Hong Kong’s High Court Injunction On Mongkok & Admiralty Protestors Invites Questions

Here’s the story in the South China Morning Post.

China LIS LAW has been running hot with a number of questions and scenarios that raise questions about this rather murky injunction


Rob Precht of Justice Labs Hong Kong asks  …….  “Can anyone on this list opine whether it was properly obtained? Who represented the protesters? Is the order evidence that the independence of HK courts has been compromised? “

Michael Dowdle (University of Singapore)  highlights that it’s a private and not govt injunction brought by  taxi operators and a minibus company. He writes …“In bringing suit, plaintiffs probably also argued that they they were suffering irreparable harm, given the high likelihood that we would not be able to secure compensation for their lost income, and that defendants would not suffer irreparable harm if they had to temporarily disperse pending trial — which, once you understand what the common law means by ‘harm’, is not an unreasonable argument.  The proper response of a court when faced by a situation wherein one party is suffering irreparable harm from defendant’s action while waiting for trial is to issue an injunction.”

And Julian Cohen Barrister Parkside Chambers (Hong Kong) I agree  that prima facia (without sight of any details or papers) reliance on private nuisance as a cause of action appears questionable and troubling if the land is public land. It may be that the plaintiffs have a non exclusive licence over a public area – in which case it is arguable that this legally creates a basis for a claim and injunction in relation to trespass – see the English case concerning protests in woods being cleared for Manchester airport runway , and which has been applied in Hk. However , there are contrary arguments that could be deployed by those seeking to overturn injunctions Another potential cause of action that was relied on in the last of these sorts of injunctions that I dealt with was the tort of unlawful economic interference. Again there are arguments here that can be deployed to try to overturn the injunctions. Would be interesting to see more about how the underlying causes of action have been framed

Hong Kong’s High Court orders protesters off roads in Mong Kok and Admiralty

Judge demands clearing of some areas in Mong Kok and Admiralty as government and students prepare for long-awaited dialogue
The High Court yesterday ordered pro-democracy protesters to leave main roads in Admiralty and Mong Kok immediately, as top officials and student leaders explored ways to make progress in talks on political reform, due to begin today.

A government source said the administration had recognised it was unrealistic to try to disperse protesters by force and expected the demonstrations that have paralysed parts of the city since late last month could continue for at least another month.

However, in an interview with The New York Times, Chief Executive Leung Chun-ying hinted at possible intervention by the central government if the situation remained unresolved.

“So far Beijing has left it to the Hong Kong government to deal with the situation, so I think we should try our very best … to stay that way,” he was quoted as saying. “Challenging myself, challenging the Hong Kong government, at these difficult times will do no one any service, will do Hong Kong’s high degree of autonomy no service.”

The Court of First Instance yesterday granted three injunctions – two for Mong Kok and one for Admiralty – requiring the protesters to leave.

Granting the Mong Kok orders, Mr Justice Jeremy Poon Shiu-chor agreed that “the defendants’ behaviour in the demonstration has caused obstruction … exceeding the boundary of what is reasonable in light of the length of the demonstration, the extent of the demonstration and the increasingly violent confrontation between the protesters and the police.”

The orders, for portions of Nathan Road between Argyle Street and Dundas Street, and Argyle Street westbound between Tung Choi Street and Portland Street, had been sought by taxi operators and a minibus company.

The Admiralty injunction, sought by the owners of Citic Tower, requires protesters to clear emergency vehicle exits and the car park entrance of the building at the junction of Tim Mei Avenue and Lung Wui Road, next to the government headquarters. Poon said: “The court is not a forum where political views are vindicated or argued. The court is only to apply the law and to uphold the rule of law.”

Meanwhile, parties to today’s talks, due to start at 6pm, were considering a key demand of the protesters that the government submit “supplementary information” to the national legislature to reflect events since late August when it set the framework for the 2017 chief executive election that sparked the protests.

At the beginning of the televised talks at the Academy of Medicine in Aberdeen, Chief Secretary Carrie Lam Cheng Yuet-ngor and a Federation of Students representative will give five-minute opening remarks. There will be a 90-minute discussion before the meeting ends with 10-minute closing remarks from each side.

The federation’s secretary general, Alex Chow Yong-kang, expected the talks to focus on political reform, although the police’s reaction to the protests, including the use of tear gas and pepper spray, would be difficult to avoid, he said.

Academics were speculating, meanwhile, whether the Communist Party Central Committee’s plenum that opened yesterday in Beijing would touch on the Hong Kong protests.

Ye Haibo , a law professor from Shenzhen University, said the issue might be brought up, stressing that the city’s political reform had to be in line with the Basic Law and the decision by the National People’s Congress Standing Committee.

But Chen Xinxin , a legal affairs expert at the Chinese Academy of Social Sciences, said the issue was unlikely to be discussed. “There is no need to set new rules to solve the problems facing Hong Kong. “

Also yesterday, the US consulate rejected an assertion by the Ministry of Foreign Affairs that forces in foreign countries had instigated the protests. “We categorically reject accusations that we are manipulating the activities of any person, group or political party in Hong Kong,” it said.