TIME SQUARE LTD v. LEE KWUN KIT t/a JL Music AND ANOTHER

HCA 2244/2018

[2020] HKCFI 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2244 OF 2018

__________________________

__________________________

________________

DECISION

________________

Application

1.  By a summons dated 4 November 2019, the Plaintiff applied for default judgment against the 1^st and the 2^nd Defendants (“the Summons”).  Specifically, the Plaintiff seeks the following relief:

(1)     a declaration that busking activities or any other forms of street performance do not constitute “passive recreation” pursuant to the Deed of Dedication dated 30 July 1992 (as defined below); and

(2)     various injunctions restraining the Defendants from, inter alia,

(a)     occupying or remaining at the Open Piazza (defined at paragraph 7 below) of Times Square by busking or any other form of street performance;

(b)     causing, placing or leaving obstructions at the Open Piazza in connection with the carrying out of busking or any other form of street performance; and

(c)     disturbing, interrupting or obstructing any of the Plaintiff’s employees in the proper execution of their duties in connection with the injunctions mentioned above.  

2.  The Plaintiff makes the present application under Order 19 rule 7 of the Rules of High Court (Cap. 4A), on the basis of (i) the 1^st Defendant’s default in filing any Defence, and (ii) the 2^nd Defendant’s default in filing any notice of intention to defend these proceedings.  

3.  The Defendants are currently subject to interlocutory injunctions granted by Deputy High Court Judge MK Liu the terms of which are essentially the same as the final relief sought by the Plaintiff.

4.  The 1^st Defendant has agreed to a Consent Order on 29 May 2019.  On 26 June 2019, an interlocutory injunction was granted against the 2^nd Defendant. 

5.  None of the Defendants chose to appear at this hearing albeit being properly served and notified of the Plaintiff’s present application. 

6.  Ms Wong for the Plaintiff submitted that default judgment should be entered against the Defendants, because:

(1)     The 1^st Defendant has defaulted in filing any Defence in compliance with the unless order of Master Chow dated 14 August 2019, whereafter the 1^st Defendant has not expressed any further intention to defend or take part in these proceedings.

(2)     As regards the 2^nd Defendant, despite the well-publicised status of these proceedings since September 2018, no one answering the description of D2 has ever come forward, or expressed any intention or interest in participating in these proceedings. Thus, no one who fits the description of the 2^nd Defendant has filed any Acknowledgement of Service (or Defence), notwithstanding proper service of the court documents having been effected on them.

(3)     The Plaintiff is plainly entitled to judgment on the basis of its Statement of Claim dated 24 September 2018 (“SOC”), and the facts of this case amply justify the grant of declaratory and injunctive relief to the Plaintiff in this application.

Material Facts

Deed of Dedication

7.  The Plaintiff is the registered owner of the development known as Times Square in Causeway Bay in Hong Kong (SOC §1). 

8.  At the G/F of Times Square, there is an open piazza (“Open Piazza”) which is widely used by the public for pedestrian passage and passive recreation. 

9.  By a Deed of Dedication dated 30 July 1992 under Memorial No. UB 5380714 (“Deed of Dedication”), the Plaintiff dedicated the Open Piazza unto the public for the purposes of pedestrian passage and passive recreation (“Permitted Purposes”), subject to the terms and conditions set out in the Deed of Dedication (SOC, §6).

10.  Notwithstanding the public dedication of the Open Piazza, the Plaintiff retains full ownership and management of the Open Piazza (SOC, §7).  Further, the rights of the public to use the Open Piazza for the Permitted Purposes is not absolute and is not unrestricted (SOC, §8). In particular, the permitted uses of the Open Piazza are subject to, inter alia, the following restrictions (SOC, §9):

(1)     “No person shall climb, damage, pull down or destroy any of the trees, shrubs or plants or pluck the flowers in the [Open Piazza] or wilfully cut up or injure the surface of the gravel walks or lawns or trample on or injure the beds or place or leave any obstructions or things on the walks or elsewhere within the [Open Piazza]” (Clause 2(c)(v)).

(2)     “Noisy and disorderly conduct and every other practice in the opinion of the Owner likely to cause annoyance or nuisance or to interfere with the use and enjoyment of the [Open Piazza] as open space and passive recreation ground are forbidden” (Clause 2(c)(vii)).

(3)     “No person shall in the [Open Piazza] wilfully obstruct, disturb, interrupt or annoy any other person in the proper use of the [Open Piazza], or wilfully obstruct, disturb or interrupt any servant, employee or person employed by the Owner in the proper execution of his duty or of any work in connection with the laying out maintenance landscaping or upkeep of the [Open Piazza].” (Clause 2(c)(xi)).

11.  The Plaintiff’s pleaded case against the Defendants is that:-

(1)     The 1^st Defendant is an individual who operates under various names, including “JL Music” and “City Echo” (SOC, §§2-3).

