For Hearing Before the Hon Mr Justice Chow on 28 June 2019 at 10:00 Am

For hearing before the Hon Mr Justice Chow on 28 June 2019 at 10:00 am

HCA 1060/2019

AXA China Region Insurance Company Limited v Persons Unlawfully Occupying or Remaining at 20/F, Tower Two, Times Square, 1 Matheson Street, Causeway Bay, Hong Kong without the Plaintiff’s consent & Ors

SKELETON SUBMISSIONS FOR THE APPLICANT

Introduction

1. This is the return day hearing for the ex parte injunction order granted by M Chan J on 15 June 2019 in favour of AXA (“Injunction Order”) [1-5]1.

2. By an inter partes summons dated 17 June 2019 (“Summons”) [30-32] returnable on 28 June 2019, AXA seeks the continuation of the Injunction Order until further order of the Court.

Background

3. The detailed background to this dispute is set out in AXA’s skeleton submissions dated 15 June 2019 (“Ex Parte Skeleton”), §§7-17 (attached herewith).

4. In gist, the Injunction Order concerns commercial premises located at Times Square, Mira Place and AXA Tower which were used as AXA’s service centres and offices (“Service Centres”). The defendants have been carrying on protests and demonstrations at these Service Centres.

1 References in [#] are to page numbers in the Hearing Bundle

1 5. The Injunction Order restrains the defendants from carrying out the following activities at the Service Centres:

5.1. Unlawfully remaining or occupying the Service Centres without AXA’s consent;

5.2. Obstructing or hindering access to and exit from the Service Centres; and

5.3. Interfering with the use of the Service Centres by AXA, its staff, servants, agents, licensees and lawful visitors: §§1-3 [2-3].

Service

6. Pursuant to the Injunction Order, AXA was permitted to serve court documents (comprising inter alia the Injunction Order, summons, affirmation in support and the writ) on the defendants by (i) making them available for inspection at conspicuous parts of the Service Centres, (ii) posting them on AXA’s website; and (iii) publishing the Injunction Order in an English and a Chinese newspaper, together with a notice that the documents are available for inspection at AXA’s solicitors’ (Clifford Chance) office: §4 [4]

7. AXA has successfully served the documents on the defendants:

7.1. After obtaining a sealed copy of the Injunction Order from the Court on 17 June 2019, AXA has through its solicitors affixed the document at the lift lobbies and doorways at the Service Centres [48, 52, 55].

7.2. On 19 June 2019, AXA made the other court documents available for inspection at the main entrances of the Service Centres [48-49].

7.3. On the same day, AXA also posted a notice of the Injunction Order on its website, and provided links to download the court documents [242].

2 7.4. On 20 June 2019, AXA also advertised the Injunction Order in the Standard (in English) and Sing Tao Daily (in Chinese) [245-246].2

Continuation

8. The Court is respectfully invited to have regard to the Ex Parte Skeleton, which sets out the reasons for which M Chan J was invited to grant the Injunction Order. The same reasons also support the continuation of the injunction.

9. The Court is respectfully invited to grant an order in terms of the Summons.

10. For the avoidance of doubt, the Plaintiff also respectfully asks the Court to continue order for substituted service in the same terms as §§4(a) and (b) of the Injunction Order [4].

26 June 2019

HARRISON MIAO Counsel for the Plaintiff

2 AXA had undertaken to the Court to file the court documents by 18 June 2019, and to effect service within 3 days thereafter. The last of the documents, the Affirmation of Li Sin Man Alice, was filed on 18 June 2019. AXA’s service was within time.

For hearing before the Duty Judge of the High Court, Mimmie Chan J

INTENDED ACTION BY

AXA CHINA REGION INSURANCE COMPANY LIMITED

Introduction

1. This is an ex parte application for urgent injunctive relief to restrain acts of trespass and private nuisance by groups of individuals at AXA’s customer service centres located in Times Square, Mira Place and AXA Tower (Service Centres).

2. AXA is grateful to the Court for hearing this application at short notice.

3. This application is brought ex parte, and on a weekend, because there is an urgent need for an interim injunction to be granted to ensure that the Service Centres can be safely and properly open for business on Monday, 17 June 2019.

4. There have been protests and demonstrations against AXA at the Service Centres, in an organized and concerted manner. The first protest occurred at the Times Square Service Centre (defined below) on Wednesday, 12 June 2019. This later expanded to include protests which took place at all three Service Centres on Thursday and Friday, 13 and 14 June 2019.

5. These are not isolated or one-off incidents, and have caused serious disruption to AXA’s business at the Service Centres. Despite repeated calls to the police for assistance, the protests have continued unabated. These events led AXA to close down the Service Centres for business on Saturday, 15 June 2019 due to concerns over the safety, welfare and convenience of AXA’s staff and customers alike. Unless restained by the Court, there is a clear risk that the wrongful acts will continue to harm the interests of AXA and the visiting public.

The Supporting Papers

6. The Court is provided with an ex parte summons for injunctive relief, supported by an affirmation of Li Sin Man, Alice sworn on behalf of AXA, together with a draft

generally endorsed writ which AXA undertakes to file within the next 2 days. The orders which AXA seeks are set out in a draft order submitted with the papers.

The Plaintiff

7. AXA is an insurance company, and operates the Services Centres to provide services to its customers and policy holders. The Service Centres are normally open for business from Monday to Saturday, except for public holidays.

8. AXA is the lessee and occupant of:

8.1 20/F, Tower Two, Times Square, 1 Matheson Street, Causeway Bay (Times Square Service Centre).

8.2 Units 1101, 1117-118 at 11/F, Mira Place Tower A (formerly known as Miramar Tower), 132 Nathan Road, Tsim Sha Tsui (Mira Tower Service Centre).

8.3 40/F and 42/F, AXA Tower, 100 How Ming Street, Kwun Tong (AXA Tower Service Centre).

9. From the tenancy agreements, AXA is the tenant with respect to the entire floor in relation to 20/F, Tower Two, Times Square and 40/F and 42/F of AXA Tower. AXA is a tenant in relation to Units 1101, 1117-1118 at 11/F, Mira Place Tower.1

The Intended Defendants

10. Due to the nature of the wrongful activities, it is impracticable to identify each individual defendant by name. The intended defendants are therefore groups of

1 The Plaintiff was also granted the right to the entrances, exists, lifts, escalators and those areas in Miramar Tower intended for common use. See tenancy agreement dated 24 May 2017 between Shahan Limited and the Plaintiff exhibited at “LSMA-1” to the Affirmation of Li Sin Man Alice.

individuals described by reference to their conduct. There is one intended defendant for each of the respective Services Centres which have been affected by the protests.

11. In essence, the conduct covered by the description of the defendants is:

11.1 Unlawfully remaining or occupying the relevant floor in the commercial building without the Plaintiff’s consent.

11.2 Obstructing or hindering access to and exit from the relevant floor, and the relevant units therein.

11.3 Interfering with the use of the relevant floor, and the whole of the relevant commercial building, by the Plaintiff, its staff, servants, agents, licensees and lawful visitors.

12. In this regard, the Court has power to grant an injunction against such a defendant provided that the description is sufficiently certain to identify those who are necessarily included and excludes those who are not: see Billion Star Development v Wong Tak Chuen [2012] 2 HKLRD 85 at §54 per Au J; Times Square Limited v Lee Kwun Kit [2018] HKCFI 2296 at §5 per DHCJ Keith Yeung SC.

The Relevant Facts

13. The protests relate to an insurance product distributed by AXA. Some of AXA’s customers have included a fund in their policies which, due to suspected fraudulent activities, has significantly devalued and since gone in liquidation.

14. The protesting activities at the 3 Service Centres can be summarised as follows.

15. For the Times Square Service Centre:

15.1 The protestors first appeared at the premises on 12 June 2019.

15.2 At around 10:30 am on 13 June 2019, around 10 protestors arrived at Times Square. 3 of them stayed at the G/F and started to display banners in protest of AXA.

15.3 The other protestors made their way to the Service Centre and displayed banners showing e.g. “投资安盛保险让我血本无归” (investing in AXA made me lost all my fortune). They also started chanting slogans and complaining about AXA through loudhailers at the lift lobby.

15.4 In response, AXA was forced to close the doors of the Service Centre. Its staff and customers were prevented from entering or exiting the premises; and the customers could only make inquiries and payments with AXA through the door seam at the entrance for the entire day.

15.5 Despite intervention from the building management staff of Times Square and the police, the protestors refused to leave, and only did so after the centre closed for business for that day.

15.6 On 14 June 2019, around 5 protestors emerged at around 10:20 am. They were later joined by a few more.

15.7 Later that day, the protestors began to harrass AXA’s customers and agents – they chanted in protest of AXA with a loudhailer whenever a customer arrived at the service centre; and also prevented agents from entering the office.

15.8 As a result of their actions, AXA was informed that other tenants of Times Square have complained about the disturbance and asked AXA to take action.

16. For the Mira Place Service Centre:

16.1 At around 11am on 13 June 2019, around 10 protestors arrived at the premises and immediately started shouting. Despite intervention from the police officers and building management staff of Mira Place, the protestors remained at the premises.

16.2 Likewise, AXA was forced to lock the door of the Service Centre and handle customers’ inquiries and payments through the door seam. As a result, AXA was only to handle 8 inquiries and a payment that day.

16.3 By around 1 pm, some protestors decided to leave for Kwun Tong, i.e. where the AXA Tower Service Centre was located. 3 protestors remained.

16.4 On 14 June 2019, around 6 protestors arrived at the Service Centre at around 11:50 am. They demanded to talk to AXA’s CEO, and threatened to carry out daily protests at all of AXA’s customer service centres. After more protestors arrived, they began distributing leaflets to AXA’s customers and agents.

16.5 Later, the protestors started to block AXA’s clients from entering or exiting the service centres. While some clients managed to enter the Service Centre through a side door, they were blockaded in the premises and were unable to leave.

16.6 Similar to the Times Square Service Centre, AXA also received complaints from neighbouring tenants about the protesting activities and demands for AXA to take immediate action.

17. For the AXA Centre Service Centre and the agency office on 40/F of AXA Tower:

17.1 At around 2 pm on 13 June 2019, the protestors arrived at AXA Tower.

17.2 On the 40/F, 3 protestors found their way into the agency office. They displayed a banner which stated “诚恳的跟家人道歉，对不起！！！买香港安盛保险，我错了！！！” (Sincere apologies to the family – Sorry!!! Purchased AXA Hong Kong insurance – My Fault!!!). They also started yelling at AXA’s staff and taking video recordings of them.

17.3 Meanwhile, on the 42/F, some protestors sat in front of the Service Centre to block the entrance. They began shouting “AXA is a liar!”. The protesting activities caused customers who had arrived at the Service Centre to turn back.

17.4 On 14 June 2019, 2 protestors arrived at AXA Tower at around 10:50 am. They refused to let anyone into the premises.

17.5 Eventually, around at least 6 protestors gathered at the customer service centre at 42/F; and blocked AXA’s staff and agents from accessing it. They also began

to chant slogans such as “安盛保险，血本无归” (AXA Insurance – Lose All Your Fortune) with a loudhailer.

17.6 AXA was forced to close the door of the Service Centre that day. While it managed to serve around 30 customers through the door seam, the customers also expressed discontent about the treatment.

17.7 AXA was also forced to report to the police. Despite intervention from the police, the protestors had refused to leave until after the Service Centre was close for business.

Relevant Legal Principles

18. The Court will be familiar with the relevant legal principles governing the grant of an interlocutory injunction. There is a helpful summary by G. Lam J at Turbo Top Ltd. v. Lee Cheuk Yan [2013] 3 HKLRD 41 at §14:

“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 injunctions 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.”

19. Where an interlocutory injunction is sought by a landowner to enjoin trespass to his land, the injunction should almost as a matter of course be granted. As DHCJ Poon (as he then was) held in The Church of Jesus Christ of Latter-Day Saints Hong Kong Limited v Stewart J C Park, HCA 1167/2001, 8 November 2001, §9 (cited in Turbo Top, §16):

“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 which the plaintiff alleged to constitute a trespass. Only if such a 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: Petal v W H Smith (Eziot) Limited & Anor [1987], WLR 853, English Court of Appeal, followed in Lea Tai Property Development Limited v Incorporated Owners of Leapoint Industrial Building [1995] HKCA 499; [1996] 1 HKC 193, CA.”

20. A claim in trespass is actionable at the suit of the person in possession of the land, who can claim damages, an injunction, or both. Therefore, a tenant in occupation can sue for trespass: Clerk and Lindsell on Torts, (32 ed.) at §19-10. Accordingly, AXA has the right to sue in trespass because it is a tenant in occupation.

21. Private nuisance refers to the unlawful interference with a person’s use or enjoyment with land. It is significant that in the similar case of Lee Shing Hong Ltd v Leon Ko, HCA 1741/2002, 10 May 2002, the Court granted an injunction covering the entire building in New World Tower even though the protests only took place at the lift lobby of 8/F of New World Tower. This was based on the cause of action in private nuisance. See §§21-25 per DHCJ A Cheung (as he then was).

22. At §25 the Court stated:

“I note that in relation to premises within New World Tower, the Defendants actually have no right to be there unless lawfully invited by occupiers of the premises to go inside. This is a building owned privately and occupied by commercial tenants. Of course the landlord grants a general licence for entry to anyone lawfully invited by the occupiers and tenants of the building to enter the building, yet if a person has no reason to believe that he is invited by anybody to enter the premises, or if he has no reason to believe that he is invited by any occupiers of the building to enter the building for demonstration purpose, he has no right whatsoever to enter the private premises. So in this regard, in balancing the various interests of the parties, I think the Plaintiff has made out a case for extending the injunction to the whole of the building”.

Merits

23. There is a strong case to suggest that the intended Defendants have committed acts of trespass by unlawfully remaining and occupying the areas inside, in the vicinity of, and near the entrances of the Service Centres, and have refused to leave despite requests to do so from the Plaintiff. Those defendants have no right to protest in private premises, and do not enjoy any benefit of a licence by AXA to do so.

24. On the evidence, there is also a strong case in private nuisance. The protestors have blocked access to and exit from the Services Centres, used loudhailers to create a high level of noise and have used banners and displays to adversely affect AXA. The protestors have also harassed AXA’s staff and customers.

Damages Not an Adequate Remedy for the Plaintiff

25. Damages are not an adequate remedy for the Plaintiff. Injunctive relief is required. The disruption caused to AXA’s operations at the Service Centres cannot be readily quantified in monetary terms. Nor can the potential risk to the safety and welfare to AXA’s staff and customers by the protests, or the inconvenience to them.

Balance of Convenience

26. The balance of convenience is clearly in favour of the injunction being granted:

26.1 there has been serious disruption to the normal business operations of the Service Centres which is likely to continue if not restrained by the Court.

26.2 these are not one off or isolated events; the protestors have shown an organized and determined commitment to disrupt and interfere with AXA’s business at the Service Centres at three different locations.

26.3 attempts at seeking police assistance have not caused the protests to stop.

26.4 there are legitimate concerns about the safety and welfare of AXA’s staff and customers at the Service Centres.

26.5 AXA in fact closed the Service Centres on Saturday, 15 June 2019 in view of these concerns, and understandably wishes to resume business on Monday.

26.6 the injunctions do not seek to restrain lawful protests by groups of individuals in public places.

26.7 the rights and interests of AXA’s lawful visitors and customers who will be seriously inconvenienced and harassed by the protestors if not restrained also points towards the grant of the injunctions.

Undertaking as to Damages

27. AXA offers the usual undertaking in damages to cover the situation where the injunction is later decided to have wrongly granted. There should be no question of fortification because AXA is a financially substantial company.

Terms of the Injunction

28. The terms of the injunction seek to prohibit the defendants from:

28.1 occupying or remaining at the various floors in Times Square, Mira Place and AXA Tower at which the Service Centres are located in without the Plaintiff’s consent.

28.2 obstructing or hindering access to and exit from those floors, and the units therein, by lawful users.

28.3 interfering with the use of the premises, and the entire commercial building, by those lawful users; and

28.4 parading, protesting and/or demonstrating within those floors, and the entire commercial building, including by displaying notices, banners, placards and/or posters, or by using loudhailers or any other similar broadcasting devices.

29. The Court will note that the scope of the injunctions pertaining to private nuisance (i.e. interfering with use and protests) relate to not only the floors and premises in question, but the entire commercial building. AXA has a lawful right to use not only its own premises, but only the common parts of the building. This is based on the analysis in Lee Shing Hong which granted an injunction to restrain protests in the whole of the New World Tower building.

Service on the Defendants 30. Given the nature of the intended defendants, it is submitted that ordinary methods of service are impracticable. To ensure proper notice is given, AXA proposes to effect service of court documents through the following methods:

30.1 Affixing a copy at a conspicuous place at the relevant premises.

30.2 Publication once in newspapers in a Chinese and English newspaper of general circulation in Hong Kong.

30.3 Posting them on AXA’s website.

31. Similar methods of service were adopted in Times Square Limited v Lee Kwun Kit [2018] HKCFI 2296 with respect to the unidentifiable buskers in that case.

Conclusion

32. For all the above reasons, the Court is respectfully invited to make an order in terms of the draft order submitted.

Dated 15 June 2019.

JIN PAO, S.C.

