During the recent 40-day dock-workers strike, owners of the Kwai Chung Container Terminal and the Cheung Kong Centre applied to the Court for interlocutory injunctions to restrict named and unnamed individuals from demonstrating on their land. In both cases, injunctions were granted, although in more limited terms than originally requested because the court had to weigh the rights of private property owners to enjoy their land against the constitutional and statutory rights of individuals to demonstrate.
An interlocutory injunction
An interlocutory injunction is a temporary remedy, imposed in urgent cases to preserve the status quo between parties until a time when the dispute between them can be heard.
Since the injunction is imposed at a time when the court has not fully heard the parties' cases, it cannot be granted lightly - a strict test is applied. A judge must first establish that the dispute between the parties involves a serious issue to be tried. Second, it must be the case that the usual remedy of a payment of damages after determination of the full case would be inadequate, and finally, the court must be satisfied that the balance of convenience would be best served by granting the temporary injunction.
In both cases, the landowners alleged in support of their applications for an interlocutory injunction that the demonstrations taking place on their land amounted to trespass. In Hong Kong, there is a generally accepted principle that a landowner with undisputed title is entitled to an injunction to restrain unlawful intrusion to his land, even where he suffers no harm. Two issues arose in relation to this principle: first, whether the landowners' title was undisputed, and second, whether the demonstrations amounted to unlawful intrusion.
Title to the Cheung Kong Centre building itself, and to the Kwai Chung Container Terminal, was undisputed. However, in the case of the Cheung Kong Centre, the judge distinguished between title to the building and to the open spaces outside the building. He held that the open spaces had taken on the character of public space and could be used by the public "for all lawful purposes".
The right to demonstrate
The demonstrators denied that their actions amounted to trespass. They stressed their constitutional rights of assembly and of demonstration, and their statutory right under section 46 of the Trade Union Ordinance (Cap. 332) (TUO), which allows those acting in contemplation of a trade dispute to attend a place of work in order to peacefully obtain or communicate information or to persuade any person to work or abstain from working. These rights were not disputed, but it was accepted that none of them were unfettered.
The balancing act
The court will be reluctant to impose interlocutory injunctions except where absolutely necessary, and even then, an injunction will only be granted in the narrowest terms necessary.
In the dock-workers cases, the balance sought was to adequately protect a landowner's property against trespass, while also safeguarding an individual's constitutional right to demonstrate. The two judges ultimately achieved balance by tailoring the terms of the injunctions granted to the facts of the individual cases.
Justice Godfrey Lam held in the Cheung Kong Centre case that substantial inconvenience and even personal injury might result if the demonstrators were permitted to enter the Cheung Kong Centre building. An injunction was therefore granted to prevent entry to the building by the demonstrators. However, the judge declined to restrict demonstrations in the open spaces around the building.
In relation to the Kwai Chung Container Terminal, there was no evidence of violence or other unlawful acts and the demonstrations appeared to be peaceful. Consequently, Justice Mimmie Chan imposed an injunction with the limitation that up to 80 demonstrators could enter the car park for the purpose of peacefully exercising their rights under section 46 of the TUO.