(2)     The 2^nd Defendant comprises individuals whose identities are unknown, and includes (but may not be limited to) individuals or groups of individuals organised by the 1^st Defendant to conduct busking and other activities at the Open Piazza of Times Square as pleaded in the SOC (see SOC, §§4-5).

(3)     On multiple occasions, including but not limited to six successive Fridays between 17 August 2018 and 7 September 2018:

(a)     The 1^st Defendant (via the names “JL Music or “City Echo”) hosted and/or organised for various individuals or groups of individuals, including himself and members of the 2^nd Defendant, to conduct busking and other activities at the Open Piazza (“Infringing Acts”). These were done without the Plaintiff’s consent, and did not constitute the Permitted Purposes under the Deed of Dedication (SOC, §§3-5,11-12).

(b)     The Infringing Acts frequently generated noise louder than 70 dBA, which constituted noisy conduct and attracted verbal complaints from tenants and others, and constituted breach of Clause 2(c)(vii) of the Deed of Dedication (SOC, §12).

(c)     The Infringing Acts also constituted breach of Clause 2(c)(v) of the Deed of Dedication, by reason of the obstruction caused by, inter alia,: (i) the placards placed by the Defendants beside their performance at the Open Piazza, (ii) the freestanding loudspeakers, amplifiers and portable electricity supplies used by the Defendants in their performances, and (iii) the freestanding percussion instruments, electronic keyboard, chairs, stools, microphone stands or music stands used in their performances (SOC, §13).

(d)     The Plaintiff through its staff members and its solicitors had on multiple occasions issued verbal and written warnings, requesting the Defendants to cease and desist from conducting further Infringing Acts (SOC, §14).

(e)     In continued breach of Clause 2(c)(xi) of the Deed of Dedication, the Defendants showed no intention of obeying the instructions of the Plaintiff’s employees and agents, but continued to advertise and conduct busking activities at the Open Piazza (SOC, §15).

(f)     By reason of the aforesaid, the Defendants’ Infringing Acts constituted acts of trespass on the Plaintiff’s land (SOC, §17), and the Plaintiff seeks the relief as set out in the SOC.

Procedural history

12.  On 24 September 2018, the Plaintiff commenced these proceedings by Writ of Summons indorsed with the SOC.  On the same day, the Plaintiff issued an inter partes summons (“24.09.2018 Summons”) and applied for (i) substituted service with respect to the 2^nd Defendant, and (ii) various interlocutory injunctions restraining the Defendants from (inter alia) busking, conducting any other form of street performance, or causing obstructions at the Open Piazza, until trial of the action or further order of the court.

13.  The 24.09.2018 Summons was heard by DHCJ Keith Yeung SC on 28 September 2018. At that hearing:

(1)     D1 was legally represented,and agreed to provide undertakings to the court which substantially mirrored the interlocutory relief sought by the Plaintiff. The Plaintiff’s application for interlocutory injunctions vis-à-vis the 1^st Defendant was adjourned for substantive argument (subsequently fixed to be heard on 26 June 2019). The court also ordered for the filing and service of subsequent pleadings in the action as between the Plaintiff and the 1^st Defendant to be stayed until final disposal of the 24 September 2018 Summons.

(2)     The 2^nd Defendant was absent. The court was satisfied that the description of the 2^nd Defendant was sufficiently certain to identify those who were necessarily included, and excluded those who were not, after applying the test laid down in Billion Star Development v. Wong Tak Chuen [2012] 2 HKLRD 85 at §54 per Au J. (as he then was) and Bloomsbury Publishing plc v. News Group Ltd [2003] 1 WLR 1633 at §§15-22 per Sir Andrew Morritt VC.  The court further held that it was impractical to effect service on all the individuals who fell within the stated description of the 2^nd Defendant, and granted orders for substituted service on the 2^nd Defendant.  In particular, it was ordered that service on the 2^nd Defendant of all orders made by the court in this action and any further notices of the hearing or future court documents, be by fixing the same at a conspicuous place at the Open Piazza, and notice of such documents shall be posted up on the website of the Plaintiff. The 24.09.2018 Summons as between the Plaintiff and the 2^nd Defendant for interlocutory injunctions was adjourned to 5 October 2018 before the Summons Judge.

(3)     The adjourned 24.09.2018 Summons as between the Plaintiff and the 2^nd Defendant came before G Lam J. on 5 October 2018.  At that hearing:

(a)     The Court was satisfied that the directions for substituted service on the 2^nd Defendant had been duly complied with. Notwithstanding that, no one answering the description of the 2^nd Defendant appeared in court to respond to the Plaintiff’s summons for interlocutory injunctions.