HARRISON MIAO

Counsel for the Intended Plaintiff

For hearing before the Duty Judge of the High Court, Mimmie Chan J

INTENDED ACTION BY

AXA CHINA REGION INSURANCE COMPANY LIMITED

1. Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85

2. Times Square Limited v Lee Kwun Kit [2018] HKCFI 2216

3. Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41

4. The Church of Jesus Christ of Latter-Day Saints Hong Kong Limited v Stewart JC Park, HCA 1167/2001, 8 November 2001

5. Clerk and Lindsell on Torts, 22 ed., §19-10

6. Lee Shing Hong Ltd v Leon Ko, HCA 1741/2002, 10 May 2002

Dated 15 June 2019.

JIN PAO, S.C.

HARRISON MIAO

Counsel for the Intended Plaintiff

85 Billion Star Development Ltd and Wong Tak Chuen ———— (Court of First Instance) (High Court Action No 708 of 2011) ————

Thomas Au J in Chambers 19 December 2011, 10 February 2012

Land law — easement — unlawful interference with right of way and trespass land — person entitled to right of way could bring proceedings to claim injunction and damages for substantial interference with such right — injunction would be prima face granted and would be denied only if special circumstances existed — damage not prerequisite to grant of injunction — injunction granted Civil procedure — injunction — court order made against unknown individuals — court had power to grant injunction against defendant described not by name but by reference to description of his conduct provided sufficiently certain to identify only those necessarily included and excluded those who were not 土地法 — 地役權 — 非法干擾通行權和侵佔土地 — 有通行權的權利人可因這權利受到實質性干擾而提出法律程序申索強制令及損害賠償 — 只當有特殊情況存在時才作出表面授予和拒絕強制令的決定 — 損害賠償並非授予強制令的先決條件 — 授予強制令

民事訴訟程序 — 強制令 — 法院頒令予身份不明人仕 — 當足夠清晰地辨別那些必要地包括在內和豁除那些不在內時，法院有權按照行為而非名稱的描述授予針對被告人的強制令 P was the developer and registered owner of two lots of land (the Property) adjacent to a large well-known residential estate (the Estate). The only direct vehicular access to the Property was via a private road within the Estate (the Access Road), owned by B, the developer and now manager of the Estate. P’s predecessor-in-title acquired a right of way over the Access Road under an assignment entered into with B in 1983 (the Assignment) by which it acquired the Property. B also issued 2 letters confirming that P had the right to use the Access Road. P contended that it was entitled to a right of way either by express grant, by necessity (as the Property was completely landlocked) or by licence. In 2010 the Building Authority

85 2012/4/12—17:33 86 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD approved building plans for a 20-storey residential building on the Property (the Project). The Project was met with strong opposition from some residents of the Estate. A protest group was formed by these residents, and D1-6 were its members or were affiliated with it. On divers dates in March and April 2011, D1–6, as well as many other unidentified persons (referred to in the Writ of Summons as D7, amongst whom D8–10 were later identified and joined as parties) had repeatedly blocked the Access Road and/or trespassed the Property to prevent vehicular access to and from the Property and P from commencing construction works on the Project. P contended that such activities constituted unlawful acts of trespass over the Property and nuisance, and sought an injunction against all defendants. P applied for interlocutory injunction and/or summary judgment on the claim for a permanent injunction against the defendants. Prior to the hearing of these applications, D1–D6 conceded that final judgment on the permanent injunction be entered against them. Of the remaining defendants, P sought an interlocutory injunction against D7 (defendant by description) and D10 (who failed to file an acknowledgement of service), and permanent injunction against D8–D9. D8–D10 were political figures who were not residents of the Estate but claimed to be exercising their right to demonstrate and protest. The issues were: (a) whether P had established a right to an injunction; (b) whether an injunction could be granted against D7, a defendant by description; and (c) whether P was entitled to an injunction against D8–D10, the latter being allegedly only present on some occasions to offer their support to the protesters.

Held, granting final injunction against D8–D9, and interlocutory injunction against D7 and D10, that: (1) P was prima facie entitled to an injunction to restrain the unlawful interference with its right of way and the trespass. First, a person in possession of the land could bring a suit for unjustifiable intrusion by another on his land to claim damages or an injunction or both. Likewise, a person entitled to a right of way could bring proceedings to claim an injunction and damages for substantial interference with such right. Further, the injunction (permanent or interlocutory) would be prima facie granted and would be denied only if special circumstances existed. Finally, damage suffered was not a prerequisite to the grant of an injunction in such a case, nor was the triviality of the interference alone sufficient reason to justify a departure from the general rule of granting injunctions. In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future) the court was concerned with the protection of a property right, which, if not protected

85 2012/4/12—17:33 CFI Billion Star Development Ltd v Wong Tak Chuen 87

by an adequate remedy, would become diminished (Shelfer v City of London Electric Lighting Co (No 1) [1895] 1 Ch 287, West v Sharp (1999) 79 P & CR 327, Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v Henble Ltd (unrep., HCA 2844/2003, [2003] HKEC 1254) applied). (See paras.38–39.) (2) The court had the power to grant an injunction against a defendant described not by name but by reference to his conduct provided that the description was sufficiently certain to identify only those who were necessarily included and excluded those who were not. The description of D7 was sufficiently certain and not wider than necessary (Jackson v Bubela [1972] 5 WWR 80, Tony Blain Pty Ltd v Splain [1994] FSR 497, Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633, Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2004] Env LR 9 applied). (See paras.53–55.) (3) The presence of the defendants on the Access Road was not in exercise of their constitutional rights of freedom of speech, freedom of assembly, procession and demonstration. Those rights stopped, so far as physical or geographical limits were concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter. This case was purely a matter of a contest between the parties on their respective private rights over the use of private properties (the Property and the Access Road). (HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371 applied). (See para.61.) (4) Given the continuous and repeated nature of the acts of trespass and nuisance and the large group of unidentified individuals who participated in those acts, there was a real risk that unless restrained, those unlawful acts would be repeated, and since none of the defences raised in the present case were arguable or bona fide defences, and the balance of convenience was in favour of granting an injunction, an interlocutory injunction would be granted against D7. (See paras.43-48, 57-64.) (5) In the case of D8 to D10, the evidence showed that they had evinced an intention that they would well carry out the wrongful acts to interfere with P’s right for reasonable use of the Access Road. Accordingly a quia timet injunction would be granted against them. (See para.69.)

Application This was an application by the plaintiff for summary judgment and an interlocutory injunction to restrain the defendants from committing acts of trespass on the property and interfering with the plaintiff’s use, occupation and enjoyment of the property and its

85 2012/4/12—17:33 88 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD right of way and/or causing nuisance to the plaintiff in respect of its use, occupation and enjoyment of the property. The facts are set out in the judgment. Mr Benjamin Yu SC, Ms Eva Sit and Mr Elliot Fung, instructed by Mayer Brown JSM for the plaintiff. Ho, Tse, Wai and Partners, for the first to sixth defendants, excused from attendance. The seventh defendant was not represented and did not appear. Mr Martin Lee SC, Ms Jocelyn Leung and Mr Richard Yip, instructed by JCC Cheung and Co, for the eighth defendant. Mr Leung Kwok Hung, the ninth defendant, in person. Ms Mo Man Ching Claudia, the tenth defendant, in person.

Legislation mentioned in the judgment Civil Procedure Rules 1998 [United Kingdom] Pt.3 r.3.10 Rules of the High Court (Cap.4A, Sub.Leg.) O.1A rr.1(a)–(c), 2, O.2 r.1, O.6 r.1

Cases cited in the judgment Alvis v Harrison (1991) 62 P & CR 10 Barnett v French [1981] 1 WLR 848, (1981) 72 Cr App R 272, [1981] RTR 173 Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch), [2003] 1 WLR 1633, [2003] 3 All ER 736 Friern Barnet Urban District Council v Adams [1927] 2 Ch 25 Golden Eagle Liberia Ltd v International Organisation of Masters, International Longshoremen’s Association [1974] 5 WWR 49 HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, [2010] 4 HKC 235 Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2003] EWHC 1738 (Ch), [2004] Env LR 9 Ho Mei Ling, Re [2011] 6 HKC 1 Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v Henble Ltd (unrep., HCA 2844/2003, [2003] HKEC 1254) Jackson v Bubela [1972] 5 WWR 80, (1972) 28 DLR (3d) 500 Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853, [1987] 2 All ER 569 Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149, [1953] 2 WLR 58, [1953] 1 All ER 179 Shelfer v City of London Electric Lighting Co (No 1) [1895] 1 Ch 287 Tony Blain Pty Ltd v Splain [1994] FSR 497, [1993] 3 NZLR 185

85 2012/4/12—17:33 Billion Star Development Ltd v Wong Tak Chuen CFI Thomas Au J 89

West v Sharp (1999) 79 P & CR 327

Other materials mentioned in the judgment Clerk & Lindsell on Torts (20th ed., 2010), para.19-10, p.1276 para.20-06, p.1278 para.20-09, Gray and Gray, Elements of Land Law (5th ed., 2009) paras.5.2.21–5.2.22 Grubb, Law of Tort (2002) para.8.3 Megarry and Wade, Law of Real Property (7th ed., 2008) p.1294 para.30-006 Spry, Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (8th ed., 2009) pp.371–381, 384–386

Thomas Au J

A. Introduction 1. The plaintiff is a developer and the registered owner of the property (the Property) known as the Remaining Portion of New Kowloon Marine Lot No 25 (NKML 25 RP) and Section B of New Kowloon Marine Lot No 25. The Property is situated within a large well-known residential estate, known as Mei Foo Sun Chuen (Mei Foo). 2. This is the hearing of the plaintiff’s two summonses,1 one for summary judgment (the O.14 Summons) and the other for interlocutory orders (the Injunction Summons), for injunction to restrain the defendants from committing acts of trespass on the Property and interfering with the plaintiff’s use, occupation and enjoyment of the Property and its right of way and/or causing nuisance to the plaintiff in respect of its use, occupation and enjoyment of the Property. 3. The background leading to this action and the summonses can be briefly summarised as follows. 4. The plaintiff intends and is to develop a 20-storey residential building on the Property (the Project). In October 2010, the Building Authority approved the building plans for the Project. 5. The only direct vehicular access to the Property is via the private road within Mei Foo known as Broadway South-West bound (the Access Road). The private roads, including the Access Road, are owned by Broadway-Nassau Investments Ltd (Broadway-Nassau), the developer of Mei Foo. The plaintiff says under the relevant assignment (in acquiring the Property), it has a right of way over and along all private roads within Mei Foo, including the Access Road. Further, Broadway-Nassau has (the plaintiff further says)

1 Respectively dated 21 November and 20 April 2011.

85 2012/4/12—17:33 90 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD since September 2010 expressly confirmed that it consents to the plaintiff having reasonable use of the private roads, including the Access Road, as passageway for all purposes connected with the proper use of the Property. 6. However, the proposed development of the Property has been met with strong opposition from some residents of Mei Foo, as the proposed new building is to be built in front of their residential blocks at Stage VIII of Mei Foo. 7. To further their opposition, these residents have formed a protest group (the Protest Group) called the “Working Group Against the Development of Screen Buildings in Mei Foo Sun Chuen” (反對興建美孚新邨屏風樓工作小組) to, amongst others, organise and take actions to oppose the Project. 8. The first to sixth defendants are residents of Mei Foo and are apparently members of the Protest Group. 9. It is the plaintiff’s case that, on divers dates in March and April 2011, the first to sixth defendants together with many other unidentified persons (now joined as the seventh defendant) had repeatedly blocked the Access Road and/or trespassed the Property to stop or prevent vehicular access to and from the Property so as to prevent the plaintiff (through its contractors) from commencing the Project’s construction works. These activities amount to (argues the plaintiff) unlawful acts of trespass over the Property and obstruction of the plaintiff’s right of way to prevent it from lawfully developing the Property. 10. As a result, on 20 April 2011, the plaintiff took out the present action and the Injunction Summons to seek an interlocutory injunction against the first to seventh defendants. The seventh defendant is described by the plaintiff generally so as to refer to all those unidentified individuals who the plaintiff says have been trespassing the Property or interfering with the plaintiff’s right of way over the private roads in Mei Foo. 11. The injunction sought is 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, authorising 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

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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.

12. The Injunction Summons first went before Deputy Judge Queeny Au-Yeung on 29 April 2011, where the plaintiff sought an interim injunction in the same terms. The learned Deputy Judge refused to grant it, principally on the basis that the defendants should be given time to consider the application and file their evidence in opposition. The plaintiff’s appeal against the learned Deputy Judge’s decision was later dismissed by the Court of Appeal on 30 June 2011.2 13. At the same time, at that first hearing, Mr Tsang, Mr Leung and Ms Mo3 appeared in Court and identified themselves to be the seventh defendant. As a result, they were subsequently joined by the plaintiff respectively as the eighth, ninth and tenth defendant. 14. Pleadings and evidence in opposition had since then be filed by most of the defendants. 15. In relation to the first to sixth defendants, the fourth defendant was legally represented, and his defence was drafted by counsel and he has filed an opposition affirmation. The rest of these defendants (acting in person) also filed their defences and evidence. But effectively, they principally relied on the evidence and defence filed by the fourth defendant. 16. The eighth defendant is also legally represented and has instructed leading counsel to represent him at the first hearing before the Deputy Judge, before the Court of Appeal and this hearing. He has filed a defence and an affidavit to oppose the application. 17. The ninth and tenth defendants act in person and appear at this hearing to oppose the applications. The ninth defendant has

2 See Reasons for Judgment (unrep., HCMP 1042/2011, Cheung CJHC and Chu JA, 15 July 2011). 3 They are all well-known political figures in Hong Kong.

85 2012/4/12—17:33 92 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD filed a “defence” entitled “答辯大綱” but not any opposing evidence. The tenth defendant has not filed an acknowledgement of service but has put in an affirmation in opposition. She has also provided to this Court a skeleton submission to oppose the application. 18. The seventh defendant is unrepresented and has not taken any steps in the proceedings or appeared at this hearing.

B. The first to sixth defendants have consented to the injunction when it comes to this hearing 19. In their defences and the evidence filed, the first to sixth defendants raised effectively the following main grounds of defences:

(1) The alleged illegality of the building plans as approved by the Buildings Department (the Illegality Defence). (2) The residents of Mei Foo Stage VIII have acquired a right of way over part of the Property by prescription (the Prescriptive Right of Way Defence). (3) The plaintiff has no right of way as claimed on the proper construction of the relevant assignment in 1983 (the Construction Defence). (4) Their presence on the Access Road was in exercise of their constitutional rights, namely freedom of speech, freedom of assembly, procession and demonstration (the Constitutional Rights Defence).

20. As mentioned above, on 21 November 2011, the plaintiff further took out the O.14 Summons against the first to sixth, eighth and ninth defendants, seeking final judgment on the injunction sought. 21. However, the matter took a dramatic turn when it came close to the present hearing of the Injunction Summons and the O.14 Summons. 22. Effectively, by 6 December 2011, the first and sixth defendants confirmed that they were prepared to accept and abide by the terms of the Injunction Summons and the O.14 Summons. In other words, the first to sixth defendants consented to final judgment for an injunction in the terms as sought by the plaintiff. As a result, the Court on 13 December 2011 made a consent order to that effect on the basis of a consent Summons. By a further consent order dated 12 January 2012, the first to sixth defendants also consented to pay the plaintiff’s costs of the O.14 Summons and the Injunction Summons.

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C. The remaining applications against the seventh to tenth defendants 23. Thus, at this hearing, what remains for the present purposes are only the applications against the seventh to tenth defendants, in which, the plaintiff asks for:

(1) An interlocutory injunction under the Injunction Summons against the seventh defendant. (2) Final injunctive (alternatively interlocutory) relief against the eighth and ninth defendants (under the O.14 Summons and the Injunction Summons), and only interlocutory orders against the tenth defendant (since she has not filed an acknowledgement of service).

24. I will now deal with these applications.

C1. The plaintiff’s right over the Property and the private roads and case for injunction 25. There is and can be no dispute that the plaintiff is the owner of the Property.4 26. Insofar as its right to use the private roads (including the Access Road) within Mei Foo is concerned, the plaintiff’s case (as summarised in its skeleton) is as follows. 27. First, the plaintiff has a right of way over these private roads under the 1983 Assignment, which was expressed as follows: … ASSIGNS and CONFIRMS unto the Purchaser ALL THAT the estate right title and interest of the Vendor of and in ALL THAT piece or parcel of ground situate at Kowloon aforesaid and registered in the Land Office as THE REMAINING PORTION OF NEW KOWLOON MARINE LOT NO 25 TOGETHER also with all fixtures, machinery, equipment, furnishing and other articles of personal property now owned and at any time prior to the date hereof acquired by the Vendor and attached to, situated in or up, or used in connection with the use, operation and occupation of the premises hereby assigned, and all the appurtenances thereto AND TOGETHER with full right and liberty for the Purchaser its servants and licensees in common with the Vendor the Confirmor and their respective servants and licensees with or without vehicles at all times and for all purposes connected with the proper use of the premises hereby assigned to pass

4 The plaintiff further relies on the following assignments: Assignment dated 15 April 1983 (1983 Assignment) from Broadway-Nassau to Mobil Oil Hong Kong Ltd, Assignment dated 5 December 2002 from Mobil Oil Hong Kong Ltd to Exxonmobil Hong Kong Ltd, Assignment dated 11 February 2009 from Exxonmobil Hong Kong Ltd to plaintiff, and Assignment dated 5 March 2009 from Broadway-Nassau to plaintiff.

