None of the defendants appeared in court on that occasion. The judge indicated he was not prepared to grant an injunction ex parte unless it was of a limited extent preventing the protestors merely from entering into the building.

5. The plaintiff accordingly amended their application overnight, and appeared before Pang J again on 26 April at 2:30 pm. The defendants were not notified of this hearing. The judge granted the injunction then sought, which restrained the defendants from entering into the building and parading, protesting or demonstrating inside the building.

6. On the same day, the plaintiff issued an inter partes summons seeking an interlocutory injunction until further order to restrain the defendants from, inter alia, parading, protesting or demonstrating and from keeping any tentage, canopies and other temporary structures anywhere on the Lot.

7. On 30 April, the plaintiff took out a summons for leave to amend their inter partes summons, so as to seek in addition a mandatory injunction requiring the defendants forthwith to remove all tents, canopies and similar such temporary structures. The Writ was amended on the same date. As amended, the Writ claims possession of the relevant areas, an injunction preventing protests and demonstrations within the Lot and the installation of temporary structures there, an order for removal of such temporary structures, and damages for trespass and nuisance.

8. Last Friday, 3 May, was the return date of these two summonses. At the beginning of the hearing I granted the amendment sought. The application argued before me was therefore the amended summons for injunction.

9. Mr Westbrook who appears on behalf of the plaintiff confirms that, so far as the plaintiff is aware, the injunction granted by Pang J has not been breached, and that the conditions at the site have to that extent improved since 26 April.

10. The canopies and tents of the defendants are now concentrated in certain areas outside the north entrance of the building, two areas along Queen’s Road Central (one of which apparently lies outside the Lot), and an area on the upper ground floor of the development.

11. According to an affirmation filed by the plaintiff on 2 May, the defendants have continued to use those locations as their “protest base camp” and have carried out the following activities there: fund-raising and distribution of subsidy funds to the striking dockers, assembly and large-scale rallies, press conferences, staying and sleeping in tents overnight, and also puppet shows and family gatherings.

The defendants

12. I should now say a few words about the identity of the defendants. The 1^st defendant is the General Secretary of the Hong Kong Confederation of Trade Unions and a member of the Legislative Council of Hong Kong representing the New Territories West constituency. The 2^nd defendant is the Organising Secretary of the Union of Hong Kong Dockers. The 3^rd defendant is a worker at HIT. The 4^th defendant is an officer of the Union of Hong Kong Dock Workers. The 5^th defendant is an officer of the Hong Kong Confederation of Trade Unions. The 6^th defendant is not a specific individual but named as a group of unidentified persons being “persons forming a group of demonstrators entering or remaining without the consent of the plaintiff at Cheung Kong Center, 2 Queen’s Road Central and/or other persons hindering or preventing access to or egress from Cheung Kong Center and/or the adjacent carparks and open spaces owned by the plaintiff”.

13. The 1^st defendant has appeared before me in person. The 2^nd to 5^th defendants were granted legal aid shortly before the hearing. Mr Gerard McCoy SC and Ms Miranda Li, who were instructed only at about 6 pm on 2 May, appeared on behalf of the 2^nd and 3^rd defendants. Mr Carter Chim appeared on behalf of the 4^th and 5^th defendants. They submitted urgently prepared written skeletons to me on the morning of 3 May and made brief oral submissions at the hearing. No affirmation has been filed on behalf of the defendants.

Interlocutory application

14. This is of course an application for an urgent interlocutory injunction. This is not the occasion for the court to adjudicate finally on the rights and obligations of the parties. The principles applicable in relation to interlocutory injunction are not in dispute. The Court has to see whether there are serious issues to be tried, whether damages would be an adequate remedy for either side, and if damages would not be adequate, 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 I must take into account the interests of the general public as well even though they are not represented before me.

Trespass

15. Mr Westbrook puts on the plaintiff’s case on the basis of trespass and nuisance, but I think it is fair to say that his principal case is trespass, on which I shall focus.

16. Relying on cases such as Incorporated Owners of Fu Fai Court v Henble Ltd, HCA 2844/2003, 8 August 2003 and The Church of Jesus Christ and Latter-Day Saints Hong Kong Ltd v Jessica Park, HCA 1167/2001, 8 November 2001, he submits that an owner of property who complains of a trespass is entitled almost as a matter of course to an injunction to restrain the continuance of the trespass. In particular, Mr Westbrook cites the following passage from the judgment of Deputy Judge Poon (as he then was) in The Church of Jesus Christ and Latter-Day Saints Hong Kong Ltd v Jessica Park, supra, at para 9:

“A landowner whose title was not disputed is prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate. On an interlocutory application, such an injunction should, in the absence of exceptional circumstances, be granted unless the defendant satisfies that court that there was an arguable case that she has a right to do that which the plaintiff alleged to constitute a trespass. Only if such the defendant could show such an arguable case should the court go on to consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy: Patel & others v. WH Smith (Eziot) Ltd & another [1987] 1 WLR 853, English Court of Appeal, followed in Lea Tai Property Development Ltd v. Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193, CA.”

17. That this is so in the ordinary case is not a principle in dispute. But in the passage quoted above, as well as in the judgment of Balcombe LJ in Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853 at 858E relied on in many subsequent cases, the premise is that the title of the landowner is not in issue. In this connection, it is necessary to examine more closely the terms on which the plaintiff holds the land.

18. It is not in dispute in this case that the plaintiff is the owner – or rather – a co-owner of the Lot. The lease of the Lot was granted to the plaintiff...