(b)     After considering the evidence and the Plaintiff’s submissions, the Court further granted interlocutory injunctions against the 2^nd Defendant until determination of the 24.09.2018 Summons between the Plaintiff and the 1^st Defendant, on the basis that the substantive hearing would provide a good opportunity for the Court to review the Plaintiff’s application for injunctions against the 2^nd Defendant in light of the arguments advanced by the 1^st Defendant who was then legally represented.

(c)     The substantive hearing of the 24.09.2018 Summons was heard on 26 June 2019 by Deputy High Court Judge MK Liu.

(d)     Neither the 1^st nor the 2^nd Defendant (i) filed any evidence in opposition to the 24.09.2018 Summons, or (ii) attended the hearing.  The Plaintiff’s application was therefore uncontested, and its supporting evidence unchallenged by the Defendants.

(e)     Importantly, prior to the hearing, the 1^st Defendant signed a consent summons, agreeing to the continuation of the injunctions sought by the Plaintiff, and seeking leave for his attendance to be excused.  By Consent Order dated 29 May 2019, the Court granted an order in terms of the consent summons, under which the interlocutory injunctions against the 1^st Defendant were continued until trial of this action or further order of the court.

(f)     With respect to the 2^nd Defendant, the Court was first satisfied that the relevant documents in these proceedings had been duly served on the 2^nd Defendant. The Court further held that (i) the 2^nd Defendant’s busking activities at the Open Piazza constituted trespass to the Plaintiff’s land, and (ii) whilst it was not necessary to consider the balance of convenience, the balance was in any event clearly in favour of granting the injunction against the 2^nd Defendant.  Accordingly, the Court ordered that the injunctions against the 2^nd Defendant be continued until trial of this action or further order of the Court.

Applicable Legal Principles

14.  The relevant legal principles on granting default judgment under Order 19 rule7 are well established and can be summarised as follows.

(1)     The default judgment procedure under Order 19 rule 7 is available in cases where the defendant is in default of notice of intention to defend, as well as in default of defence: see Hong Kong Civil Procedure (2020) (Vol.1) (“HKCP”), §19/7/2.

(2)     In determining whether to grant default judgment, the Court must consider the application according to the pleadings alone, and decide whether the plaintiff appears to be entitled to judgment on its statement of claim: see HKCP at §19/7/11; Seto Yim King v. Soo Hooyet Dew[2019] HKCFI 2640 at §10 per K Yeung J.

(3)     The court cannot receive any evidence, and it is thus not necessary for the plaintiff to prove its case by evidence: see HKCP at §19/7/11.

(4)     Notwithstanding the wording in Order 19 rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory: see HKCP at §19/7/14; Seto Yim King v. Soo Hooyet Dew (supra) at§12.

(5)     With regards to the Plaintiff’s claim for injunctive relief, it is well-established that the court has jurisdiction to grant permanent injunctions in default judgments: see HKCP at §19/7/17; Biostime International Investment Ltd v. France Heson Paper (Hong Kong) Co Ltd[2015] 2 HKLRD 658 at §§12-13 per Deputy High Court Judge Paul Lam SC.

(6)     With respect to the Plaintiff’s claim for declaratory relief:

(a)     It is not the normal practice of the court to make a declaration without a trial as in the case of a judgment in default of defence or of notice of intention to defend the proceedings: see Patten v. Burke Publishing Ltd [1991] 1 WLR 541 at 543A-H (citing Wallersteiner v. Moir[1974] 1 WLR 991, 1029-1030); HKCP 2019 at §§19/7/14, 19/7/20; Seto Yim King v. Soo Hooyet Dew (supra) at §12.

(b)     However, it has been repeatedly emphasised that this is only a rule of practice and not of law, and will give way to the paramount duty of the court to do the “fullest justice to the plaintiff to which he is entitled”.  Hence, the court has been prepared to grant declaratory relief in default judgments, especially where the plaintiff has a “genuine need for declaratory relief”, or where “doing the fullest justice to the plaintiff justifies the grant of appropriate declaratory relief”: see: HKCP 2019 at§§19/7/14, 19/7/20; Patten v. Burke Publishing Ltd[1991] 1 WLR 541 at 544B, D-E, F-G per Millett J (as he then was); Seto Yim King v. Soo Hooyet Dew (supra) at §§13, 16, 17 (which granted declarations relating to the plaintiff’s title, interest and rights in a property).

(c)     It has further been noted that, given the nature of an application for default judgment which is akin to an ex parte application, the plaintiff must make a full and frank disclosure to the court of matters which militate against the grant of declaratory relief, so that the court can properly assess the merits of granting the same without the benefit of full submissions from both sides: see Sky Joy Investment Ltd v. Zheng Dunmu unreported,HCA 395/2016, 16 August 2017 at §50 per Deputy High Court Judge William Wong SC.