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and repass to and from the premises over and along all the private roads of the estate of Mei Foo Sun Chuen … (Emphasis added.) 28. The plaintiff submits that this express right of way is granted in wide and general terms (as it is for “for all purposes connected with the proper use of the premises”). In these circumstances, the owner of the dominant tenement is entitled to exercise that right not only for the purpose of the use to which the tenement is then being put but also for any other lawful purposes to which it may be put thereafter.5 Accordingly, the fact that the Property was used at the time of grant as a LPG plant (as contended initially by the first to the sixth defendants) would not have confined the right of way to such use. Accessing the Property in order to carry out lawful construction works thereon is, further says the plaintiff, plainly a proper use of the Property. 29. In any event, the plaintiff relies on the letters dated 20 August and 18 September 2010 respectively addressed to the architects and the plaintiff by Broadway-Nassau to show that the existence and scope of plaintiff’s right of way have been further expressly confirmed by Broadway-Nassau, the legal and beneficial owner of the Access Road.6 30. Second, the plaintiff contends that it has in any event a licence to use the Access Road for the purpose of construction. Anyone who prevents or impedes the plaintiff or its contractor from using the Access Road to enter upon the Property would be interfering with plaintiff’s proper use occupation and enjoyment of the Property, and would be committing a nuisance.7 31. Third, the plaintiff has a right of way over, amongst others, the Access Road pursuant to:

(1) Assignment M/N 468981 dated 1 August 1964, conferring a right of way over NKML28 RP on the owners of NKML2 Section A; and (2) Conditions of Exchange No 10051, whereby the owners of NKML2 Section A surrendered the same in exchange for NKML25 subject to and with the benefit of the aforesaid right of way. (3) NKML2 RP then became, inter alia, NKML5087 on which the Access Road is built. NKML25 was then divided into (amongst others) the Property. 5 See Megarry and Wade, The Law of Real Property (7th ed., 2008) p.1294 para.30-006; Alvis v Harrison (1991) 62 P & CR 10, pp.14–16 (Lord Jauncey). 6 Broadway-Nassau confirmed in these letters that the plaintiff (including its servants and licensees) has full right and liberty with or without vehicles at all times and for all purposes connected with the proper use of the Property to pass and repass to and from Property over and along all the private roads in Mei Foo. 7 Clerk & Lindsell on Torts (20th ed., 2010), p.1276 para.20-06, p.1278 para.20-09. 8 New Kowloon Marine Lot No 2.

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32. Fourth, if for any reason the plaintiff does not have an express grant of right of way, the plaintiff argues that when the Property was assigned to the plaintiff or the plaintiff’s predecessor-in-title, it must have been implied that the owner of the Property shall have a right of way over the Access Road by necessity. This is so because the Court will imply an easement on this ground if it can be established that without the provision of the desired easement, it becomes impossible to make use of the dominant tenement.9 The “landlocked close” is said to be the classic case of necessity. There is no evidence in the present case to rebut the plaintiff’s case that the Property is and has since the grant in 1983 been completely landlocked. Thus, without the right of access (vehicular and otherwise) on the Access Road, it would not be possible to make use of the Property at all. 33. I agree with the plaintiff’s above submissions. 34. In my view, the evidence and legal principles as submitted above support (and I also so conclude) that the plaintiff has acquired a right of way or alternatively a licence over the use of the private roads in Mei Foo, including Access Road, for the purposes of gaining access to and the proper use of the Property, which includes the carrying out of construction works thereon for, inter alia, the purpose of the Project. 35. It must also be noted that none of the above contentions are disputed or challenged at the present hearing. Although some of the defences raised initially by the first to sixth defendants sought to contest some of them, these defences are no longer pursued now as these defendants have consented to a final injunction. The eighth to tenth defendants have not sought to rely on these defences nor raised any other arguments against the plaintiff’s above contentions. 36. Having satisfied that the plaintiff has acquired the right to 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 the 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 the plaintiff’s workers and vehicles from entering and carrying out works thereon. These wrongful activities are well recorded and documented, and not seriously disputed.10 37. The interference with the plaintiff’s right of way is thus substantial, for the plaintiff’s only vehicular access to the Property

9 Gray and Gray, Elements of Land Law (5th ed., 2009) paras.5.2.21–5.2.22. 10 See Chan Wing’s first affirmation paras.7–14; Fong Yen Yin’s first affirmation, paras.8–30; Law Wing Cheung’s second affirmation, paras.5–11; Chan Wing’s second affirmation, paras.6–17; Fong Yen Yin’s second affirmation, paras.5–8, 12–15; Chan Wing’s third affirmation, paras.4–14.

85 2012/4/12—17:33 96 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD via the Access Road has been effectively completely blocked. It is not disputed, and in any event the evidence shows that, the intention behind these acts is to prevent the plaintiff from constructing the Project on the Property. That these individuals intend to continue what they have been doing unless restrained by the court is also clear on the evidence.11 38. In these circumstances, I am satisfied that the following principles (as submitted by the plaintiff and not disputed at the hearing) shows that the plaintiff is prima facie entitled to an injunction to restrain the unlawful interference with its right of way and the trespass:

(1) A person in possession of the land can bring a suit for unjustifiable intrusion by another on his land to claim damages or an injunction or both.12 The plaintiff is the registered owner of the Property and has the necessary locus standi to bring the present action. (2) Likewise, a person entitled to a right of way can bring proceedings to claim an injunction and damages for substantial inference of such right.13 (3) The injunction (permanent or interlocutory) will be prima facie granted and will be denied only if special circumstances exist (which may include circumstances that damages are an adequate remedy for the wrong, in that where the expected injury to land is small and the grant of an injunction would cause disproportionate hardship to the defendant).14 (4) However, damage suffered is not a prerequisite to the grant of an injunction in such a case, nor is the triviality of the interference alone sufficient reason to justify a departure from the general rule of granting injunctions. In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future), the court is concerned with the protection of a property right, which, if not protected by an adequate remedy, becomes diminished.15

11 See Chan Wing second affirmation, para.18 on the exchange between protestors and the plaintiff’s contractors on 3 March 2011, and the fact (as summarised at paras.44–47 of this Judgment) that up to 9 November 2011, the plaintiff was still prevented (by masked protestors) on the Access Road from entering the Property. 12 See Clerk & Lindsell on Torts, para.19-10. 13 West v Sharp (1999) 79 P & CR 327, 332–333. 14 See Grubb, The Law of Tort, para.8.3; Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149, pp.181 and 194; Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853, 858E–H, 859D–F, 862D–E; Spry, Equitable Remedies (8th ed., 2009) pp.384–386. 15 See Shelfer v City of London Electric Lighting Co (No 1) [1895] 1 Ch 287; Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v Henble Ltd (unrep., HCA 2844/2003, [2003] HKEC 1254), paras.13–17 (Deputy Judge Anthony To).

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39. I therefore accept that the plaintiff has demonstrated that it is prima facie entitled to an injunction as sought. 40. I will now deal with specifically the applications against the seventh defendant and the eighth to tenth defendants to see whether the injunctive relief sought should be granted in light of their respective circumstances.

C2. The application against the seventh defendant 41. Specific directions have been given for substituted service on the seventh defendant of all related court documents, including the notices of hearing, by way of fixing them securely at a conspicuous place at the entrance of the Property abutting the Access Road. 42. The plaintiff has filed various affirmations of service to show that these have been done. I accept that proper service of these proceedings and the application, together with the notice of this hearing, has been effected on the seventh defendant. 43. I am further satisfied that there is sufficient evidence to show that there is a large number of unidentified individuals who have interfered with the plaintiff’s right of way over the Access Road and/or trespassed the Property. Such evidence has been summarised by the plaintiff in its skeleton and is not disputed for the present purposes. For convenience, I repeat it as below. 44. Since March 2011, every time when the workers and vehicles of the plaintiff’s contractor attempted to access and enter the Property to commence foundation works, they were repeatedly prevented from so doing by a large group of individuals of the Protest Group. The Protest Group organised these individuals into shifts to monitor the Access Road and the Property, so that whenever there was an attempted entry they could and did quickly mobilise themselves into a human barricade to block the Access Road. Some even resorted to lying on the ground or sitting underneath construction vehicles or equipments to create obstructions. Evidence also shows that in some instances, they also trespassed onto the Property. Amongst those who participated in these incidents were the first to sixth defendants, whom the plaintiff was able to identify.16 45. On 3 April 2011, as part of the campaign organised by the Protest Group to stop the plaintiff from entering the Property to commence works, some 500 individuals obstructed the Access Road by sitting and lying on it to protest against the proposed development on the Property. The eighth to tenth defendants confirm that they were present on that day to support the Protest Group’s campaign. 46. On 20 April 2011, the plaintiff issued the present proceedings to seek injunctive relief on the grounds of trespass and 16 Chan Wing’s first affirmation, para.13.

85 2012/4/12—17:33 98 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD nuisance. Since there were many individuals in the first to sixth defendants’ position whom the plaintiff was unable to identify, the seventh defendant was also made a party. The Injunction Summons was also issued on the same day. 47. After issuance of proceedings:

(1) On 25 April 2011, some 100 individuals identified themselves to the press at a rally as the seventh defendant. Some of them wore masks to avoid being identified. (2) On the return day of the Injunction Summons on 29 April 2011, over 100 persons turned up in court claiming to be the seventh defendant, but after the learned Deputy Judge explained to them the consequences of so claiming (including the possibility of being joined as parties and costs consequences), only the eighth to tenth defendants came forth to identify themselves as the seventh defendant. (3) When the plaintiff’s contractor made further attempts to enter the Property on 18 and 19 May 2011, it was again blocked by a group of individuals, many of whom wore masks to avoid being identified. (4) Likewise, when the plaintiff’s contractor tried to enter the Property again on 9 November 2011, it was stopped by a group of individuals with their faces covered. (5) Tents and a barrier have been erected and manned by the Protest Group to obstruct the entrance to the Property since the commencement of these proceedings.

48. In light of the continuous and repeated nature of these activities as summarised above (which were carried out even after the issue of these proceedings and the Injunction Summons), I accept that the plaintiff has also demonstrated that there is a real risk that these activities may be repeated or continued if not restrained. 49. However, a doubt has been raised as to whether it is permissible to “name” the seventh defendant by way of a general description as the plaintiff has done in the present case. The question appears to arise as O.6 r.1 of the Rules of the High Court (Cap.4A, Sub.Leg.) provides that every writ must be in Form No 1, and Form No 1 provides: “TO THE DEFENDANT (name)…”. In England, there was earlier authority to suggest that, given this requirement, a plaintiff must issue a writ against a defendant with a name.17 50. This difficulty appears to have been in some way “tackled” in the past in England by issuing a writ against a defendant with a fictitious name “John Doe” or “Richard Doe”, where the real name

17 Friern Barnet Urban District Council v Adams [1927] 2 Ch 25, 30–32.

85 2012/4/12—17:33 Billion Star Development Ltd v Wong Tak Chuen CFI Thomas Au J 99 was unknown or could not be identified.18 This practice was also explained by the British Columbia Court of Appeal in Jackson v Bubela19 as one sufficiently certain to identify the defendant (such as a negligent driver) by reference to the allegations made in the writ, albeit his real name was unknown. 51. Moreover, in some other common law jurisdictions, it has been permitted to “name” a defendant by sufficiently clear and certain description against, for example, picket and persons infringing another’s intellectual property rights.20 In Tony Blain Pty Ltd v Splain, the second defendant was sued as “All persons who sell unlicensed … merchandise at or about the … stadium … on [date] who are served with this statement of claim”. This was accepted by the New Zealand Court (in refusing to follow Friern Barnet Urban District Council v Adams) as permissible and an ex parte injunction order was granted. Anderson J, in granting the order, explains at pp.499–500 that, where it is plain that persons are infringing proprietary interests which the law recognises, the law should, if reasonably can, provide a remedy (ubi jus ibi remedium), and that the fact that persons cannot be identified at this stage of the proceeding is no bar to relief against persons who may be identified at a relevant time. The learned Judge emphasises that “it is not the name but the identity and identification of infringing persons which is relevant. The identity may not be immediately established but persons infringing will be identified by their act of infringement”. 52. The English Court has recently reviewed and considered these authorities in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd 21. In that case, the claimant was the publisher of the well-known series of children’s books “Harry Potter”. Several copies of an unpublished book in that series were removed from the claimant without authority and were offered for sale by an unidentified person or persons. The claimant obtained an interlocutory injunction against, amongst others, “the person or persons” who had made those offers to prevent them from disclosing any part of the book. In seeking to continue the injunction, the Court had to deal with the question as to whether it was permissible to join a party by description rather than by name and whether it was permissible to grant an injunction against such a person. After reviewing these authorities at paras.5–14, Sir Andrew Morritt V-C answered these questions in the affirmative and granted the

18 Barnett v French [1981] 1 WLR 848, 853D–H, where the Court of Appeal endorsed the long recognised use of the fictitious name of “John Doe” to name an unidentified defendant in civil proceedings. 19 [1972] 5 WWR 80, 82–83. 20 See Golden Eagle Liberia Ltd v International Organisation of Masters, International Longshoremen’s Association [1974] 5 WWR 49, 52–53 (British Columbia); Tony Blain Pty Ltd v Splain [1994] FSR 497, 499–500 (New Zealand). 21 [2003] 1 WLR 1633.

85 2012/4/12—17:33 100 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD application. He explained the reasons at paras.15–21 which, for the present purposes, can be summarised as follows:

(1) After the introduction of CPR in England, and in particular by reference to the overriding objectives incorporated therein, and the fact that the relevant rule required a defendant “should” be named instead of must be, it would not be incompatible to construe r.3.10 (which confers on the court a general power of dispensation where there has been a procedural error and provides that such error does not invalidate any step taken in the proceedings) with a conclusion that the joinder of a defendant by description rather than by name alone is impermissible. This is so as the overriding objective and the obligations cast on the court are inconsistent with an undue reliance on form over substance. (2) As such, provided the description used is sufficiently certain to identify those who are included and those who are not, the principles explained under Golden Eagle Liberia Ltd v International Organisation of Masters, International Longshoremen's Association and Tony Blain Pty Ltd v Splain would be equally applicable, and it does not matter whether the description may apply to no one or to more than one person.

53. In my view, the above reasoning of Sir Andrew Morritt V-C is equally applicable in Hong Kong under our present rules. The underlying objectives and obligations now introduced by our CJR and cast upon this Court, in particular under O.1A rr.1(a)–(c) and 2 of the Rules of the High Court, are equally inconsistent with an undue reliance on form over substance. Further, our O.2 r.1 (as with r.3.10 under the CPR) also provides that a failure to comply with the requirement of the rules as to, inter alia, “form” and in any other respect shall be treated as an irregularity and shall not nullify the proceedings, any step taken in it or any judgment or order therein. Thus, it would be equally incompatible to construe O.2 r.1 with a conclusion that the joinder of a defendant by description rather than by name is for that reason alone impermissible. In relation to this, I further respectfully adopt and follow the observations in Jackson v Bubela and Tony Blain Pty Ltd v Splain summarised above. 54. I therefore accept the plaintiff’s submissions that the Court has power to grant an injunction against a defendant described not by name but by reference to his conduct provided that the description is sufficiently certain to identify only those who are necessarily included and exclude those who are not.22

22 See also Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2004] Env LR 9, paras.6–8 (Sir Andrew Morritt V-C).

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55. The question in relation to the seventh defendant is thus whether the description thereof is sufficiently certain and not wider than necessary. 56. I think it is. Given (a) the different and changing nature and kinds of activities that these unidentified persons have been carrying out to infringe the plaintiff’s right over the Property and the use of the Access Road, (b) the potentially large number of people involved, and (c) that they may well be wearing masks and other accessories to hide their identity, I am satisfied that the said description is sufficiently clear and certain to identify those people who are carrying out such infringing activities, but to exclude anyone who may only be exercising their rights (if any) over the use of the Access Road without interfering or intending to interfere with the plaintiff’s use of the Access Road. Although the evidence so far shows that only the Access Road had been blocked from time to time to prevent the plaintiff’s and its contractor’s access to the Property, I believe it is necessary to extend the injunction to cover the other private roads within Mei Foo. This is so given that, if the injunction were only to be restricted to cover the Access Road, for all practical purposes, it may be too easy to get around it by the seventh defendant by blocking the other private roads of Mei Foo to prevent access to the Access Road. 57. As the seventh defendant is not present in this hearing, I think it is only fair to also at this stage briefly consider the merits of the four defences initially raised by the first to sixth defendants to see if they may afford the seventh defendant any potential arguable defences to the application for injunction. 58. In relation to the Illegality Defence, I see no merits in this ground: this has effectively been rejected by Johnson Lam J under HCAL 51/2011,23 where the learned Judge refused leave for the applicant (also a Mei Foo resident) to bring a judicial review against the Building Authority’s approval of the Project’s building plans on similar grounds as advanced under this defence. 59. For the Prescriptive Right of Way Defence, I also agree with the plaintiff’s submissions that there are no merits in it for the present purposes as:

(1) The undisputed evidence put forward by the plaintiff was that the area on which the alleged prescriptive right of way subsists would not be built upon.24 Moreover, access of residents from one side of the Property (next to Stage VIII) to the other side (Lai Chi Kok Park) is and will not be affected since they are and remain able to access through the Access Road or the pedestrian walkways.

