BILLION STAR DEVELOPMENT LTD v. WONG TAK CHUEN AND OTHERS
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HCA 708/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT ACTION NO 708 OF 2011
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| BILLION STAR DEVELOPMENT LIMITED | Plaintiff | |
and | ||
| WONG TAK CHUEN (王德全) | 1st Defendant | |
| YIP SIU CHAU (葉少舟) | 2nd Defendant | |
| LO CHUNG CHEONG (盧松昌) | 3rd Defendant | |
| CHEUNG CHI YIN (張志賢) | 4th Defendant | |
| LEE WAI KUEN (李慧娟) | 5th Defendant | |
| YU WAI KAN (余慧根) | 6th Defendant | |
| PERSONS ENTERING OR REMAINING WITHOUT THE CONSENT OF THE PLAINTIFF AT THE REMAINING PORTION OF NEW KOWLOON MARINE LOT NO 25 AND SECTION B OF NEW KOWLOON MARINE LOT NO 25 AND OTHER PERSONS INTERFERING WITH THE PLAINTIFF’S RIGHT OF WAY OVER THE PRIVATE ROADS IN MEI FOO SUN CHUEN IN CONNECTION WITH THE PROTESTS AGAINST THE PLAINTIFF’S PROPOSED DEVELOPMENT OF THE SAID PROPERTIES | 7th Defendant | |
| TSANG KIN SHING (曾健成) | 8th Defendant | |
| LEUNG KWOK HUNG (梁國雄) | 9th Defendant | |
| MO MAN CHING CLAUDIA (毛孟靜) | 10th Defendant | |
| ------------------------ | ||
Before : Hon Au J in Chambers
Date of Hearing : 19 December 2011
Date of Judgment : 10 February 2012
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J U D G M E N T
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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 2 Summonses[1], one for summary judgment (“the O14 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) 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, organize and take actions to oppose the Project.
8. The 1st to 6th 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 1st to 6th Defendants together with many other unidentified persons (now joined as the 7th 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 1st to 7th Defendants. The 7th 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, authorizing or permitting any of the following acts:
(1) Entering into, remaining at or in any way trespassing [the Property]; and
(2) Interfering with the Plaintiff’s use, occupation and enjoyment of the Property and its right of way (vehicular or otherwise) over the private roads in Mei Foo Sun Chuen and/or causing nuisance to the Plaintiff in respect of its use, occupation and enjoyment of the Property and its right of way (vehicular or otherwise) over the private roads in Mei Foo Sun Chuen by any means, including (but not limited to:
(a) entering into and/or remaining at the Property;
(b) preventing access (vehicular or otherwise) by the Plaintiff, its servants or licensees into and out of the Property;
(c) preventing access (vehicular or otherwise) by the Plaintiff, its servants or licensees to and through the private roads in Mei Foo Sun Chuen (including [the Access Road]) for the purpose of accessing the Property; and
(d) preventing the Plaintiff, its servants or licensees from carrying out works at the Property.
until after the trial of this action or further order”.
12. The Injunction Summons first went before Deputy High Court Judge 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 Mo[3] appeared in Court and identified themselves to be the 7th Defendant. As a result, they were subsequently joined by the Plaintiff respectively as the 8th, 9th and 10th Defendant.
14. Pleadings and evidence in opposition had since then be filed by the most of the Defendants.
15. In relation to the 1st to 6th Defendants, the 4th 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 4th Defendant.
16. The 8th 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 9th and 10th Defendants act in person and appear at this hearing to oppose the applications. The 9th Defendant has filed a “defence” entitled “答辯大綱”but not any opposing evidence. The 10th 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 7th Defendant is unrepresented and has not taken any steps in the proceedings or appeared at this hearing.
B. The 1st to 6th Defendants have consented to the injunction when it comes to this hearing
19. In their defences and the evidence filed, the 1st to 6th 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 O14 Summons against the 1st to 6th, 8th and 9th 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 O14 Summons.
22. Effectively, by 6 December 2011, the 1st and 6th Defendants confirmed that they were prepared to accept and abide by the terms of the Injunction Summons and the O14 Summons. In other words, the 1st to 6th 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 1st to 6th Defendants also consented to pay the Plaintiff’s costs of the O14 Summons and the Injunction Summons.