Analysis

15.  With respect to the 1^st Defendant, I am satisfied that the 1^st Defendant has breached the unless order of Master Chow dated 14 August 2019.  Hence, the 1^st Defendant is now debarred from filing any defence.  The Plaintiff is thus entitled to enter default judgment against him with costs.

16.  Insofar as the 2^nd Defendant is concerned, I am also satisfied that no one who fits the description of the 2^nd Defendant has filed any notice of intention to defend.

17.  On the facts of the present case, I grant permanent injunctions against the 1^st and the 2^nd Defendants in terms of paragraphs 2 to 5 of the Summons.  But I refuse to grant the declaratory relief.

18.  On the merits, I am satisfied that the Plaintiff is entitled to the permanent injunctions.  The Plaintiff is the registered owner of the Open Piazza.  The right of the public (including the Defendants) to use the Open Piazza is subject to the express terms and conditions set out in the Deed of Dedication.  The Infringing Acts committed by the Defendants (i) did not constitute the Permitted Purposes of use under the Deed of Dedication (viz. pedestrian passage or passive recreation), and (ii) in fact, constituted breach of various express terms of the Deed of Dedication.

19.  As such, the Defendants did not and do not have a right to commit the Infringing Acts at the Open Piazza, and thus committed acts of trespass to the Plaintiff’s land.

20.  The public, including the Defendants, must exercise their rights within the four corners of the laws of Hong Kong.  The law must be obeyed.

21.  However, given the effectiveness of the permanent injunctions, I do not find it necessary to grant the declaratory relief.  Ms Wong for the Plaintiff submitted that the interlocutory injunctions granted since September 2018 until the present have remained highly effective in restraining commission of further Infringing Acts by any of the Defendants.

22.  In 曾婉玲 對 兆隆苑業主立案法團unrep, LDBM 199 of 2001; 18 September 2001 at [22], HH Judge Johnson Lam (as he then was) said:

“22. A well‑established reason for a court to refuse to grant declaratory relief is a situation where the exercise does not serve any useful purpose. The principle is summarized in Zamir & Woolf, The Declaratory Judgment, 2^nd Edn., at Para 4.087,

‘If it can be shown that a declaration would not serve any practical purpose, this will weigh heavily in the scales against the grant of declaratory relief.  If, on the other hand the grant of declaratory relief will be likely to achieve a useful objective, the court will be favourably disposed to granting relief.  The question of whether or not any useful purpose would be served by granting declaratory relief is therefore of prime importance in determining how discretion should be exercised.’”

23.  Ms Wong for the Plaintiff submitted that the declaratory relief might give a stronger deterrent effect to those who intend to commit the Infringing Acts.  However, I am of the view that the permanent injunctions to be granted are equally, if not more effective, in preventing the commission of the Infringing Acts.  The Court must be cautious not to overkill by making unnecessary declarations.

Disposition

24.  For all the reasons stated above, I make an order in terms of paragraphs 2 to 5 of the Summons.

25.  Finally, it remains for me to thank Ms Wong for the Plaintiff for her very able and comprehension submissions which greatly assisted this Court.

HCA 2244/2018

[2019] HKCFI 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2244 OF 2018

________________________

________________________

___________________

D E C I S I O N

___________________

INTROUCTION

1.  Times Square is a well-known building in Causeway Bay. This case concerns the busking activities and street performances on the open piazza at the G/F level of the Times Square (“the Open Piazza”).

2.  The plaintiff is the registered owner of the land (“the Land”) on which Times Squares is located. On 24 September 2018, the plaintiff took out a summons (“the injunction summons”) for an interlocutory injunction against the 1^st defendant (“D1”) and the 2^nd defendant (“D2”) restraining them from doing the following until the trial of this action or a further order made by the court:

(1)  occupying or remaining at the Open Piazza by busking or any other form of street performance;

(2)  causing, placing or leaving obstruction(s) at the Open Piazza in connection with the carrying out of busking or any other form of street performance; and

(3)  disturbing, interrupting or otherwise obstructing any servant, employee or person employed by the plaintiff in the proper execution of their duties.

3.  The injunction summons was first heard by DHCJ Keith Yeung SC on 28 September 2018. In that hearing, D1 was legally represented and indicated that the summons would be contested. For the interim period until the determination of the injunction summons, D1 gave an undertaking to the court that he would refrain from doing the matters set out in [ 3 ] — [ 5 ] of the injunction summons. The court satisfied that D2 was properly and sufficiently described in these proceedings[1] and gave an order for substituted service concerning D2 (“the service order”). The court adjourned the injunction summons as between the plaintiff and D2 to 5 October 2018 before the Summons Judge.