23 See Re Ho Mei Ling [2011] 6 HKC 1. 24 See Howse’s affirmation, paras.15–19.

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(2) In any event, I am not satisfied that the evidence put forward by the first to sixth defendants so far shows that it is at least arguable that they (or other residents generally) have acquired the right of way by prescription as argued:

(a) The evidence (consisting of some aerial photographs and graphic representation in the Mei Foo sales brochure), which seeks to show that there was open space around the former LPG plant on NKML25 RP, does not per se support this had actually been used as a passage as of right to give rise to a prescriptive right of way. (b) The fourth, fifth and sixth defendants have said in their respective opposing affirmation that the residents have continually used part of the Property as a passageway since 1978. But taking these to the highest is insufficient to support an arguable case that either (i) these individuals have acquired a prescriptive right of way, since they only moved into Mei Foo in 1996 and 2008 respectively, or (ii) “the residents” generally have acquired any right of way.25

(3) Thus, the evidence does not support a bona fide defence that the seventh defendant (if seeking to rely on the same) is entitled to block the Access Road or trespass the Property to prevent the plaintiff’s access to the Property to carry out the construction works for the Project.

60. As to the Construction Defence, I would reject it for the same reasons set out in paras.26–35 above. 61. For the Constitutional Rights Defence, I would similarly reject it as it does not raise any arguable defence in the present circumstances:

(1) As said by Andrew Cheung J (as he then was) in HKSAR v Au Kwok Kuen ,26 the right of peaceful assembly and the right to freedom of expression stopped, so far as physical or geographical limits were concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter. (2) The Property and the Access Road (and the other access roads within Mei Foo) are private properties. In my view, this case 25 See also Patel v WH Smith (Eziot) Ltd, p.860C–D, where it was said that if there are two equally possible explanations for the existence of the usage, one which involves a legal origin and the other tolerance or licence by the servient owner, then exercise of that usage as of right is not established. 26 [2010] 3 HKLRD 371, paras.31–41 and 52–53.

85 2012/4/12—17:33 Billion Star Development Ltd v Wong Tak Chuen CFI Thomas Au J 103

is purely a matter of a contest between the parties on their respective private rights over the use of these private properties. It has nothing to do with these constitutional rights. (3) The mere fact that if any of the seventh defendant were invited by the residents or owners in Mei Foo to join the rally and thus use the Access Road makes no difference. The extent and scope of their rights to use these access roads, as invitees or guests, cannot be greater than the private rights enjoyed by their hosts. And I have already said above that the first to sixth defendants’ acts of preventing the plaintiff to have reasonable use of the Access Road for the purposes of carrying out construction works at the Property are wrongful.

62. For these reasons, those defences initially raised by the first to sixth defendants do not afford the seventh defendant any arguable or bona fide defences against the plaintiff’s application for interlocutory injunction. 63. Further and in any event, if I have to consider the question of balance of convenience, I am also of the view that, damages are unlikely to be sufficient remedy for the plaintiff if the injunction is wrongly not granted for interference with the plaintiff’s property rights. See the principles set out in para.38 above. Alternatively, the construction of the Project would be delayed and the loss to be suffered by the plaintiff is either difficult to quantify or, even if quantifiable, would be of such a large and significant sum which is unlikely to be recoverable against these unidentified tortfeasors. 64. I would therefore exercise my discretion and grant the injunction as sought against the seventh defendant.

C3. The applications against the eighth to tenth defendants 65. The eighth to tenth defendants raise effectively two grounds of opposition to the application for injunction (whether final or interlocutory against them). 66. Firstly, they say the plaintiff has failed to show that they had done anything to or intended to infringe its right of way over the Access Road. The evidence (say these defendants) only shows that they were present at the rally held by the Protest Group on 3 April 2011, which was a Sunday.27 There were no works that were attempted to be carried out on the Property by the plaintiff’s workers or contractors on that day. As such, there is simply no question that they had ever prevented or obstructed the plaintiff (or its contractor) the use of the Access Road. They had also not trespassed the Property. 27 The tenth defendant also accepts in her opposing affirmation that she participated in another rally organised by the Protest Group on 25 April 2011, which was the Easter Monday, and thus also a public holiday.

85 2012/4/12—17:33 104 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD

67. Secondly, they were in any event only exercising their constitutional right of freedom of speech and assembly. These paramount rights should and could not be undermined. 68. I am not persuaded by these grounds of opposition. My reasons are as follows. 69. For the first ground:

(1) Mr Yu SC for the plaintiff submits (which is not disputed) that the Court will grant a quia timet injunction where it can be shown that a defendant threatens to carry out the wrongful acts that the injunction seeks to restrain.28 (2) In relation to showing whether there is such a threat, it has also been said that “one of the most important indications of the defendant’s intentions is ordinarily found in his own statements and actions”. Further, for this purpose, even if the defendant has not threatened to perform particular acts that would, if they took place, be wrongful, it may be of importance in the circumstances that he has stated that it is within his rights to do so.29 (3) In the present case, it is true that the evidence does not show that the eighth to tenth defendants had carried out any acts that had infringed the plaintiff’s right over the use of the Access Road. But I accept Mr Yu SC’s submissions that the eighth to tenth defendants have evinced an intention that they would well carry out such wrongful acts to interfere with the plaintiff’s right for reasonable use of the Access Road in light of the following:

(a) They have identified themselves to be the seventh defendant, the description of which is clear to refer to those who have infringed or are to infringe the plaintiff’s right over the Property or its right of way over the Access Road. Thus, by their own conduct or statements, they have shown that they have had such an intention or threatened to carry out the wrongful acts. (b) This is further underlined by the fact that they have not stated in their opposition affirmations that they did not and do not intend to carry out these wrongful acts. All they are saying was only that they did not do so on 3 April 2011. They have however indicated clearly that they supported and participated in the activities organised by the Protest Group. (c) Further, they repeatedly emphasised and reinstated in their affirmations and at the hearing that it was within

28 See Spry, Equitable Remedies, pp.371–381. 29 Ibid., pp.380–381.

85 2012/4/12—17:33 Billion Star Development Ltd v Wong Tak Chuen CFI Thomas Au J 105

their constitutional rights to participate and support these demonstrations and rallies organised the Protest Group over the Access Road. At the same time, the overwhelming evidence filed for the present purposes shows that (as I have accepted above) these rallies did have the effect of interfering with the plaintiff’s right to use the Access Road. Thus, by asserting a right to do so, they have further by their conduct and statements shown that, if not restrained, there is a real risk that they would carry out such wrongful acts in the future.

(4) Mr Martin Lee SC for the eighth defendant, when pressed by the Court as to why the eighth defendant had voluntarily identified himself to be the seventh defendant (where the descriptions are clearly referring to persons related to the infringing acts), said in his submissions that it might be that, in so identifying himself, the eighth defendant had misunderstood the descriptions and made a mistake. With respect, I cannot accept this explanation. First, whether he had made a mistake or was labouring under a misunderstanding in identifying himself to be the seventh defendant is a matter of fact (and thus evidence), but the eighth defendant (despite having ample opportunity to do so) has not said so in his opposing affirmation. Thus, there is simply no evidence to support the suggested misunderstanding or mistake. Second, when identifying himself to be the seventh defendant at the hearing in April 2011, the eighth defendant was legally represented with leading counsel. Unless there are good reasons or evidence to show otherwise (and there is none), it is beyond me as to how he could have allegedly misunderstood the seventh defendant’s descriptions. (5) In the circumstances, I am satisfied that it has been shown on the evidence that there is at least a real risk that, if not restrained, the eighth to tenth defendants may carry out the infringing acts in the future.

70. As to the second ground on the constitutional right of freedom of expression and assembly, I would reject it for the same reasons I have set out at para.61 above. 71. Thus, for all the above reasons, I do not accept any of the eighth to tenth defendants’ grounds of opposition. 72. They have failed to raise any arguable defence to the O.14 Summons and the Injunction Summons. I would therefore grant a final injunction against the eighth and ninth defendants, and an interlocutory injunction in the same terms against the tenth defendant.

85 2012/4/12—17:33 106 HONG KONG LAW REPORTS & DIGEST [2012] 2 HKLRD

D. Conclusion 73. The plaintiff is successful in its applications against the seventh to tenth defendants. There will be an interlocutory injunction in the terms of the Injunction Summons against the seventh and tenth defendants, and a final injunction in the terms of the O.14 Summons against the eighth and ninth defendants. The interlocutory injunction is of course subject to the plaintiff’s usual undertaking as to damages. 74. I further make an order nisi that:

(1) In relation to the applications against the eighth and ninth defendants, costs of the O.14 Summons and the Injunction Summons be to the plaintiff with certificate for two counsel; (2) In relation to the applications against the seventh and tenth defendants, costs of the Injunction Summons be to the plaintiff with certificate for two counsel.

75. These costs are to be taxed if not agreed. Unless there is an application to vary the same by Summons, the costs order nisi shall be made absolute 14 days from the date of this judgment.

Reported by Sarah Cheng

85 2012/4/12—17:33

A A HCA 2244/2018 [2018] HKCFI 2216 B B IN THE HIGH COURT OF THE C HONG KONG SPECIAL ADMINISTRATIVE REGION C COURT OF FIRST INSTANCE D D ACTION NO 2244 OF 2018

E ______E BETWEEN F F TIMES SQUARE LIMITED Plaintiff

G G and

H H LEE KWUN KIT (李冠傑) 1st Defendant

I trading as JL MUSIC I Persons unlawfully occupying or 2nd Defendants J remaining at the Open Piazza of Times Square, J 1 Matheson Street, Causeway Bay by busking or K any other form of street performance, or persons K who cause, place or leave obstruction(s) at the L Open Piazza in connection with the L carrying out of such performances M M ______N N Before: Deputy High Court Judge Keith Yeung SC in Chambers O Date of Hearing: 28 September 2018 O

P Date of Decision: 28 September 2018 P

Q Q DECISION R R

S The hearing S

T 1. This is the first hearing of the inter partes summons dated T 24 September 2018 (“Summons”) taken out by the plaintiff. U U

V V

- 2 - A A

B 2. By the Summons, the plaintiff is seeking: B

C (a) an order for substituted service of the Writ of Summons, the C Summons and all subsequent orders against the 2nd defendants; D D (b) an interlocutory injunction against the 1st and 2nd defendants E restraining them (whether by themselves, servants or agents) E from: F F (i) occupying or remaining at the Open Piazza 1 of the G Times Square by busking or any other form of street G performance; H H (ii) causing, placing or leaving obstruction(s) at the Open I Piazza in connection with the carrying out of any such I performances; J J (iii) disturbing, interrupting or otherwise obstructing any K servant, employee or person employed by the plaintiff K in the proper execution of their duties. L L

3. In so far as the application against the 1st defendant is concerned, M M the parties have reached consensus on a set of directions, to the effect that N upon the 1st defendant’s undertaking not to do the acts set out in (i) to (iii) N

O above, the application be adjourned to a date to be fixed for full arguments, O with directions on the filing of further evidence in the meantime. I give P those directions. The only modification I have suggested is that those act P

Q caught by undertaking (iii) should be confined to those acts in connection Q with undertakings (i) and (ii). Parties agree to that. R R

S S

T T 1 the exact boundary of which can be ascertained by a plan attached to the Deed of Dedication dated 30 July 1992 registered in the Land Office by Memorial No 5380714 U U

V V

- 3 - A A Substituted service in respect of the 2nd defendants B B 4. The Court has power to grant an injunction against a defendant C described not by name, but by reference to his conduct provided that the C

D description is sufficiently certain to identify those who are necessarily D included and excludes those who are not: see Billion Star Development Ltd E E v Wong Tak Chuen [2012] 2 HKLRD 85, at paragraph 54 per Au J, and

F Bloomsbury Publishing plc v News Group Ltd [2003] 1 WLR 1633 at F paragraphs 15 – 22 per Sir Andrew Morritt VC. G G 5. I have considered the description of the 2nd defendants. On H H the Writ they are described as “Persons unlawfully occupying or remaining I at the Open Piazza of Times Square, 1 Matheson Street, Causeway Bay I by busking or any other form of street performance, or persons who cause, J J place or leave obstruction(s) at the Open Piazza in connection with the K carrying out of such performances”. I am satisfied that the description K is sufficiently certain. Given the fact that the 2nd defendants is a class of L L persons not described by names, it is obvious that it is impracticable to M serve any process or court document on them in the manner prescribed by M

the Rules of the High Court. I am also satisfied that the proposed means of N N substituted service (namely (1) in so far as the Writ and the Order permitting O substituted service are concerned, by (a) fixing the same securely at a O conspicuous place at the Open Piazza, (b) by advertisement in one local P P Chinese newspaper and one local English newspaper; and (c) by posting the Q same advertisements on the Website of Times Square; (2) in so far as this Q Summons and all subsequent orders are concerned (including those which R R the 1st defendant is required to serve upon the 2nd defendants), by (a) fixing S those court documents securely at a conspicuous place at the Open Piazza; S and (b) posting notices of the same on the website of Times Square) are T T appropriate and adequate. I grant the Order sought as amended. U U

V V

- 4 - A A 6. I however make clear that this Order only permits substituted B B service of the Writ, the Summons and all subsequent documents which nd C require service. No injunction against the 2 defendants has been granted. C That remains to be considered as and when any application for one is made D D (if one is made).

E E

F F

G G

H H (Keith Yeung SC) Deputy High Court Judge I I

J Mr Jin Pao SC, instructed by Mayer Brown, for the plaintiff J Mr Ernest Ng and Ms Tira Mok Yin Ting, instructed by Bond Ng, K for the 1st defendant K

nd L The 2 defendants was not represented and did not appear L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V [2013] 3 HKLRD 41 Turbo Top Ltd and Lee Cheuk Yan ———— (Court of First Instance) (High Court Action No 694 of 2013) ————

Godfrey Lam J in Chambers 3, 6 May 2013

Civil procedure — interlocutory injunction — trespass — restraining defendants from protesting and keeping temporary structures in public open space — restraining defendants from entry to building — balance of convenience — right of assembly and demonstration — whether activities unlawful under ss.4(23), 4(28) and 4A depended on whether obstructed open space without lawful authority or excuse — whether s.46 applied to provide lawful basis — Summary Offences Ordinance (Cap.228) ss.4(23), 4(28), 4A — Trade Unions Ordinance (Cap.332) s.46 Land law — trespass — injunction — plaintiff co-owner of land — arguable that under DMC, plaintiff and co-owner granted licence to public to use open space and plaintiff to have possession of open space subject to public’s rights under licence — if so, licence could not be unilaterally revoked [Summary Offences Ordinance (Cap.228) ss.4(23), 4(28), 4A; Trade Unions Ordinance (Cap.332) s.46]

民事訴訟程序 — 非正審強制令 — 侵佔 — 限制被告人於公共開放空間抗議和設置臨時搭建的構築物 — 限制被告人進入建築物 — 適宜性的平衡 — 集會和示威的權利 — 根據第4(23)，4(28)及4A條活動是否非法取決於是否無合法權限或辯解而阻礙開放空間 — 第46條是否適用於提供合法依據 — 《簡易程序治罪條例》(第228章) 第4(23)，4(28)及4A條 — 《職工會條例》(第332章) 第46條

土地法 — 侵佔 — 強制令 — 原告人為土地的共同擁有人 — 於DMC下，原告人和共同擁有人授予許可給公眾使用開放空間以及原告人對開放空間的管有權乃取決於許可下公眾的權利均值得商榷 — 若然，許可則不能單方面地撤銷 [《簡易程序治罪條例》(第228章) 第4(23), 4(28), 4A條; 《職工會條例》(第332章) 第46條]

41 2013/9/5—18:13 42 HONG KONG LAW REPORTS & DIGEST [2013] 3 HKLRD 41

D1–5 were trade union officers, dockers or dock workers’ union officers, while D6 was a group of unidentified persons “forming a group of demonstrators”. From 17 April 2013, striking dock workers employed by HIT and their supporters had erected tents, canopies, tarpaulin shelters, banners and placards and held protests outside the Cheung Kong (CK) Center (the Building), as HWL, a subsidiary of CK, had an indirect 27.6% interest in HIT; and the office of HWL’s Chairman was in the Building. By Particulars and Conditions of Exchange, P, an indirect subsidiary of HWL, was the grantee of land housing the Building and certain open space around it (the Lot). Special Condition (13) designated the “Public Open Space” within the Lot for the use of the public “for all lawful purposes”, not P’s exclusive enjoyment. Special Condition (16) provided that such obligation under Special Condition 13 arose only as a matter of contract between P and the Government and that neither party intended to dedicate or consent to any dedication of the Open Space (and other specified areas) to the public a right of passage. Since assigning certain undivided shares in the Lot to the Financial Secretary Incorporated (FIC), P and the FIC had been co-owners of the Lot. Under the deed of mutual covenant between P and the FIC (DMC), P enjoyed exclusive possession of the Open Space, but subject to the “easements, rights and privileges” granted to the public “for all lawful purposes freely”. On 24 April 2013, a group of 21 protesting students entered the Building and protested in the reception area on the seventh floor which was occupied by CK. On 26 April 2013, P obtained an ex parte injunction restraining Ds from entering and demonstrating inside the Building. P subsequently sought an urgent interlocutory injunction to restrain Ds from protesting and keeping any tentage, canopies and other temporary structures on the Lot and a mandatory injunction requiring Ds to remove all such objects. P claimed that Ds’ activities in the Open Space were unlawful and amounted to trespass. Ds submitted the ex parte injunction should be discharged.

