Judge's dilemma as two rights make one wrong
Constitutional rights are not absolute, according to the judge who last night granted the interim injunction throwing striking dockers out of the Kwai Tsing terminals.
Court of First Instance judge Patrick Li Hon-leung said he needed to strike a balance between the dockers' constitutional right to strike and freedom of expression with the private right of the port operators to use the terminal.
Li said the constitutional right of the unionists - the defendants in the case - was not absolute if it adversely affected the lawful, private rights of the terminals, who sought the injunction.
"There is no dispute that the terminals are private property. The question is whether there is a real risk that the demonstration will continue and need to be restrained," the judge said.
Li said he was satisfied that "the demonstration will continue" and that it will "gravely affect the plaintiffs' business".
The judge also took into consideration the issue of safety and did not find any need for the defendants to stay inside the terminals.
George Lamplough, lawyer for Hongkong International Terminals and COSCO-HIT Terminals, told the court: "It is an urgent application and the problem is escalating … with an escalating number of people congregating in the terminals. It is entirely appropriate for the court to grant the injunction."
He added: "The plaintiffs do not dispute the defendants' right to strike where the principles are clear in the Hong Kong law. But what the defendants object to is an abuse of the right that Hong Kong law has given."
But lawmaker Lee Cheuk-yan, one of 14 unionists named in the injunction, disagreed. Lee argued that it was news of the terminals' decision to apply for an injunction that had swelled the numbers of demonstrators, which reached about 1,000 last night.
"[The injunction] would only worsen the employer-employee relationship," Lee said.
Before the hearing began, the judge told unionists in the courtroom to "restrain" themselves and not to do anything drastic.
"Please respect the court. Even if you want to chant slogans, your audience isn't here to hear it," Li said in Cantonese. "Long Hair" Leung Kwok-hung was also present to show his support.