4.  On 5 October 2018, the injunction summons as between the plaintiff and D2 was heard by G Lam J. After considering the evidence and the submissions, the court made an interim injunction against D2. The life of the interim injunction is up to the determination of the injunction summons as against D1 or a further order made by the court. The court indicated that the substantive hearing of the injunction summons would provide a good opportunity for the court to review the application for an injunction as against D2 as well[2].

5.  This is the substantive hearing of the injunction summons. Prior to this hearing, on 23 May 2019, the plaintiff and D1 signed a consent summons, in which D1 has consented to the injunction order sought by the plaintiff and sought leave that his attendance at this substantive hearing be excused. On 29 May 2019, upon the undertaking as to damages offered by the plaintiff, I made an order in terms of the consent summons.

6.  The plaintiff now pursues its application for an interlocutory injunction against D2. Having read the evidence adduced by the plaintiff, I am satisfied that the documents in these proceedings have been duly served on D2 pursuant to the service order made by the court.

THE PLAINTIFF’S CASE

7.  The plaintiff has filed evidence in support of the injunction application. Neither D1 nor D2 has filed any evidence in opposition to the application. For the purpose of this hearing, the plaintiff’s evidence is unchallenged by D1 and D2. The essential facts concerning the injunction application as shown in the plaintiff’s evidence are set out below.

8.  On 30 July 1992, as the owner of the Land, the plaintiff executed a deed of dedication (“the Deed of Dedication”) to dedicate the Open Piazza to the public for the purposes of “pedestrian passage and passive recreational use”[3].

9.  Under the Deed of Dedication, even the permitted uses are subject to, inter alia, the following restrictions:

(1)  “No person shall climb, damage, pull down or destroy any of the trees, shrubs or plants or pluck the flowers in the [ Open Piazza ] or wilfully cut up or injure the surface of the gravel walks or lawns or trample on or injure the beds or place or leave any obstructions or things on the walks or elsewhere within the [ Open Piazza ]”[4];

(2)  “Noisy and disorderly conduct and every other practice in the opinion of the Owner likely to cause annoyance or nuisance or to interfere with the use and enjoyment of the [ Open Piazza ] as open space and passive recreation ground are forbidden”[5];

(3)  “No person shall in the [ Open Piazza ] wilfully obstruct, disturb, interrupt or annoy any other person in the proper use of the [ Open Piazza ], or wilfully obstruct, disturb or interrupt any servant, employee or person employed by the Owner in the proper execution of his duty or of any work in connection with the laying out maintenance landscaping or upkeep of the [ Open Piazza ]”[6]; and

(4)  “No person shall affix any bill, placard, or notice to or upon any wall or fence in or inclosing the [ Open Piazza ] or to or upon any tree or plant or to or upon any part of any building, barrier or railing, or of any seat, or of any other erection or ornament in the [ Open Piazza ]”[7].

10.  Under Clause 2(j) of the Deed of Dedication, the plaintiff shall have the exclusive right to place or to permit the placing of temporary structures on the Open Piazza for temporary exhibitions and displays subject to the prior written approval of the then Director of Buildings and Lands (now the Director of Buildings). However, these temporary structures cannot impede pedestrian passage or passive recreational uses in the Open Piazza.

11.  The Open Piazza is a popular open space and recreational area in the heart of a busy shopping district in Causeway Bay, serving Times Square and countless members of the public on a daily basis.

12.  On six successive Fridays (17, 24, 31 August and 7, 14, 21 September 2018), D1 had organized busking activities at the Open Piazza for various individual or groups of performers through his platform “City Echo”. The performers normally came in a group and brought along equipment with them, including free-standing loudspeakers, amplifiers, portable electricity supplies, percussion instruments, electronic keyboards and other musical instruments. The busking activities mostly took place at the covered part of the Open Piazza, and attracted crowds of audience members who observed the performances. This caused obstruction to the public who used the Open Piazza as a means of public passage. Apart from the equipment, the performers would usually place the placards with the logo of “City Echo” in the Open Piazza.

13.  These were not one-off performances. The busking activities organized by D1 had taken place at the Open Piazza on each of the 6 Fridays immediately preceding the 28 September 2018 hearing. The duration of the performances was not short, normally from between 6-7 pm until 11 pm. The noise level readings at the performances were all above 70 dBA.

14.  “City Echo” has a publicly accessible Facebook page which, prior to the court orders of 28 September 2018 and 5 October 2018, had advertised future busking events at the Open Piazza, and published calendars which showed the stage names of the musical acts to be performed. The musical acts which took place at the Open Piazza were the ones promoted by the “City Echo” calendar.

15.  The plaintiff’s staff served multiple warning letters on the various performers and personally requested them to cease their activities, but these warnings were ignored, and D1 and D2 simply continued their busking performances.