Held, granting P’s application in part and dismissing the remainder, that: (1) In an ordinary case, a landowner whose title was not disputed was prima facie entitled to an injunction to restrain trespass on his land (Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853, Church of Jesus Christ of Latter-Day Saints Hong Kong Ltd v Park (unrep., HCA 1167/2001, [2001] HKEC 1456), Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v Henble Ltd (unrep., HCA 2844/2003, [2003] HKEC 1254) followed). (See para.16.) (2) However, here, an injunction should not as a matter of course be issued even at an interlocutory stage. It was arguable that

41 2013/9/5—18:13 [2013] 3 HKLRD 41 Turbo Top Ltd v Lee Cheuk Yan 43

under the DMC, P and FIC as co-owners had granted the public a licence to use the Open Space and further agreed that as between themselves, P was to have possession of the Open Space subject to the public’s rights under the licence. If so, the licence to occupy the co-owned property on a non-exclusive basis could not be unilaterally revoked by either tenant in common. Special Condition (16) was intended to prevent a public right of way from arising by dedication and acceptance, which would potentially be a permanent property right binding on both the Government and P. It did not mean the public had no licence at all to use the Open Space (Chin Lan Hong v Cheung Poh Choo [2005] 3 HKLRD 811 applied; Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853 distinguished). (See paras.26–29, 31.) (3) While there was no evidence of the position of the Government as landlord or the FIC as co-owner of the Lot as to Ds’ activities, there was nothing to suggest they had resiled from the position as stated in Special Condition (13) and the DMC and thus it was at least arguable that the Open Space was by licence open to all members of the public at all times throughout the term of the grant “for all lawful purposes”. The meaning in the Conditions of Exchange and DMC of “all lawful purposes” concerning the Open Space was not restricted to passing and repassing. Whether Ds’ activities were unlawful under ss.4(23), 4(28) and 4A of the Summary Offences Ordinance (Cap.228), as contended, depended primarily on whether they were obstructing the Open Space and if so, whether without lawful authority or excuse; and in turn the extent and limits of Ds’ rights of assembly and demonstration. (See paras.32–33, 35–42.) (4) Given that the demonstrations had arisen in the course of a trade dispute, there was some force to Ds’ submission that s.46 of the Trade Unions Ordinance (Cap.332) prima facie applied, giving them a lawful basis for their actions on the Lot. The statute protected peaceful picketing at or near a place where “a person” worked or carried on business. It did not require that the place must be where the pickets worked or carried on business. The dockers were at or near the Building, where HWL’s Chairman worked or carried on business, to peacefully communicate to him their working conditions and their demand for an improvement therein. On this basis, the location of the demonstrations had particular significance to Ds, as they might lose the protection under s.46 if they moved elsewhere (LL Ferguson Ltd v O'Gorman [1937] IR 620, Broome v Director of Public Prosecutions [1974] AC 587 applied). (See paras.48–50, 56.)

41 2013/9/5—18:13 44 HONG KONG LAW REPORTS & DIGEST [2013] 3 HKLRD 41

(5) As for P’s argument that the dockers were protesting at the wrong place and against the wrong person, that HWL was not the dockers’ direct employer did not preclude s.46 from applying to picketing against HWL or outside the Building. As for the proviso in s.46, there was no suggestion that Ds’ activities were likely to intimidate anyone, to obstruct the approach to or egress from the Building or the Lot, or to lead to a breach of the peace. (See paras.51–55.) (6) It was significant that the demonstrations had been peaceful since 26 April 2013 and before then, mostly so. On P’s own evidence, the disruptive conduct inside the Building on 24 April 2013 was caused by persons other than strikers and trade unionists. In addition, the police had issued notices of no objection to intended public meetings at the Building, which showed they had tolerated the demonstrations and assemblies from a public order perspective. (See paras.58–60.) (7) There was no obstruction of ingress to and egress from the Building and of pedestrian or vehicular traffic. While there was bound to be some inconvenience to the public, there was no suggestion they could not go about their lawful business because of Ds. Pending the trial of the matter, the loss of space within the Open Space was one that the public could reasonably be expected to tolerate. (See paras.61, 63.) (8) However, in respect of a narrow and often busy public walkway along Queen’s Road Central near the steps to the upper ground floor, taking into account the public’s interest, the balance of convenience favoured a limited interim injunction to clear Ds’ tents and canopies and to prevent temporary structures there. Subject to removing these obstructions, the Court would not grant an interlocutory injunction to prevent any demonstrations within the Lot and outside the Building or temporary objects there, nor a mandatory injunction for their removal (City of London Corp v Samede [2012] 2 All ER 1039 (CA) considered). (See paras.62, 69.) (9) P was entitled to the continued protection of the ex parte injunction denying D1–6 entry to the Building until trial. Substantial inconvenience or even personal injury might result if confrontations were permitted to occur within the Building. P could, given the 24 April 2013 incident, legitimately fear that some of the protesters, of which D1–5 were members, might try again to gain entry. Further, the Building was the private property of and within P’s exclusive possession and the public had no right over it (Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714 applied). (See paras.71–74.)

41 2013/9/5—18:13 [2013] 3 HKLRD 41 Turbo Top Ltd v Lee Cheuk Yan 45

Application This was an application by the plaintiff to continue an ex parte injunction granted by Derek Pang J against the first to sixth defendants restraining them from entering and protesting or demonstrating inside its parent company’s building; and seeking an interlocutory injunction to restrain the defendants from protesting and keeping any tentage, canopies and other temporary structures on the site and a mandatory injunction requiring Ds to remove all such objects. The facts are set out in the judgment. [Editor's note: On 6 May 2013, the 40-day strike ended after 90% of striking dockers voted to accept a 9.8% pay rise.] Mr Simon Westbrook SC and Ms Catrina Lam, instructed by Woo, Kwan, Lee & Lo, for the plaintiff. Mr Lee Cheuk Yan, 1st defendant, in person. Mr Gerard McCoy SC and Ms Miranda Li, instructed by Ho Tse Wai, Philip Li & Partners assigned by the Director of Legal Aid, for the 2nd and 3rd defendants. Mr Carter Chim, instructed by Ho Tse Wai, Philip Li & Partners, for the 4th and 5th defendants. The 6th defendant was not represented and did not appear.

Legislation mentioned in the judgment Basic Law of the Hong Kong Special Administrative Region art.27 Conspiracy and Protection of Property Act 1875 [UK] s.7 Conveyancing and Property Ordinance (Cap.219) s.26 Fire Services (Fire Hazard Abatement) Regulation (Cap.95F, Sub.Leg.) ss.14, 15 Industrial Relations Act 1971 [UK] s.134 Industrial Relations Act 1990 [Ireland] s.11(1) Interpretation and General Clauses Ordinance (Cap.1) s.3 Occupational Safety and Health Regulation (Cap.509A, Sub.Leg.) s.9 Public Order Ordinance (Cap.245) ss.11, 11(1), 17(A)(1)(b) Summary Offences Ordinance (Cap.228) ss.2, 4(23), 4(28), 4A Trade Disputes Act 1906 [UK] s.2 Trade Union and Labour Relations (Consolidation) Act 1992 [UK] s.220 Trade Union and Labour Relations Act 1974 [UK] s.15 Trade Unions Ordinance (Cap.332) s.46

Cases cited in the judgment Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714 Broome v Director of Public Prosecutions [1974] AC 587, [1974] 2 WLR 58, [1974] 1 All ER 314, [1974] ICR 84

41 2013/9/5—18:13 46 HONG KONG LAW REPORTS & DIGEST [2013] 3 HKLRD 41

Chin Lan Hong v Cheung Poh Choo [2005] 3 HKLRD 811, [2005] 3 HKC 225 Church of Jesus Christ of Latter-Day Saints Hong Kong Ltd v Park (unrep., HCA 1167/2001, [2001] HKEC 1456) City of London Corp v Samede [2012] EWCA Civ 160, [2012] 2 All ER 1039, [2012] PTSR 1624 City of London Corp v Samede [2012] EWHC 34 (QB) Dublin City Council v Technical Engineering & Electrical Union [2010] 4 IR 667 Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v Henble Ltd (unrep., HCA 2844/2003, [2003] HKEC 1254) LL Ferguson Ltd v O’Gorman [1937] IR 620 Mayor of London v Hall [2010] EWCA Civ 817, [2011] 1 WLR 504 Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853, [1987] 2 All ER 569 Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556, [2013] 2 HKC 1 Yeung May Wan v HKSAR (2005) 8 HKCFAR 137, [2005] 2 HKLRD 212

Other material mentioned in the judgment Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, arts.10, 11

Godfrey Lam J

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 Ltd (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 Ltd (HWL) has an indirect 27.6% interest in HIT and HWL’s Chairman (Mr KS 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) Ltd. On the same day, another group of persons tried to pass through

41 2013/9/5—18:13 Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 Godfrey Lam J 47 the iron railings to gain access to 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 Derek 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 protesters merely from entering 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 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 an 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.

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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 1st 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 2nd defendant is the Organising Secretary of the Union of Hong Kong Dockers. The 3rd defendant is a worker at HIT. The 4th defendant is an officer of the Union of Hong Kong Dock Workers. The 5th defendant is an officer of the Hong Kong Confederation of Trade Unions. The 6th 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 1st defendant has appeared before me in person. The 2nd and 3rd 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 2nd and 3rd defendants. Mr Carter Chim appeared on behalf of the 4th and 5th 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

41 2013/9/5—18:13 Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 Godfrey Lam J 49 account the interests of the general public as well even though they are not represented before me.

Trespass 15. Mr Westbrook puts 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, Tin Hau Temple Road v Henble Ltd (unrep., HCA 2844/2003, [2003] HKEC 1254, 8 August 2003), and Church of Jesus Christ of Latter-Day Saints Hong Kong Ltd v Park (unrep., HCA 1167/2001, [2001] HKEC 1456, 8 Nov 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 Jeremy Poon (as he then was) in Church of Jesus Christ of Latter-Day Saints Hong Kong Ltd v Park, [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 Leapont 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 WH Smith (Eziot) Ltd [1987] 1 WLR 853, 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 by Particulars and Conditions of Exchange No 12416 dated 4 November 1996. In December 2007, the Lot was notionally divided into 205,908 undivided shares, of which the

41 2013/9/5—18:13 50 HONG KONG LAW REPORTS & DIGEST [2013] 3 HKLRD 41 plaintiff assigned 975 shares to the Financial Secretary Incorporated, as there is government accommodation on the Lot (including a post office and public lavatories). The plaintiff and the Financial Secretary Incorporated have since been co-owners of the Lot. 19. The right of the plaintiff to control the relevant parts of the Lot is very much in issue in this action. The activities of the defendants that the plaintiff seeks to have enjoined have been carried on in those parts of the Lot that fall within what is referred to in the Conditions of Exchange as “Public Open Space” (which I shall simply call “Open Space”). (There is also a relevant area along Queen’s Road Central outside the car park entrance to Cheung Kong Center which appears to be outside the Lot or in the Government’s possession.) 20. Special Condition (13) of the Conditions of Exchange makes provisions for such Public Open Space. The following clauses of that Special Condition are relevant.

(13) (a) The Grantee shall within 72 months from the date of this Agreement at his own expense and in accordance with the plans and programme to be approved by the Director as part of the Landscaping Proposals referred to in Special Condition No. (22) hereof and with such materials, at such location, level and design to be approved by the Director lay, form, provide, construct, surface, illuminate, develop and landscape a public open space with a net total area (excluding any circulation area and public drop-off area) of not less than 5,200 square metres or such other area as the Director may approve in writing (hereinafter referred to as “the Public Open Space”) with such landscaping, structures, lightings, plantings and weather protection measures as the Director shall approve. (b) In the event of the non-fulfilment of the Grantee’s obligations under sub-clause (a) of this Special Condition, the Government may carry out all or any of the works therein specified at the cost of the Grantee who shall pay to the Government on demand a sum equal to the cost thereof, such sum to be determined by the Director whose determination shall be final and shall be binding upon the Grantee. (c) The Grantee shall be responsible for the maintenance and management of the Public Open Space provided in accordance with sub-clause (a)

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or sub-clause (b) of this Special Condition and shall observe and comply with the following conditions:

(i) The Public Open Space shall be opened to all members of the public for all lawful purposes freely and without payment of any nature at all times except that with the prior written approval of the Director of Urban Services, the Public Open Space or part thereof may be temporarily closed for maintenance or such other purposes as shall be approved by the Director of Urban Services. (ii) The Public Open Space shall at all times be maintained and managed by the Grantee at his own expense in all respects to the satisfaction of the Director of Urban Services.

21. It is clearly contemplated under the Conditions of Exchange that the Open Space is for the use of the public, and not an area to be exclusively enjoyed by the plaintiff. 22. Mr Westbrook, however, relies on Special Condition (16)(a) to submit that Special Condition (13) is merely a contractual provision between the plaintiff and the Government and is not enforceable by any member of the public since the public are not a party to the contract. That clause reads as follows:

(16)(a) It is expressly agreed, declared and provided that the obligations on the part of the Grantee under Special Condition Nos. … 13(c)(i) hereof arise only as a matter of contract between the Grantee and the Government and that neither the Grantee nor the Government intends to dedicate nor consents to any dedication of the areas referred to in the said Special Conditions to the public for a right of passage.

23. It follows, Mr Westbrook argues, that the duties of the plaintiff in connection with the Open Space are obligations that arise purely as a matter of contract between the plaintiff and the Government, that the Open Space fully remains the private property of the plaintiff vis-à-vis anyone else, and that the relevant provisions

41 2013/9/5—18:13 52 HONG KONG LAW REPORTS & DIGEST [2013] 3 HKLRD 41 in the Conditions of Exchange provide no defence at all to an action for trespass. 24. That seems to me to be too simplistic a view of the position. The plaintiff took the grant subject to, inter alia, Special Condition (13). It is arguable that the lessee is bound to grant and must be taken to have granted a licence to the public to use the Open Space, and that without the consent of the landlord, this licence cannot be revoked without committing a breach of the lease. This is not simply some jus tertii which is irrelevant to an action for trespass. It is the basis upon which numerous members of the public come upon the Open Space every day. 25. Moreover, the Lot is, as stated above, co-owned by the plaintiff and the Financial Secretary Incorporated. As between themselves, the Deed of Mutual Covenant dated 5 December 2007 (DMC) allocates exclusive possession in respect of the Open Space to the plaintiff (see Cl.1 of Sub-section A of Section II),1 but this is subject to the DMC. Clause (1) of Sub-section B of Section IV (headed “Easements Rights Privileges to which the Owners are Subject”) suggests that such possession is subject to the “easements, rights and privileges” granted to the public as specified in Cl.(3)(d) of Sub-section A of Section IV, which is in the following terms: The Open Space shall at all times throughout the term of the Grant be open to all members of the public for all lawful purposes freely and without payment of any nature except that with the prior written approval of the Director of Food and Environmental Hygiene, the Open Space or part thereof may be temporarily closed for maintenance or such other purposes as shall be approved by the Director of Food and Environmental Hygiene. 26. It seems to me quite arguable on the basis of the DMC that the plaintiff and the Financial Secretary Incorporated have as co-owners granted a licence to the public to use the Open Space. They have further agreed that as between themselves the plaintiff is to have possession of the Open Space (until the assignment to the Financial Secretary Incorporated of the undivided shares attributable to the Open Space). Such possession is however subject to the rights of the public under the licence.

1 Special Condition (13)(d) of the Conditions of Exchange stipulates that the grantee shall upon notice assign the undivided shares of and in the Open Space (subsequently specified in the Deed of Mutual Covenant to be 5,065 shares) to the Financial Secretary Incorporated. After such assignment, however, the plaintiff shall not have such possession: see definition of “Government Accommodation” in Section I of the DMC. One of the consequences of the plaintiff’s retention of the 5,065 shares is that it, as opposed to the Financial Secretary Incorporated, is responsible for the expenses of the maintenance and management of the Open Space: see Special Condition (13)(e) of the Conditions of Exchange and cl.(8)(i) of Sub-section A of Section VI of the Deed of Mutual Covenant.

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27. If so, this licence cannot be unilaterally revoked by either one of the co-owners. It has been held by the Court of Appeal in Hong Kong that a licence granted by one tenant in common to occupy the co-owned property on a non-exclusive basis cannot be terminated by another tenant in common without his consent, and that a licensee permitted by one tenant in common to be on the land on a non-exclusive basis cannot be sued for trespass by another tenant in common: Chin Lan Hong v Cheung Poh Choo [2005] 3 HKLRD 811, [35]. I do not think that the position would be altered by the fact that one co-owner has agreed that the other is to have possession of the property subject to such licence. 28. Further, it seems to me that s.26 of the Conveyancing and Property Ordinance (Cap.219) may also be relevant. It provides: A person may take an immediate or other interest granted to him in land or the benefit of any condition, right of entry, covenant or agreement granted to him over or in respect of land, although he may not be named as a party to the instrument. However, since s.26 has not been mentioned at the hearing, I do not rest my analysis on this provision. 29. Returning to Mr Westbrook’s argument, it seems to me that Special Condition (16) of the Conditions of Exchange is intended to ensure that there is no dedication of the Open Space (and other specified areas) to the public, so as to prevent a public right of way from arising by dedication and acceptance, which would potentially be a permanent property right binding on both the Government and the grantee. It does not mean the public has no licence to use the Open Space at all. 30. In any event, when it comes to the question of the exercise of the rights of assembly and of demonstration (to which I refer below), it is the substantial character and practical function of the place that matters. From that perspective, it seems to me at this stage that, irrespective of the niceties concerning the precise legal status of the land in question, the Open Space has taken on the character of public space accessible to every person in Hong Kong without let or hindrance. It lies, in my view, towards the public end of the “spectrum” of the character of a place referred to by Johnson Lam J (as he then was) in Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556, [49]. 31. Accordingly, I do not therefore think that this is a case where the principle in Patel v WH Smith (Eziot) Ltd applies, so that the Court should as a matter of course issue an injunction even at an interlocutory stage to restrain the acts complained of.