C. The remaining applications against the 7th to 10th Defendants
23. Thus, at this hearing, what remains for the present purposes are only the applications against the 7th to 10th Defendants, in which, the Plaintiff asks for:
(1) An interlocutory injunction under the Injunction Summons against the 7th Defendant.
(2) Final injunctive (alternatively interlocutory) relief against the 8th and 9th Defendants (under the O14 Summons and the Injunction Summons), and only interlocutory orders against the 10th Defendant (since she has not filed an acknowledgement of service).
24. I would 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 follow :
“… 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 herby assigned to pass 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 1st to the 6th 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 NKML2[8] R.P. 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 R.P. then became, inter alia, NKML5087 on which the Assess Road is built. NKML25 was then divided into (amongst others) the Property.
32. Fourth, if for any reason 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 1st to 6th Defendants sought to contest some of them, these defences are no longer pursued now as these defendants have consented to a final injunction. The 8th to 10th 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 Plaintiff’s right of way by completely blocking the access to the Property via the Access Road, (ii) created a nuisance by obstructing or impeding the Plaintiff from having proper access to its own Property, and (iii) trespassed onto the Property to prevent Plaintiff’s workers and vehicles from entering and carrying out works thereon. These wrongful activities are well recorded and documented, and not seriously disputed[10].
37. The interference with Plaintiff’s right of way is thus substantial, for the Plaintiff’s only vehicular access to the Property 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 bath[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 pre‑requisite 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].
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 7th Defendant and the 8th to 10th Defendants to see whether the injunctive relief sought should be granted in light of their respective circumstances.
C2. The application against the 7th Defendant
41. Specific directions have been given for substituted service on the 7th 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 7th 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 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 1st to 6th 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 8th to 10th 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 nuisance. Since there were many individuals in the 1st to 6th Defendant’s position whom Plaintiff was unable to identify, the 7th 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 7th 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 7th 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 8th to 10th Defendants came forth to identify themselves as the 7th 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 7th Defendant by way of a general description as the Plaintiff has done in the present case. The question appears to arise as O6 r1 of the Rules of High Court 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 was unknown or could not be identified[18]. This practice was also explained by the British Columbia Court of Appeal in Jackson v Bubela[19]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 jurisdiction, 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, 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)as permissible and granted an ex parte injunction order. 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 plc v News Group 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 to 14, Sir Andrew Morritt VC answered these questions in the affirmative and granted the application. He explained the reasons at paras 15 to 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 rule 3.10 (which confers 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 and Tony Blain 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 VC 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 O1A rr 1(a) to (c) and 2 of RHC, are equally inconsistent with an undue reliance on form over substance. Further, our O2 r1 (as with rule 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 O2 r1 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 and Tony Blain 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].
55. The question in relation to the 7th 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 7th Defendant by blocking the other private roads of Mei Foo to prevent access to the Access Road.
57. As the 7th 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 1st to 6th Defendants to see if they may afford the 7th 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 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.
(2) In any event, I am not satisfied that the evidence put forward by the 1st to 6th 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 4th, 5th and 6th 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 shows does not support a bona fide defence that the 7th 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 to 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 A 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 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 7th 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 1st to 6th 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 1st to 6th Defendants do not afford the 7th 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 paragraph 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 7th Defendant.
C3. The applications against the 8th to 10th Defendants
65. The 8th to 10th Defendants raise effectively two grounds of opposition to the application for injunction (whether final or interlocutory against them).
66. First, 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.
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 8th to 10th 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’s submissions that the 8th to 10th 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 7th 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 conducts 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 emphasized and reinstated in their affirmations and at the hearing that it was within their constitutional rights to participate and support these demonstrations and rallies organized 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 the Plaintiff’s right to use the Access Road. Thus, by asserting a right to do so, they have further by their conducts 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 8th Defendant, when pressed by the Court as to why the 8th Defendant had voluntarily identified himself to be the 7th 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 8th 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 laboured under a misunderstanding in identifying himself to be the 7th Defendant is a matter of fact (and thus evidence), but the 8th 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 7th Defendant at the hearing in April 2011, the 8th 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 7th 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, 8th to 10th 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 paragraph 61 above.