16.  After the hearing on 28 September 2018, all the relevant court documents including the order made in that hearing were served on D2 by placing the same at a conspicuous place at the Open Piazza. Despite such clear display and the publication of the relevant documents on the plaintiff’s website, members of D2 continued to perform at the Open Piazza — some of them right next to the table displaying the court documents — on 29, 30 September 2018 and 1 October 2018.

17.  The interim injunction granted on 5 October 2018 has been effective in stopping busking activities and other street performances at the Open Piazza for the past few months. The plaintiff submits that there is a real risk that D2’s infringing acts would resume if the interlocutory injunction sought in the injunction summons is not granted.

THE PRINCIPLES

18.  Mr Jin Pao SC, leading Ms Sheena Wong, has helpfully referred me to a succinct summary by G Lam J in Turbo Top Ltd. v Lee Cheuk Yan, in which the principles concerning interlocutory injunctions have been set out[8]:

“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.  While an interlocutory injunction is sought by a landowner to enjoin trespass to his land, the injunction would almost as a matter of course be granted, even if the trespass causes no harm to the landowner, unless the defendant shows an arguable case that he has a right to do what is alleged to be a trespass. Only in the latter situation should the court consider the balance of convenience. These principles have been set out by DHCJ Poon (as he then was) in The Church of Jesus Christ of Latter-Day Saints Hong Kong Limited v Stewart J C 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 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: Patel 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.  Trespass to land consists of any unjustifiable intrusion by one person on the land possessed by another[10].

ANALYSIS

21.  It is indisputable that the plaintiff is the owner of the Land, including the Open Piazza. Under Clause 1 of the Deed of Dedication, the public has the right to use the Open Piazza for the purposes of “pedestrian passage and passive recreation”, and not for any other purpose. In my view, the activities which D2 have undertaken and promoted in the Open Piazza can hardly be said as within the scope of the prescribed purposes.

22.  Clearly, D2 are not using the Open Piazza for “pedestrian passage”. Further, I agree with the plaintiff’s submission that the plain and natural meaning of “passive recreation” refers to leisurely recreational activities such as strolling, walking or taking a rest, which require minimal facilities or infrastructure, and involve minimal or limited levels of noise, exertions and impact on their surroundings. D2’s busking activities at the Open Piazza go beyond “passive recreation”, particularly in light of (a) the huge amount of noise generated (which have been the subject of complaints by the tenants and neighbours of Times Square), (b) the impact they have on their surroundings, (c) the obstruction caused by D2’s equipment and the crowds to the pedestrian passage at the Open Piazza, and (d) the highly organised and repetitive nature of the scheduled performances.

23.  Clause 2(j) of the Deed of Dedication makes it clear that the public has no entitlement to erect or place structures for the purposes of temporary displays or exhibitions, for an exclusive right to do so is given to the plaintiff subject to the written approval of the Director of Buildings.

24.  I also agree with the plaintiff that D2 may have also breached Clauses 2 (c)(v), 2 (c)(vii), 2 (c)(xi) and 2 (c)(xii) of the Deed of Dedication.

25.  In my view, D2’s busking activities constitute trespass to the Land owned by the plaintiff. There is no evidence showing that D2 may have the entitlement to conduct such busking activities at the Open Piazza. In the circumstances, in accordance with the principles set out in the Latter-Day Saints case, an injunction should be granted to enjoin D2 from doing so. There is no need to proceed to consider the balance of convenience.

26.  Even if the balance of convenience is relevant, the balance is clearly in favour of granting the injunction.

(1)  The busking activities can be moved to elsewhere where they can be performed lawfully. There is no evidence showing why this cannot be done.

(2)  D2’s acts have constituted noisy conduct and nuisance, and caused obstruction to pedestrian passage in the Open Piazza, which is dedicated for public use by way of pedestrian passage and passive recreation. The entitlement of the public to use the Open Piazza free of obstruction should be considered in the balance of convenience[11].

(3)  Under Clause 2 (f) of the Deed of Dedication, the plaintiff has a duty to maintain the Open Piazza “in a clean and tidy condition and free from any obstruction”. The plaintiff has to discharge this duty.

(4)  Various verbal complaints have been received by the plaintiff from tenants and those neighbouring Times Square. The interests of affected third parties should be considered.

(5)  This is not a case concerning the freedom of assembly or demonstration. No fundamental freedoms are involved.

27.  The plaintiff has offered an undertaking as to damages in support of its application for an injunction against D2.

28.  Taking all the aforesaid into account, I am of the view that the plaintiff is entitled to have the injunction sought.

29.  I order that the injunction order made by G Lam J on 5 October 2018 against D2 be continued until the trial of this action or a further order made by the court. Costs of the injunction summons (including all costs reserved) be the plaintiff’s costs in the cause, with a certificate for 2 counsel.