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“for all lawful purposes” 32. There is no evidence of the position of either the Government as landlord or the Financial Secretary Incorporated as co-owner of the Lot as regards the activities of the defendants. I shall refer to the stance of the police below but I do not think it can be taken to represent the stance of the landlord or the co-owner. Nevertheless there is nothing to suggest that they have resiled from the position as stated in Special Condition (13)(c)(i) of the Conditions of Exchange and cl.(3)(d) of Sub-section A of Section IV of the DMC. 33. It seems to me that in these circumstances there is at least an argument that the Open Space is by licence open to all members of the public at all times throughout the term of the grant “for all lawful purposes”. On this basis, in order to establish any trespass by the defendants, it would be incumbent upon the plaintiff to show that they have exceeded the terms of the licence. Indeed, the plaintiff does contend that the defendants’ activities carried on in the Open Space are unlawful acts. 34. In what way are they said to be unlawful? First, the plaintiff says that the activities constitute tortious acts because the defendants have trespassed on the plaintiff’s property. It seems to me, however, that this begs the question whether the defendants are there for lawful purposes. This argument takes the analysis no further. 35. It seems to have been suggested by the plaintiff at one stage that the Open Space is made available to the public as a thoroughfare and the permissible and lawful activities there are confined to passing and repassing. That however is not what the Conditions of Exchange and DMC provide in relation to Open Space. They refer to its being open to the public “for all lawful purposes”. This may be contrasted with the provisions about other special areas in the Lot such as “Passage Way” (Special Condition (10)(g)) and “Pink Hatched Black Area” (Special Condition (9)(d)), which do confine the permitted acts thereon to passing and repassing. There is no warrant, in my view, to restrict the meaning of “all lawful purposes” in the provisions relating to Open Space to passing and repassing. 36. Further, the plaintiff contends that the defendants’ activities in the Open Space including the erection of tents and canopies there prima facie amount to an offence under ss.4(23), 4(28) and 4A of the Summary Offences Ordinance (Cap.228). These sections provide:

4. Any person who without lawful authority or excuse:

… (23) plays at any game or pastime to the annoyance of the inhabitants or passers-by; or plays at any game

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or loiters in any public place, so as to obstruct the same or create a noisy assembly therein; … (28) does any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place or to the shore of the sea, or to navigation, mooring or anchorage, transit or traffic; …

shall be liable to a fine of $500 or to imprisonment for 3 months. 4A. Any person who without lawful authority or excuse sets out or leaves, or causes to be set out or left, any matter or thing which obstructs, inconveniences or endangers, or may obstruct, inconvenience or endanger, any person or vehicle in a public place shall be liable to a fine of $5000 or to imprisonment for 3 months.

37. In the Summary Offences Ordinance, “public place” is defined in s.2 as follows: “public place” includes all piers, thoroughfares, streets, roads, lanes, alleys, courts, squares, archways, waterways, passages, paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the Government or of private persons. 38. Section 3 of the Interpretation and General Clauses Ordinance (Cap.1) also contains a definition of “public place”, as follows: “public place” means:

(a) any public street or pier, or any public garden; and (b) any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to which the public have or are permitted to have access.

39. It seems to me that the Open Space in Cheung Kong Center is prima facie a public place within the meaning of the Summary Offences Ordinance. Whether or not the defendants’ activities there are unlawful by virtue of ss.4(23), 4(28) and 4A of that Ordinance depends primarily on whether they are obstructing that public place and if so whether they are doing so without lawful authority or excuse.

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40. The plaintiff also contends that there may have been breaches of ss.14 and 15 of the Fire Services (Fire Hazard Abatement) Regulation (Cap.95F, Sub.Leg.) and s.9 of the Occupational Safety and Health Regulation (Cap.509A, Sub.Leg.). These are all concerned with obstruction of means of escape. While at an early stage of the demonstration the building management staff had decided, as a reaction to the protests, to close a number of entrances and exits to the Building, which had led to concerns being raised about means of escape, as I understand the position now, none of the exits is closed and no complaint is made that egress from the Building is in any way impeded. 41. There is also a suggestion that the storage of fuel for the portable electricity generators brought to the Open Space is a fire hazard and in breach of fire regulations, but the 1st defendant has stated that all the fuel has been removed and is only brought to the site as and when the generators need to be refilled. 42. The principal question that arises under the Summary Offences Ordinance regarding “lawful authority or excuse” seems to me to be the extent and limits of the defendants’ rights of assembly and demonstration. I shall touch upon that subject below but it should be understood that this is being done only in the context of assessing the balance of convenience in deciding whether or not to grant an interlocutory injunction.

Balance of convenience 43. As I understand his submissions, Mr Westbrook does not dispute that the defendants’ right of assembly and of demonstration enshrined in art.27 of the Basic Law is engaged in this case. In Yeung May Wan v HKSAR (2005) 8 HKCFAR 137, the Court of Final Appeal dealt with a case involving convictions for offences of obstruction under s.4(28) of the Summary Offences Ordinance. At [44], Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ stated: Where the obstruction in question results from a peaceful demonstration, a constitutionally protected right is introduced into the equation. In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction. While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.

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In a concurring judgment, Bokhary PJ said at [144]: The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art.27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate. As to that, I think that the participants in a large or even massive assembly, procession or demonstration will often be able to say with justification that their point could not be nearly as effectively made by anything on a smaller scale. Subject to this, the most obviously relevant considerations are, I think, how substantial the interference is and how long it lasts. But other considerations can be relevant, too. These include, I think, whether the interference concerned had been recently preceded by another act or other acts of interference on another occasion or other occasions. What the public can reasonably be expected to tolerate is a question of fact and degree. But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable. 44. Although constitutional rights are engaged in the form of the freedom of assembly and of demonstration, it is not in dispute that these rights are not absolute. The precise limits to the rights are sensitive to the facts and circumstances of each case: City of London Corp v Samede [2012] 2 All ER 1039 (CA), [39]. 45. Mr Westbrook says that the injunction sought will not prevent lawful demonstrations and assemblies; it will just prevent them from being held within the grounds of Cheung Kong Center. That is of course true. However, the location and manner of the assembly and demonstration may, depending on the facts, be important to the protesters’ cause. It has been held by the Court of Appeal in England that such parameters of a demonstration are within the scope of arts.10 and 11 of the European Convention on Human Rights, the equivalent provision to art.27 of the Basic Law: Mayor of London v Hall [2011] 1 WLR 504. At [37], Lord Neuberger of Abbotsbury MR stated: The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation.

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Accordingly, the defendants’ desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11. 46. He added, however, in [38] that: the greater the extent of the right claimed under article 10.1 or article 11.1, the greater the potential for the exercise of the claimed right interfering with the rights of others, and consequently, the greater the risk of the claim having to be curtailed or rejected by virtue of article 10.2 or article 11.2. 47. In this case, as already stated, the assemblies and protests have been organised where they are, apparently because HWL’s Chairman and Deputy Chairman have offices in the Building. Further, Mr McCoy says that the location is significant to the dockers “as that area symbolizes the gargantuan wealth of their true employer”. 48. In this context, it is, in my view, important to bear in mind that the demonstrations have arisen in the course of a trade dispute. The defendants rely on s.46 of the Trade Unions Ordinance (Cap.332) as giving them a lawful basis for doing what they are doing on the Lot. That section provides: Notwithstanding anything in this Ordinance, it shall be lawful for one or more persons, acting on their own behalf or on behalf of a registered trade union or of an individual employer or firm, in contemplation or furtherance of a trade dispute, to attend at or near a place where a person works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working: Provided that it shall not be lawful if they so attend in such numbers, or otherwise in such manner, as to be calculated to intimidate any person in that place, or to obstruct the approach thereto or egress therefrom, or to lead to a breach of the peace, and any person who acts in contravention of this proviso shall be guilty of an offence and shall be liable on summary conviction to a fine of $1000 and to imprisonment for 6 months. 49. Mr Westbrook submits that the section has no application in this case because Cheung Kong Center is neither at nor near a place where the strikers work or carry on business. I reject this submission. The statute protects peaceful picketing at or near a place where “a person” works or carries on business. It does not require

41 2013/9/5—18:13 Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 Godfrey Lam J 59 that the place must be where the pickets work or carry on business. Indeed, it took a legislative amendment to the corresponding English legislation which was in similar terms to s.462 so as to limit the protection to picketing by a person at or near “his own place of work”: see eg s.220 of the Trade Union and Labour Relations (Consolidation) Act 1992. The legislation in Hong Kong has not been changed. 50. There is therefore some force in Mr McCoy’s submission that s.46 is prima facie applicable here, given that the dockers are attending at or near a place, namely, the Building, where a person, namely, Mr KS Li, works or carries on business, for the purpose of peacefully communicating information, namely, their working conditions and their demand for improvement of those conditions, to him. On this basis, the location of the demonstrations has particular significance to the defendants, in that they may lose the protection under s.46 if they move elsewhere. 51. Mr Westbrook says that the dockers are protesting at the wrong place against the wrong person because HWL is not the employer of the dockers and anyway if the dockers wish to appeal to HWL, they should demonstrate outside Hutchison House (where HWL’s offices are), not Cheung Kong Center. 52. But likewise s.46 does not authorise attendance only at or near a place where the pickets’ employer works or carries on business (in contrast to overseas legislation such as s.11(1) of the Industrial Relations Act 1990 of Ireland). The fact that HWL is not the direct employer of the dockers (which I am prepared to assume for present purposes) does not preclude s.46 from applying to picketing against HWL. 53. Moreover, HWL wholly owns Hutchison Port Holdings China Ltd, which holds 27.6% of Hutchison Port Holdings Trust. Cheung Kong (Holdings) Ltd holds another 2.45% interest in that trust. The trust holds 100% of HIT, which is the entity that has apparently entered into “outsourcing” arrangements with contractors who directly employ the dockers. No other holder in the trust has an interest greater than 27%. The trust appears to be managed by Hutchison Port Holdings Management Pte Ltd, which is an indirect wholly owned subsidiary of HWL. There is no dispute that Mr KS Li is the Chairman of HWL, that he is also the Chairman of Cheung Kong (Holdings) Ltd which owns just under 50% of HWL, and that he works in his offices in Cheung Kong Center. In these circumstances it seems to me that Mr Westbrook’s “wrong place, wrong person” argument is, to say the least, inconclusive.

2 Section 46 of the Trade Unions Ordinance has its origin in s.2 of the United Kingdom’s Trade Disputes Act 1906 (which superseded an earlier provision in s.7 of the Conspiracy and Protection of Property Act 1875), which later became s.134 of the Industrial Relations Act 1971 and yet later became s.15 of the Trade Union and Labour Relations Act 1974.

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54. Mr Westbrook also submits that the dockers are not attending at the site “merely” for the purpose of peacefully communicating information, but are also holding rallies, soliciting donations, among other things. In my view, the precise purpose of the dockers’ presence there and in particular whether their activities are carried out in furtherance of the trade dispute are not matters that can properly be resolved in this urgent interlocutory application. In any event, even if there has been an act that exceeded the purpose outlined in s.46, that is not in my view as much a reason for banning the picket altogether as a ground for enjoining that particular act. 55. As for the proviso to s.46, there is no suggestion that the activities of the defendants (at any rate after 26 April) are likely to intimidate anyone, to obstruct the approach to or egress from the Building or the Lot, or to lead to a breach of the peace. 56. It should be borne in mind however that even where the section applies, it does not authorise trespass on private property: LL Ferguson Ltd v O'Gorman [1937] IR 620, 647; Dublin City Council v Technical Engineering & Electrical Union [2010] 4 IR 667, [7]. What it does however in the context of this case is, at least arguably, make clear that the lawful purposes for which the Open Space may be used by the public under the terms of the Conditions of Exchange and DMC extend to picketing activities within the scope of s.46: LL Ferguson Ltd v O'Gorman, 648, cited with apparent approval by Lord Reid in Broome v Director of Public Prosecutions [1974] AC 587, 596. 57. Another factor in the present case, highly significant to my mind, is that the demonstrations have by and large been peaceful. It is true that there was some disruptive conduct inside the Building on 24 April, but on the plaintiff’s own evidence the persons responsible are members of the Hong Kong Students Union, not the strikers or the trade unionists. In any event there is no dispute that, after 26 April, the demonstrations have been peaceful. 58. Coupled with this is the fact, which only transpired during the 1st defendant’s oral submissions at the hearing, that the trade unions had given notice to the Police of the intended public meetings at the site and the Commissioner of Police had issued notices of non-objection under s.11 of the Public Order Ordinance (Cap.245) in respect of public meetings during the period from 20 April to 5 May. The conditions imposed by the Police include a limit on the number of participants and a requirement for persons to be appointed to maintain safety. 59. It should also be noted that s.11(1) of the Public Order Ordinance imposes statutory requirements on public meetings, breach of which is an offence under s.17A(1)(b), as follows: At every public meeting:

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(a) there shall be present throughout the meeting either the person who organized the meeting or, if he is not present, a person nominated by him to act in his place; (b) good order and public safety shall be maintained throughout the meeting; (c) the control of any amplification device that is used in such a manner that it causes a noise that would not be tolerated by a reasonable person shall, if so required by a police officer, be surrendered to the police officer for the duration of the meeting.

60. Thus although, as stated above, the stance of the Police cannot be taken to represent that of the Government as landlord or the Financial Secretary Incorporated as co-owner, it does show that the demonstrations and assemblies have been tolerated by the Police from a public order perspective. 61. Another important feature I take into account is that subject to one point I shall mention, there is no obstruction of ingress to and egress from the Building, and there is no blockade of pedestrian or vehicular traffic. While there is bound to be some inconvenience caused to members of the public including in particular those who work in the Building and in the vicinity, there is no suggestion that they cannot go about their lawful business because of the defendants’ activities. In fact, on the evidence, part of the inconvenience complained of by the tenants of the Building seems to have stemmed from building management staff’s decision to close most of the entrances, and not directly from the demonstrations themselves. 62. The one obstruction which I should mention is the canopies along Queen’s Road Central near the steps to the upper ground floor (at the location marked H on p.306 of the hearing bundles). The public walkway there is narrow and the pedestrian traffic is often busy. Taking into account the interests of the general public, I consider that pending the trial the balance lies in favour of clearing that area from tents and canopies and there should be an interim injunction now preventing the setting up of temporary structures there. 63. I recognise that as a result of the defendants’ activities, there is undoubtedly a loss of space within the Open Space for other members of public to enjoy. But I think that in the balance of convenience during the (hopefully short) period pending the trial of this matter, this loss is one that the public can reasonably be expected to tolerate. 64. There is a suggestion in the evidence that there are fire hazards created by the objects brought on to the site including cans of gasoline and portable generators. The plaintiff has indeed already made a report to the Fire Services Department. As mentioned above,

41 2013/9/5—18:13 62 HONG KONG LAW REPORTS & DIGEST [2013] 3 HKLRD 41

I have been assured by the 1st defendant that the gasoline had been removed. In circumstances where the plaintiff has not been able to point to any law or regulation that has been breached and no action has been taken by the Fire Services Department, I do not think the assertion in the evidence takes the plaintiff very far. 65. Mr Westbrook places heavy reliance on City of London Corp v Samede (CA) and [2012] EWHC 34 (QB), but it seems to me that the circumstances there are somewhat different from those existing in this case now. That was a decision after trial, relating to the occupation of 80% of the public highway (governed by the Highways Act 1980) near St Paul’s Cathedral in London by 150–200 camps for three months. The action was brought by the City of London. The occupied area included land owned by the Church and so there was undoubtedly trespass on private property. Furthermore, the presence of the camps breached planning control and an enforcement notice had been served. The Courts also found there was serious interference with the Convention rights of those who wished to worship in the Cathedral. As the Court of Appeal stated in [49] of Samede, the “essential point” in that case is that: while the protesters’ Article 10 and 11 rights are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely. 66. Mr Westbrook says there is a fundamental difference between demonstration at a place and occupation of a place. He says that even if demonstrations are to be allowed there, at the very least the Court should order the removal of tents and canopies and similar temporary structures so as to prevent occupation of the Lot. In riposte, the 1st defendant and Mr McCoy disavow being any part of any “occupation movement”. They argue that the structures are there for practical purposes. The canopies and tarpaulin shelters have been set up to protect the people there from the elements, and also to function as discussion booths for members of the public to talk to the protesters. They say that Mr Westbrook’s suggestion that the protesters should use umbrellas instead is impractical in the context of prolonged picketing and that if those objects are removed, the picketing and demonstration will be brought to an end by exposure to the elements. It seems to me that this is a matter of fact for the trial. I do not think that City of London Corp v Samede

41 2013/9/5—18:13 Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 Godfrey Lam J 63 decided there is a rule as a matter of law as a consequence of which tents and canopies must be removed even at the interlocutory stage. 67. The plaintiff submits that the defendants plan to be there indefinitely and in the absence of an injunction they will be there permanently. For my part, I do not at present see how they can lawfully do that. Mr McCoy frankly accepts that there can be no “long-term right to impose a location forum for the purposes of their demonstration”. The 1st defendant also stresses that the protesters are dockers who would like to end their industrial action and return to remunerative work as soon as the trade dispute is resolved. The short point, however, is that this is only an application for an interlocutory injunction. Absent an interim injunction, there will still be a trial at which, if still necessary, the plaintiff will press its claim for possession. 68. The plaintiff further submits that under Special Conditions (15)(a) and (19) of the Conditions of Exchange, it is obliged not to allow obstruction of, inter alia, the Open Space. What Special Condition (15)(a) provides is that “the Grantee shall not in any manner whatsoever obstruct or allow or suffer to be obstructed … the Public Open Space …”. Whether or not the plaintiff has “suffered” something to be done depends on whether or not it is within its control. If it has taken steps, but is ultimately unable, to prevent a particular obstruction, I very much doubt that it can nevertheless be said to have incurred a liability under Special Condition (15)(a) for having allowed or suffered the Open Space to be obstructed. Reliance on this clause by the plaintiff seems therefore to me to be a circular argument. 69. In all the circumstances, subject to removing the obstruction I refer to in para.62 above, I decline to grant an interlocutory injunction to prevent any demonstrations within the Lot and outside the Building and I also decline to grant an interlocutory injunction to prevent the keeping of temporary objects such as canopies there or to grant a mandatory injunction for their removal.