71. Thus, or all the above reasons, I do not accept any of the 8th to 10th Defendants’ grounds of opposition.
72. They have failed to raise any arguable defence to the O14 Summons and the Injunction Summons. I would therefore grant a final injunction against the 8th and 9th Defendants, and an interlocutory injunction in the same terms against the 10th Defendant.
D. Conclusion
73. The Plaintiff is successful in its applications against the 7th to 10th Defendants. There be an interlocutory injunction in the terms of the Injunction Summons against the 7th and 10th Defendants, and a final injunction in the terms of the O14 Summons against the 8th and 9th 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 8th and 9th Defendants, costs of the O14 Summons and the Injunction Summons be to the Plaintiff with certificate for two counsel;
(2) In relation to the applications against the 7th and 10th 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.
| (Thomas Au) Judge of the Court of First Instance High Court |
Mr Benjamin Yu SC, Ms Eva Sit and Mr Elliot Fung, instructed by Mayer Brown JSM for the Plaintiff
Attendance of Ho, Tse, Wai and Partners, for the 1st‑6th Defendants, excused
The 7th 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 8th Defendant
The 9th Defendant appeared in person
The 10th Defendant appeared in person
[1] Respectively dated 21 November and 20 April 2011.
[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.
[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.
[5] See Megarry & Wade, The law of Real Property, 7th ed, paras 30‑006 p 1294; Alvis v Harrison (1991) 62 P&CR 10 at 14‑16 (per 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), paras 20‑06 (p 1276), 20‑09 (p 1278).
[8] New Kowloon Marine Lot No 2.
[9] Gray and Gray, Elements of Land Law, 5th ed, paras 5.2.21‑5.2.22.
[10] See Chan Wing’s 1st Affirmation paras 7‑14; Fong Yen Yin’s 1st Affirmation, paras 8‑30; Law Wing Cheung’s 2nd Affirmation, paras 5‑11; Chan Wing’s 2nd Affirmation, paras 6‑17; Fong Yen Yin’s 2nd Affirmation, paras 5‑8, 12‑15; Chan Wing’s 3rd Affirmation, paras 4‑14.
[11] See Chan Wing 2nd 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 to 47 of this Judgment) that up to 9 November 2011, Plaintiff was still prevented (by masked protestors) on the Access Road from entering the Property.
[12] See Clerk & Lindsell, para 19‑10.
[13] West v Sharp (1999) 79 P&CR 327 at 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] 1 Ch 149 at 181 and 194; Patel 858E‑H, 859D‑F, 862D‑E; Spry, Equitable Remedies, 8th ed, pp 384‑386.
[15] See Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287; Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v Henble Limited (unrep., HCA 2844/2003, 8 August 2003, Deputy High Court Judge To) paras 13‑17.
[16] Chan Wing 1st Affirmation, para 13.
[17]Friern Barnet Urban city Council v Adams [1927] 2 Ch 25 (CA) at 30‑32.
[18]Barnett v French [1981] 1 WLR 848 at 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 at 82‑83.
[20] See Golden Eagle Liberia Ltd v International Organisation of Masters, Mates and Pilots, Marine Division, International Longshoremen’sAssociation [1974] 5 WWR 49 at 52‑53 (British Columbia); Tony Blain Pty v Plain [1994] FSR 497 at 499‑500 (New Zealand).
[21] [2003] 1 WLR 1633.
[22] See also Hamsphire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2004] Env LR 9 at paras 6‑8 per Sir Andrew Morritt VC.
[23] See Unreported judgment, HCAL 51/2011, 29 August 2011.
[24] See Howse’s Affirmation, paras 15‑19.
[25] See also Patel, supra, at 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, at paras 31‑41 and 52‑53.
[27] The 10th 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.
[28] See Spry, Equitable Remedies, 8th ed, pp 371‑381.
[29] Ibid, pp 380‑381.
Please refer to CACV49/2012 for the relevant appeal(s) to the Court of Appeal.