30.  I thank counsel for the assistance rendered to the court.

HCA 2244/2018

[2018] HKCFI 2389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2244 OF 2018

____________

____________

_________________

D E C I S I O N

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1.  This is an application for an interim injunction against busking activities and street performances on the open piazza in Times Square, Causeway Bay, taken out by the plaintiff by summons dated 24 September 2018.

2.  The application first came before DHCJ Keith Yeung, SC as against the 1^st defendant on 28 September.  At that hearing the 1^st defendant gave an undertaking to the court pending the determination of the summons in terms substantially similar to the injunctions sought by the plaintiff, namely:

“ That he shall not whether acting by himself, his servants or agents or any of them:

(a) occupy or remain at the Open Piazza (as delineated in green in the Ground Floor Plan in the third schedule to the Deed of Dedication dated 30 July 1992 (Memorial No. UB5380714)), by busking or any other form of street performance;

(b) cause, place or leave obstruction(s) at the Open Piazza in connection with the carrying out of busking or any other form of street performance; and

(c) disturb, interrupt or otherwise obstruct any servant, employee or person employed by the Plaintiff in a proper execution of their duties in connection with the undertakings in (a) and (b) above, all until after the substantive hearing of the Summons or further order of the Court.”

3.  On that occasion, the Court also directed that service of the proceedings on the 2^nd defendant be effected by way of substituted service by fixing the writ of summons and the order for substituted service at a conspicuous place at the open piazza, placing an advertisement of a Chinese notice and an English notice of these proceedings once in Sing Tao Daily and once in South China Morning Post, and posting the advertisements on the website of the plaintiff.  Directions were also given for the service of the present summons on the 2^nd defendant by affixing the relevant documents at a conspicuous place at the open piazza.

4.  I am satisfied that these directions for service have been complied with.  Notwithstanding that, no one answering the description of the 2^nd defendant has appeared in court today to respond to the summons. 

5.  The 2^nd defendant is described as follows:

“ Persons unlawfully occupying or remaining at the open piazza of Times Square, 1 Matheson Street, Causeway Bay, by busking or any other form of street performance, or persons who cause, place or leave obstruction(s) at the open piazza in connection with the carrying out of such performances”.

6.  Mr Jin Pao SC, who appears for the plaintiff, has argued that the activities that have been taking place at the piazza and which the plaintiff seeks to enjoin, constitute clear trespass on the plaintiff’s property.

7.  The property is the subject matter of a Deed of Dedication made in 1992 whose terms include the following:

“(1) In consideration of the Benefit and in pursuance of the agreement recited in 3 above, the owner hereby dedicates from the date hereof all that the said dedicated area unto the public for the purposes of pedestrian passage and passive recreation for the period during which the said building shall be situated on the said lots and subject to the terms and conditions herein contained.

(2)(c) The right of passive recreation as aforesaid is a right to use or enjoy the said dedicated area as an open space and passive recreation ground and such right shall be restricted as follows.

(v) No person shall ... place or leave any obstructions or things on the walks or elsewhere within the said dedicated area.

(vii) Noisy and disorderly conduct and every other practice in the opinion of the owner likely to cause annoyance or nuisance or to interfere with the use and enjoyment of the said dedicated area as open space and passive recreation ground are forbidden.

(xi) No person shall in the said dedicated area wilfully obstruct, disturb, interrupt or annoy any other person in the proper use of the said dedicated area...

(f) The owner shall throughout the period during which the said building shall be situated on the said lots at its own expense and to the satisfaction of the direction keep and maintain the said dedicated area in a clean and tidy condition and free from any obstruction...

(g) For the purposes of effecting sub‑clause (f) and enforcing sub‑clause (c) and (k) hereof, the owner shall respectively employ such cleaners and watchmen as the owner shall consider necessary and shall also (where appropriate) liaise with Royal Hong Kong Police Force in connection with the security of the said dedicated area.

(k) The owner reserves the full right to evict and/or remove any person from the said dedicated area who is found by the owner to be committing any act of nuisance or disorderly conduct on the said dedicated area.

(5) This Deed of Dedication notwithstanding the said dedicated area is and shall remain the property of the owner...”

8.  The evidence shows that on numerous days in August, September and early October 2018, various busking activities took place at the open piazza where the performers came in groups and brought along equipment with them including free‑standing loud speakers, amplifiers, portable electricity supplies, percussion instruments, electronic keyboards and other musical instruments.

9.  The noise level readings during the performances have all been above 70 dBA in the piazza.  The readings at locations about four metres from the performers were near or above 90 dBA.

10.  In these circumstances, Mr Pao argues that there has been a clear breach of the terms of the Deed of Dedication and, therefore, trespass on the plaintiff’s property.  It is not necessary for me in the context of today to say anything more than that there seems to me to be a prima facie valid argument raised by the plaintiff.