Injunction restraining entry into the Building 70. I now turn to the limited ex parte injunction granted by Pang J on 26 April. No one has suggested that the injunction restraining entry into the Building should be discharged as against the 6th defendant. I think it should continue. 71. The 1st to 5th defendants, however, seek to discharge that injunction as against themselves. They point out, correctly in my view, that the injunction is in the nature of a quia timet3 injunction, and that it is established in the authorities, such as Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714, [34], that to obtain such an injunction the plaintiff has to prove that it is 3 Literally meaning “since he fears”.

41 2013/9/5—18:13 64 HONG KONG LAW REPORTS & DIGEST [2013] 3 HKLRD 41 reasonably certain that what the defendants are threatening and intending to do will cause imminent and substantial damage to it. 72. However, as the Court of Appeal also pointed out in Billion Star Development Ltd, [34(2)]: The criterion by which the degree of probability of future injury must be established depends on all the relevant circumstances and are not fixed. The greater the prejudice or inconvenience that may be caused by the apprehended injury (if it occurs), the more readily will the court intervene despite uncertainties and deficiencies of proof. 73. Having reviewed the evidence, I am satisfied that substantial inconvenience or even personal injury may result if confrontations are permitted to occur within the Building. There may be little direct evidence to link the 1st to 5th defendants to the incident resulting from the entry into the Building on 24 April, but I think the plaintiff is entitled, given that incident, legitimately to fear that some of the protesters, of which the 1st to 5th defendants are members, may try again to gain entry in future. It would not be a proper burden to place on the plaintiff to have to identify in urgent situations which persons among the protesters are or are not prohibited by injunction from entering into the Building. Further, the Building is the private property and within the exclusive possession of the plaintiff and there is no question of the public having any right over it. In my judgment the plaintiff is entitled to deny entry to the defendants and to have the continued protection of the injunction granted ex parte on 26 April.

Conclusion 74. For these reasons, I am satisfied that there are serious issues to be tried and damages not being an adequate remedy I have assessed the balance of convenience and come to the conclusion that:

(1) The injunction granted on 26 April should continue until trial or further order; and (2) I decline to grant any further interlocutory injunction at this stage as sought by the plaintiff by its amended summons except a limited interlocutory injunction for the removal of temporary structures, and to prevent obstruction by temporary structures, along the pedestrian walkway on Queen’s Road Central near the steps to the upper ground floor (at the location marked H on p.306 of the hearing bundles).

41 2013/9/5—18:13 Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 Godfrey Lam J 65

75. I shall be prepared to order a speedy trial and give the necessary directions. Subject to what counsel have to say and to the Court’s diary, it seems to me there is no reason why that cannot take place within a matter of weeks.

Reported by Shin Su Wen

41 2013/9/5—18:13 HCA1167/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1167 OF 2001

------

BETWEEN

THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS HONG KONG LIMITED Plaintiff

and

STEWART J.C. PARK also known as JESSICA PARK Defendant

------

Before : Deputy High Court Judge Poon in Chambers Dates of Hearing : 26 October and 3 November 2001

Date of Judgment : 8 November 2001

------J U D G M E N T ------

Application

1. By a summons dated 14 March 2001, the plaintiff applies for an interim injunction restraining the defendant from entering the 22 premises owned or rented and occupied by the plaintiff (“the church premises”). At the first hearing on 16 March 2001, the defendant gave a voluntary undertaking to the court in the terms as sought by the summons. The matter - 2 - was then adjourned for substantive argument, which took place before me on 26 October and 3 November 2001.

Background

2. The plaintiff is the legal entity conducting the affairs of the Church of Jesus Christ of Latter-day Saints (“the Church”) in Hong Kong. The Church is commonly known as the “Mormon Church” and its members, “Mormons” or “Latter-day Saints”. Established in 1830, the headquarters of the Church is in Salt Lake City, Utah, USA. It has tens of thousands of church congregations throughout the world, including Hong Kong. Currently, the Church has about 11,000 members here. Activities including Sunday meetings and gatherings are held in the church premises regularly. Sunday meetings include Sacrament meetings, Sunday school, Priesthood meetings and Relief Society meetings. At the Sacrament meetings, members pray, partake of the Sacrament, sing and listen to sermons. Sunday school is for gospel study. Priesthood meeting is limited to male members who hold the priesthood. Relief Society, limited to adult female members, provides instruction on a variety of topics including theology, home and family education, compassionate service, social relations and home management.

3. The defendant was formerly known as Stewart Park. She suffers from gender identity dysphoria or gender identity disorder (“GID”) or commonly known as transsexualism. For present purposes, I accept that it is a specific illness recognised by the medical profession. After a series of operations, she changed her sex from male to female in about January 2000. Prior to the present dispute, she had been a member of the Victoria Branch of - 3 - the Church for some 23 years, which has at all material times operated from one of the church premises, namely, 7 Castle Road, Central, Hong Kong. She was a faithful member and had at one time been a counsellor in the Bishopric of one of the congregations.

4. By a letter dated 2 December 1999, the plaintiff ex-communicated the defendant and imposed conditions on her future attendance at the Church. At that time, the defendant was already taking medical advice regarding her illness. Preparatory steps for the eventual operations including medication and conducting her life style as a woman had been taken. The conditions the Church imposed, among other things, prohibited her from wearing temple garment, paying tithes and offerings, holding any office in the Church. She was allowed to attend public meetings, that is, Sunday School and Sacrament meetings, if her conduct was orderly. But she might not offer public prayers, give talks, partake of the Sacrament, participate in sustaining officers in the Church, participate in nor initiate gospel discussions in any classes she attended.

5. It is not in dispute that the defendant subsequently breached some of the conditions including partaking of Sacrament and attending Relief Society meetings. By a letter dated 8 February 2000, the Church notified the defendant that she was in breach of the conditions and warned her that continued violation would result in immediate termination of the privilege conferred on her to attend the Church services. The defendant did not pay heed to the warning and continued to act in breach of the conditions. By a letter dated 22 February 2001, the plaintiff’s solicitors informed the defendant - 4 - that she was no longer allowed to enter the church premises and demanded her to sign an undertaking. The defendant refused. The plaintiff then commenced the present proceedings in March 2001.

Approach

6. The essential principles concerning the grant of an interlocutory injunction are well established. The requirements are in short, first that there is a serious question to be tried, and second that the balance of convenience lies in favour of granting an injunction : American Cyanamid Co. v. Ethicon [1975] AC 396; see also Hong Kong Civil Procedure 2001, paragraphs 29/1/8 – 29/1/10.

7. I will approach this application accordingly and examine the two matters in turn.

Serious question to be tried

8. It is hardly in dispute that the plaintiff either owns or has rented the 22 places of the church premises and is in actual occupation of the same. It is also not in dispute that the defendant does not have any interest in any of the church premises, proprietary, contractual or otherwise. The plaintiff contends and I accept that the defendant was a bare licensee. In short, she has no right to be on the church premises other than through the consent or invitation of the plaintiff. Such a bare licensee is revocable at any time on reasonable notice : Megarry & Wade on The Law of Real Property (6th edn.) at paragraphs 17-001 to 17-003. - 5 -

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.

10. Relying on the above proposition, Mr Ma, SC for the plaintiff submitted that on the undisputed fact that the church premises are private properties either owned or rented by the plaintiff; that the defendant is only a bare licensee; that she had breached the conditions of entering into the church premises; and that her licensee had already been revoked by the plaintiff by the letter of 22 February 2001, the burden shifts to the defendant to demonstrate an arguable case that she has a right to do what which is sought to be injuncted to do, that is, to commit a trespass. The “right” in this context means a right to do something even against the will of the person who has title. And only if the defendant can show such an arguable case will the question of balance of convenience arise.

- 6 -

11. Mr Harris for the defendant did not seriously dispute the above proposition. He, however, contended that the defendant has raised at least a serious question to be tried, if not a strong case, on two matters : (1) the plaintiff was in breach of the Disability Discrimination Ordinance, Cap.487, when excommunicating her, subjecting her to the special conditions for entering into church premises and excluding her therefrom; and (2) the plaintiff had acted in breach of natural justice in relation to its excommunication of the defendant and the ensuing events.

12. Counsel has taken me through the evidence leading to the defendant’s ex-communication and on the events thereafter and cited various authorities, including those on the circumstances when a court of law can interfere with the affairs of a religious body. Without any disrespect to counsel, I do not propose to deal with their submissions in depth. Indeed, I think I should abstain from expressing my view on the merits of the case. It is no part of the court’s function at this stage of the litigation to try to decide difficult questions of law which call for detailed argument and mature considerations. These matters are to be dealt with at the trial : per Lord Diplock in American Cyanamid Co. v. Ethicon, above at 406. The matters sought to be raised by the defendant no doubt involve difficult questions of law. For example, whether the relevant sections in the Disability Discrimination Ordinance including sections 25 and 26, are applicable in the circumstances similar to the present context and if so the ambit thereof, has hitherto not been tested in court. When a court can interfere in the affairs of a church is not an easy question either. I am quite satisfied that the - 7 - defendant has raised a serious question to be tried to enable the next requirement on balance of convenience to be considered. To this I now turn.

Balance of convenience

13. Mr Ma submitted that the balance of convenience weighs heavily in favour of the plaintiff. In essence, counsel contended that the plaintiff is entitled to exclude what it regards as a disruptive influence. And there is much potential for trouble.

14. Mr Harris submitted that the balance is very much in favour of the defendant. In short, she should not be deprived of her right to practise her religion as usual at the habitual place of worship, which plays an important part in her life. The defendant is a potential suicide risk, having made suicide attempts in the past. It is an extreme and desperate step to exclude her.

15. Again, I do not propose to go into details of the evidence or the parties’ submissions. Nor will I express my view on them any more than what is necessary to dispose of this application. For some of the matters are clearly pertinent to the central complaints raised by the defendant. They need to be canvassed at trial. Suffice it to say that I have already carefully considered all the materials before me.

16. I must confess balancing the convenience is not an easy task. It boils down to on the one end of the scale, protecting the integrity of the church meetings and members’ feelings against what the plaintiff regards as - 8 - disruptive influence of the defendant, and on the other the defendant’s wish to continue with her religious practice at the habitual place of worship for more than 23 years without undue restrictions, the non-fulfillment of which may adversely affect her emotions and well-being.

17. Having considered the matter carefully, I am of the view that the balance tilts slightly in favour of the plaintiff. Apart from the submissions of Mr Ma, there is one further point. In the present stage of affairs and before resolving all the substantial disputes at trial, the prejudice that the defendant may possibly suffer by attending the Church meetings and services again outweighs the benefit she may be able to gain. There is a real risk that she may well be subjected to what she regards as humiliating (though not necessarily unlawful) treatments by the officers of the Church or even some members of the Church, aggravating her emotional condition further. It may also give rise to further interlocutory applications, which will unnecessarily protract the final determination of the substantive disputes.

Status quo

18. Even if the balance is even, the status quo, that is, the state of affairs existing during the period immediately preceding the issue of the writ should be preserved : Garden Cottage Foods Ltd v. Milk Marketing Board [1984] AC 130, HL. In this regard, Mr Ma submitted that the status quo consisted of the defendant being excommunicated and her licence to be on the church premises revoked. With respect, I agree.

- 9 -

Conclusion

19. For the above reasons, I will allow the plaintiff’s application and grant an interim injunction pending trial or further order in terms of paragraph 1 of the summons, subject to the usual undertaking of damages by the plaintiff. I will also make an order nisi that costs of this application be the plaintiff’s costs in the cause with a certificate for two counsel. The order nisi is to be made absolute within 14 days after handing down of this judgment.

20. This case obviously warrants a speedy trial. I will give the parties liberty to apply in this regard if they so desire.

(J. Poon) Deputy High Court Judge

Mr Geoffrey Ma, S.C. and Mr Li Chau Yuen, instructed by Messrs So, Keung, Yip & Sin, for the Plaintiff

Mr Paul Harris and Ms Vandana Rajwani, instructed by Messrs Stevenson, Wong & Co., for the Defendant

THE COMMON LAW LIBRARY

CLERK & LINDSELL ON TORTS

TWENTY-SECOND EDITION TRESPASS TO LAND AND DISPOSSESSION

whereby the rain-water is discharged on to the claimant’s land,29 or allows the branches or roots of his trees to spread over his boundary,30 or a game of cricket results in the escape of balls hit over the boundary,31 these are acts of nuisance, not trespass. Equally, in British Waterways Board v Severn Trent Water Ltd32 the Court of Appeal made it clear that a trespass action may be brought by the riparian right owner in respect of the direct fouling of a river, notwithstanding that an action would not lie in respect of the fouling of adjoining land, the crucial element being the directness of the invasion.

19-09 Trespass lies without damage To support an action of trespass it is not necessary that there should have been any actual damage.33 The fact that trespass is actionable per se has enabled the action of trespass to be used for the purpose of settling title through actions of ejectment, though today such questions may also be decided by a declaratory judgment. The reason for this principle seems to be that acts of direct interference with another’s possession are likely to lead to breaches of the peace and the policy of the law therefore demands that the claimant be relieved from the requirement of proving damage. So where the owners of an industrial enterprise anticipate the commission of trespass by environmental protestors they can be granted an interim injunction to prevent such trespass.34 Where entry is merely threatened, a quia timet injunction is the appropriate remedy.35 Equally, where a potential threat is posed by something growing on the claimant’s land which was planted there by the defendant, the claimant may seek a mandatory injunction to have the defendant remove it.36 It is reasonable to anticipate a future trespass where protestors who have trespassed in the past have only modi- ﬁed the nature of their protests. Accordingly, injunctive relief for a prolonged period of time may be granted in such circumstances.37

2. WHO MAY SUE FOR TRESPASS

19-10 Person in possession Trespass is actionable at the suit of the person in possession of land, who can claim damages or an injunction,38 or both. A tenant in occupation can sue, but not a landlord, except in cases of injury to the reversion.39

29 Reynolds v Clarke (1725) 2 Ld. Ray. 1399. 30 Smith v Giddy [1904] 2 K.B. 448; Lemmon v Webb [1895] A.C. 1. 31 Miller v Jackson [1977] Q.B. 966. 32 [2001] EWCA Civ 276; [2002] Ch. 25. 33 See, e.g., Anchor Brewhouse Developments v Berkley House (Docklands Developments) Ltd (1987) 2 E.G.L.R. 173. Nor is the triﬂing nature of the trespass any defence: Yelloly v Morley (1910) 27 T.L.R. 20. 34 Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator [2003] EWHC 1738 (Ch); [2004] Env. L.R. 9. 35 Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator [2003] EWHC 1738 (Ch); [2004] Env. L.R. 9. 36 Nelson v Nicholson, The Independent, 22 January 2001. 37 See Wensley v Persons Unknown [2014] EWHC 3702 (Ch) (granting a two-year injunction to restrain anti-fracking protestors from trespassing on rural land in Lancashire.) 38 e.g. John Trenberth v National Westminster Bank (1980) 39 P. & C.R. 104. But the award of an injunction is subject to judicial discretion. Cf. Charrington v Simons & Co Ltd [1971] 1 W.L.R. 598 at 603, per Russell LJ; Patel v WH Smith (Eziot) Ltd [1987] 1 W.L.R. 853. An injunction is prima facie available even if there is no damage. 39 See para.19-26. [1334] WHO MAY SUE FOR TRESPASS

Similarly, a person in possession can sue although he is neither the owner nor derives title from the owner, and indeed may be in possession adverse to the owner.

Concurrent possession For the purposes of the tort of trespass to land, and for 19-11 the purposes of possession, land and its subsoil and superstructures may be divided in horizontal layers, as with apartment ﬂats,40 or where A possesses the pasturage on the surface while B possesses the peat beneath the surface.41 A third person, C, could even be in possession of the minerals below the peat. Indeed, even this last possession may be sub-divided into separate possession of the upper and lower seams of the minerals.42 Each of such parties will be entitled to sue in trespass or expel by force a stranger trespassing on the subject matter of his possession.43 Anything attached to the soil, such as the herbage,44 trees, underwood, etc. may be the subject of a separate possession, and the owner can maintain an action of trespass in respect of it. Movable fees are also known to the law of real property and freehold may exist subject to moving boundaries.45 But the law of trespass is not conﬁned to the protection of freehold and real property. Thus where statute has conferred exclusive rights over reserved burial plots and declared those rights to be personal estate, it has been held that an infringement of such a right is actionable as a trespass, including encroachments upon the surface of the plot in which there is such a right of property.46

Owner of profit à prendre The owner47 of a profit à prendre can sue in trespass 19-12 for any interference with the subject matter of his profit. So, the owner of an exclusive right of fishing can sue in trespass anyone who fishes in his fishery or otherwise interferes with it.48 On the other hand, “an easement differs from a profit à prendre” and “although both may be classed under the head of servitudes, the owner of an easement cannot maintain trespass, the only remedies available to him for disturbance being by abatement or by an action for nuisance.”49

Evidence of possession Possession means generally the occupation or physical 19-13 control of land. The degree of physical control necessary to constitute possession may vary from one case to another, for “by possession is meant possession of that character of which the thing is capable”.50 “The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated there is little which can be done on the land to

40 Ramroop v Ishmael [2010] UKPC 14. 41 Wilson v Mackreth (1766) 3 Bur. 1824. 42 As, e.g., in Butterley Co v New Hucknall Colliery [1910] A.C. 381. 43 Cox v Glue (1848) 5 C.B. 533. 44 Richards v Davies [1911] 1 Ch. 90. Note that cultivated crops are treated as mere chattels: Evans v Roberts (1826) 5 B.C. 829. 45 Baxendale v Instow Parish Church [1982] Ch. 14 (a moveable fee is an estate in land which from time to time changes its position, such as, in this case, the foreshore changed by recession or encroachment of sea). 46 Reed v Madon [1989] Ch. 408. 47 A possessory title probably sufﬁces: Mason v Clarke [1955] A.C. 778 at 794, per Lord Simonds; but see at 806, per Lord Keith; and see Lowe (Inspector of Taxes) v JW Ashmore [1971] Ch. 545. 48 Holford v Bailey (1849) 13 Q.B. 426; Nicholls v Ely Beet Sugar Factory [1931] 2 Ch. 84. 49 Paine & Co Ltd v St Neots Gas & Coke Co [1939] 3 All E.R. 812 at 823, per Luxmoore LJ. 50 Lord Advocate v Young (1887) 12 App. Cas. 544 at 556, per Lord Fitzgerald. [1335] HCA 1741/2002

IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1741 OF 2002 ______

BETWEEN

LEE SHING HONG LIMITED Plaintiff

and

LEON KO

JAMES TOWILLIS (representative of members or associates of the organization known as Greenpeace) Defendants ______

Before: Deputy High Court Judge A Cheung in Chambers Date of Hearing: 10 May 2002 Date of Judgment: 10 May 2002

______

J U D G M E N T ______

- 2 -

1. This is an application for the continuation of an injunction granted by Suffiad J on 7 May 2002 upon the ex parte application on notice made by the Plaintiff against the two Defendants who have been appointed to represent the rather well-known organization Greenpeace.

2. The facts leading to the application for and the obtaining of the ex parte injunction have been set out quite clearly in the relatively short and condensed affidavit evidence filed with the Court for the purpose of the ex parte application, as well as for the purpose of the present application to continue the injunction.

3. The terms of the injunction have been set out in the ex parte order of Suffiad J. I need not repeat the facts or the contents of the injunction here given the urgency of the matter and the shortage of time.

4. In support of the Plaintiff’s case for an injunction, Mr Whitehead SC, counsel for the Plaintiff, basically relies on 3 or perhaps 4 causes of action, they being private nuisance, conspiracy to injure or wrongful interference with economic interest and finally, defamation.

5. For the purpose of the continuation of the present injunction, Mr Whitehead expressly says that he is not relying on defamation as a ground in support of the continuation of the injunction. There is an obvious difficulty with any attempt to rely on defamation as a ground for supporting the grant or continuation of an interlocutory injunction. Freedom of speech or expression is involved and there are stringent requirements laid down by law regarding the grant of interlocutory - 3 - injunction in the case of an alleged libel or slander.

6. In this sort of situation, the usual approach laid down by the House of Lords in American Cyanamid Co. v. Upjohn Co. [1975] AC 396 applies. In other words, I need to consider whether there is a serious question to be tried in relation to the causes of action relied on by the Plaintiff and if the answer is in the affirmative, then I have to consider the balance of convenience.

7. Now in relation to a serious question to be tried, having heard counsel’s submission, I have no doubt that there is indeed a serious question to be tried relating to the various causes of action relied on by the Plaintiff.

8. The staging of demonstration at the lift lobby of the 8th Floor of New World Tower on the day when the injunction was obtained on an ex parte basis, can quite clearly sustain an arguable case based on private nuisance. The demonstration, accompanied by the various posters, signs and allegations made by the Defendants against the Plaintiff and the business it carries on, would again be capable of sustaining a complaint, on an arguable case basis, of unlawful interference with business interest, or a conspiracy relating to the use of unlawful means, or a conspiracy to injure. I need not say anything about the cause of action based on defamation, but in my judgment, there is indeed a serious question to be tried.

9. In relation to the cause of action based on private nuisance, Mr Cheung, appearing for the Defendants, points out to me that the - 4 - duration was short and it was an one-off incident; but I think the law is clear that whilst the duration of the nuisance is a relevant factor to be taken into account and whether this is an one-off incident is also relevant, none of this prevents the matter from being an arguable matter fit to be tried at trial.

10. Having concluded the first issue in that way, I move on to consider the balance of convenience in question. I take into account, firstly, the risk of repetition of the demonstration in question. Mr Whitehead has a point when he submits to me that the fact is that the demonstration has taken place and that by itself is some evidence of a threat of repetition. And apart from that, when the demonstrators ended their demonstration on the day in question, they left behind a sign to the effect that the matter would be continued, or as Mr Cheung puts it, they would return or come back. And moreover, I do have the evidence filed by the first named Defendant that because of the cause for the demonstration in question, and because no doubt of the uncooperative attitude of the Plaintiff, they would not let go the matter, and they would continue with their campaign relating to the subject matter in question which directly concerns the business of the Plaintiff, namely, importation of timber by the Plaintiff from overseas.

11. On the other hand, I take into account what the Defendants have gone on oath to say, namely, that they have no intention of repeating the demonstration at the lift lobby of the 8th Floor outside the office premises of the Plaintiff. After the expression of judicial concern about the lack of any undertaking to back up what the Defendants say about their future intention in their affirmation evidence, Mr Cheung offers, on behalf of his clients, an undertaking to the Court to the effect that Greenpeace - 5 -

China, a limited company incorporated by the worldwide Greenpeace movement in Hong Kong to represent it, will not visit the 8th Floor premises again unless invited by the other side.

12. In my judgment, whilst I do not doubt the genuineness of the Defendants when they talked about the future intention of Greenpeace in their affirmations, in this sort of matter and given the nature of the dispute between the two sides, one just cannot ignore the risk of a future change of tactics on the part of Greenpeace to advance their cause in the protection of the environment. The matter is not helped by the fairly strong stance taken by the Plaintiff in the matter and there is every risk of an escalation of the confrontation between the two sides. So in my judgment, something either by way of an injunction or an undertaking from the appropriate persons would seem to be required in order to prevent the repetition of the demonstration at the 8th Floor premises.

13. Now this is not the only consideration to be taken into account in conducting this balancing exercise. I also consider the potential damage to the Plaintiff if no injunction is granted. Mr Cheung says the Plaintiff has not put in any substantive evidence to prove the alleged damage done to the Plaintiff because of the demonstration. But there cannot be any dispute that the demonstration attracted unwanted press publicity and caused interference with the daily operation of the office of the Plaintiff to some extent; and by the nature of things, this sort of damage or injury is difficult to quantify and that is precisely the reason why in this sort of situation, an injunction is usually a more appropriate form of relief than, say, an award of damages at the end of the day.

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14. On the other hand, I also consider the damage to the Defendants if the injunction is continued. As presently worded, the injunction would prevent the Defendants from demonstrating at the 8th Floor of the office tower, as well as doing anything to interfere with the conduct of the Plaintiff’s business at New World Tower, or causing any nuisance to the Plaintiff’s enjoyment of the premises at the 8th Floor of New World Tower. That does not and would not stop the Defendants from say, holding their demonstrations with all those same signs at any other place like Chater Garden or Statute Square. So viewed in this light, the freedom of speech and freedom of expression, as well as the public interest involved in the whole matter, would not be materially affected by the continuation of the injunction. The public could still be informed of the environmental issue involved in the whole matter and public pressure could still be brought to bear on the Plaintiff to advance the cause of the Defendants, if they think that that is a correct way of advancing the matter.

15. Turning to public interest, there is some debate between counsel as to whether this can be taken into account or whether this is a defence or not. I have been referred to passages in Clerk & Lindsell on Torts (18th ed.) paras.19-71 to 19-72 as well as a rather well known case Millet v Jackson [1977] QB 966 concerning the playing of cricket in UK, but I think the learned editors of Clerk & Lindsell correctly state the law when they suggest that basically public interest is not a defence by itself, but in balancing the competing interests, this is a legitimate factor to be taken into account. I do take this factor into account, but this factor is to a substantial extent neutralized by the fact that this injunction does not seek to stop the Defendants from demonstrating at places other than the office tower where the Plaintiff has its office. - 7 -

16. During submission, Mr Cheung also reminds me of the risk of setting a dangerous precedent. Apart from reminding me that we are operating in a common law system where case law does have the force of law under the doctrine of precedent, and apart from reminding me also that I should be careful with my decision, I do not think much else can be derived from this submission.

17. Certainly, I am mindful of the freedom of speech, the freedom of expression and the public interest concerned in the present case, but I think I have said more than once that the injunction granted by Suffiad J does not interfere with any of this, save that the exercise of the freedoms cannot be done at the office tower in question, in order to protect the legitimate interest of the Plaintiff pending the final adjudication of the dispute between the two sides. Moreover, every case should turn on its own facts, and this question of setting a precedent does not really bother me.

18. Another matter mentioned in this regard is about non-disclosure. This perhaps has nothing really to do with the balance of convenience, but it is convenient to mention it here. Some criticisms have been made by Mr Cheung in relation to the disclosure made by the Plaintiff relating to the alleged loss and damage suffered by the Plaintiff as a result of the demonstration on the day when the ex parte injunction was sought. I see nothing in these criticisms. The application for injunction was obviously made on an urgent basis and those acting for the Plaintiff had in fact done an admirably competent job in putting together the necessary material to be placed before the Court for the Court’s consideration. I see - 8 - nothing in it; and in fact after the obtaining of the injunction, further evidence has been filed. And moreover, the criticisms made by counsel did not surface until Mr Cheung put in his skeleton submission late yesterday, and the Plaintiff simply had no time to respond to the criticisms. And further and in any event, any non-disclosure or material non-disclosure would only affect the original ex parte injunction and would not affect the Court’s discretion in granting a new injunction, assuming that the original injunction was discharged on that ground, if the circumstances would merit the grant of a fresh injunction.

19. So for all these reasons and bearing in mind the general circumstances of this case, I think the balance of convenience comes down on the side of the Plaintiff, and certain injunctive relief should be granted by the Court or continued by the Court. The only outstanding matters are two: one is whether the undertaking offered by the Defendants is sufficient; and two is the wording of the injunction or undertaking.

20. The one matter which gives me some difficulty is this: I have no doubt that based on what I have said, certain injunctive relief or undertaking in lieu should be granted or be given in relation to the holding of demonstration at the lift lobby of the 8th Floor; that is presently covered by paragraph 2(i) of the ex parte order. Paragraph 2(iii) of the order relating to causing nuisance to the Plaintiff’s enjoyment of the office premises at the 8th Floor does not give me any difficulty. But paragraph 2(ii) relates to restraining the Defendants from interfering in any way with the conduct of the Plaintiff’s business at New World Tower. That must, for example, cover the main lift lobby on the ground floor of the tower, or for that matter, any other part of New World Tower; and Mr Whitehead’s - 9 - understanding of this part of the injunction is that it extends to that portion of Queen’s Road Central immediately outside New World Tower.

21. In relation to the cause of action based on private nuisance, I can see some justification for extending the injunction to the whole of New World Tower or at least the ground floor lobby of New World Tower, because the Plaintiff is a tenant of the premises, it has a right to use the common areas of the office tower and if demonstration is held there, then one can arguably say that there is interference of enjoyment of the Plaintiff’s interest in New World Tower as a tenant. But the degree of interference would of course depend on the actual locality within New World Tower where the demonstration is held.

22. Now as I say the Plaintiff also relies on torts like unlawful interference with the business of the Plaintiff, conspiracy to injure and so forth. That, however, if used to support this part of the injunction, would give me cause to reconsider the question of freedom of expression and freedom of speech. This is because the interference would not be caused so much by holding a demonstration, but the subject of demonstration and particularly, how that subject is communicated to the public, i.e. by means of the posters and so forth.

23. And during submission, Mr Whitehead has some difficulty in drawing a distinction between holding such a demonstration within the office tower on the ground floor and holding such a demonstration at say, Chater Garden. If an injunction should be granted to stop the holding of a demonstration at the ground floor lift lobby of New World Tower or the pedestrian pavement outside based on the cause of action of wrongful - 10 - interference with business interest or conspiracy to injure, then logic would seem to require the grant of a similar injunction even if the demonstration is held at Chater Garden. In the latter case, that would, in my judgment, be quite difficult to reconcile with the law’s general protection of freedom of speech and freedom of expression in the context of interlocutory injunction. For this reason, the extension of the injunction to the public street, i.e. that part of Queen’s Road Central immediately abutted by New World Tower, is highly problematic.

24. Mr Whitehead is of course right in pointing out to me that in Hubbard & Pitt [1976] QB 142, a similar injunction was granted by the English Court of Appeal preventing the defendants there from carrying out objectionable activities at the street outside the offices of the plaintiff in question. But each case depends on its own facts and Mr Cheung rightly points out to me that the activities of the defendants in that case were much more extensive and objectionable (from the point of view of the plaintiff) than the activities of the Defendants in the present case. Moreover, that case was decided by the English Court of Appeal in 1975; and so far as this jurisdiction is concerned recent cases by the highest court have reinforced the generally held view that freedom of expression and freedom of speech are important freedoms in this society and should not be lightly interfered with by any authority.

25. So on a balance of convenience, I do not agree that the injunction should extend to outside the office building in question, i.e. the pedestrian pavement of Queen’s Road Central outside New World Tower. But as for the areas inside New World Tower, the consideration is slightly different. As I said, the Plaintiff’s case based on nuisance becomes - 11 - stronger once one gets inside the office tower premises. Moreover, in balancing the competing interests, I note that in relation to premises within New World Tower, the Defendants actually have no right to be there unless lawfully invited by occupiers of the premises to go inside. This is a building owned privately and occupied by commercial tenants. Of course the landlord grants a general licence for entry to anyone lawfully invited by the occupiers and tenants of the building to enter the building, yet if a person has no reason to believe that he is invited by anybody to enter the premises, or if he has no reason to believe that he is invited by any occupiers of the building to enter the building for demonstration purpose, he has no right whatsoever to enter the private premises. So in this regard, in balancing the various interests of the parties, I think the Plaintiff has made out a case for extending the injunction to the whole of the building itself.

26. For all these reasons, I do not agree that the limited undertaking offered by the Defendants is sufficient. In those circumstances, I am minded to continue the injunction with a minor revision of the wording of the original injunction granted, so as to make clear that the injunction does not extend to activities done outside New World Tower. Although I am going to continue the injunction, there is nothing to stop the Defendants from offering an undertaking in terms of the injunction that I am going to continue by persons or bodies who/which are acceptable to the Plaintiff, or failing agreement acceptable to the Court, in lieu of the injunction that I am going to continue.

27. So far as the actual wording of the injunction to be continued is concerned, I would change the word ‘at’ to ‘in’ in the original paragraph - 12 -

2(ii) of the ex parte injunction. Subject to that amendment, I make an order that the ex parte injunction (as amended) granted by Suffiad J be continued until trial or further order of this Court. I should make it clear, for the avoidance of doubt, that in the course of today’s hearing, I gave leave to the Plaintiff to join Greenpeace China as a 3rd Defendant in these proceedings, and Mr Whitehead proceeded with his application for continuation of injunction in respect of all three Defendants. So the injunction that I am continuing covers Greenpeace China as well: strictly speaking, I am continuing the ex parte injunction as amended against the 1st and 2nd named Defendants and am granting a new injunction in the same terms (and subject to the same undertaking as to damages) against Greenpeace China, both to continue until trial or further order. When I say I am granting a new injunction in the same terms against Greenpeace China, I am granting an injunction against Greenpeace China in the usual terms applicable to a corporate defendant. I would leave it to the Plaintiff to draft the injunction against Greenpeace China for the Court’s approval.

28. On the question of costs, Mr Cheung informed me of some without prejudice save as to costs communications between the parties and the making of an offer of an undertaking in lieu of the injunction in question. To cut the story short, the proposed undertaking did not match what I eventually ordered today after hearing submissions from the parties. In my judgment what has been said by Mr Cheung is not sufficient to displace the usual order as to costs in this type of situation. The order as to costs that I am going to make must reflect the result of today’s hearing, and the result of today’s hearing is that the Plaintiff is successful in getting what it asks for save for a minor amendment relating to the original scope of the injunction. Costs should follow the event but of course, this is just - 13 - an interlocutory injunction, so the usual order as to costs i.e. the plaintiff’s costs in the cause, applies, and I make such an order in favour of the Plaintiff.

(A Cheung) Deputy Judge of the Court of First Instance High Court

Mr Robert Whitehead SC, instructed by Messrs Deacons, for the Plaintiff

Mr Y L Cheung, instructed by Messrs Lau & Chan, for the Defendants and Greenpeace China