11.  I have to take into account various considerations in determining whether and if so what form of interim relief should be granted.  In the meantime, it seems to me that the balance is not just between the plaintiff’s property rights on the one hand and the 2^nd defendant’s interest in continuing their activities there on the other.  One must also take into account the rights of members of the public generally to the proper use of the piazza in accordance with the terms on which it has been dedicated to the public and also the concomitant duty of the plaintiff, as specified in clause 2(f) of the deed which I have read out, to keep and maintain the area “in a clean and tidy condition and free from any obstruction”.

12.  In all the circumstances, it seems to me the appropriate course is to grant the injunction sought in the terms I have just settled with counsel, not up to the trial of this matter, but only up to the determination of the summons as between the plaintiff and the 1^st defendant who has been legally represented, because that would provide a good opportunity for the Court to review also the application for injunction as against the 2^nd defendant in the light of the arguments heard from the 1^st defendant which may well be of relevance to both.

13.  Accordingly, I grant the injunction that:

(1)  the 2^nd defendant be restrained whether acting by themselves, their servants or agents or any of them or otherwise howsoever from occupying or remaining at the open piazza (as delineated in green in the ground floor plan in the third schedule to the Deed of Dedication dated 30 July 1992 (Memorial No UB53807140) and for identification purposes annexed to this order) by busking or any other form of street performance until the determination of the plaintiff’s summons dated 24 September 2018 as against the 1^st defendant or further order of the court;

(2)  the 2^nd defendant be restrained, whether acting by themselves, their servants or agents or any of them or otherwise howsoever from causing, placing or leaving obstructions at the open piazza in connection with the carrying out of busking or any other form of street performance until the determination of the plaintiff’s summons dated 24 September 2018 as against the 1^st defendant or further order of the court; and

(3)  the 2^nd defendant be restrained whether acting by themselves, their servants or agents or any of them or otherwise howsoever from disturbing, interrupting or otherwise obstructing any servant, employee or person employed by the plaintiff in the proper execution of their duties in connection with the injunctions in paragraphs (1) and (2) above until the determination of the plaintiff’s summons dated 24 September 2018 as against the 1^st defendant or further order of the court.

HCA 2244/2018

[2018] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2244 OF 2018

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DECISION

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The hearing

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

2.  By the Summons, the plaintiff is seeking:

(a)   an order for substituted service of the Writ of Summons, the Summons and all subsequent orders against the 2^nd defendants;

(b)   an interlocutory injunction against the 1^st and 2^nd defendants restraining them (whether by themselves, servants or agents) from:

(i)   occupying or remaining at the Open Piazza[1] of the Times Square by busking or any other form of street performance;

(ii)   causing, placing or leaving obstruction(s) at the Open Piazza in connection with the carrying out of any such performances;

(iii)   disturbing, interrupting or otherwise obstructing any servant, employee or person employed by the plaintiff in the proper execution of their duties.

3.  In so far as the application against the 1^stdefendant is concerned, the parties have reached consensus on a set of directions, to the effect that upon the 1^stdefendant’s undertaking not to do the acts set out in (i) to (iii) above, the application be adjourned to a date to be fixed for full arguments, with directions on the filing of further evidence in the meantime. I give those directions.  The only modification I have suggested is that those act caught by undertaking (iii) should be confined to those acts in connection with undertakings (i) and (ii).  Parties agree to that.

Substituted service in respect of the 2^nd defendants

4.  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 those who are necessarily included and excludes those who are not: see Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85, at paragraph 54 per Au J, and Bloomsbury Publishing plc v News Group Ltd [2003] 1 WLR 1633 at paragraphs 15 – 22 per Sir Andrew Morritt VC.

5.  I have considered the description of the 2^nd defendants.  On the Writ they are described as “Persons unlawfully occupying or remaining at the Open Piazza of Times Square, 1 Matheson Street, Causeway Bay by busking or any other form of street performance, or persons who cause,place or leave obstruction(s) at the Open Piazza in connection with the carrying out of such performances”.  I am satisfied that the description is sufficiently certain.  Given the fact that the 2^nddefendants is a class of persons not described by names, it is obvious that it is impracticable to serve any process or court document on them in the manner prescribed by the Rules of the High Court.  I am also satisfied that the proposed means ofsubstituted service (namely (1) in so far as the Writ and the Order permitting substituted service are concerned, by (a) fixing the same securely at a conspicuous place at the Open Piazza, (b) by advertisement in one local Chinese newspaper and one local English newspaper; and (c) by posting the same advertisements on the Website of Times Square; (2) in so far as this Summons and all subsequent orders are concerned (including those which the 1^stdefendant is required to serve upon the 2^nddefendants), by (a) fixing those court documents securely at a conspicuous place at the Open Piazza; and (b) posting notices of the same on the website of Times Square) are appropriate and adequate.  I grant the Order sought as amended.

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