Alleged trespass: refusal of interim injunction

In Turbo Top Ltd v Lee Cheuk Yan ([2013] 3 HKLRD 41, CFI) P was the grantee of land on which there was both a building and an open space. P and the Financial Secretary were co-owners of the land. The Conditions of Exchange and the Deed of Mutual Covenant each provided that the open space was to be open to all members of the public for all lawful purposes (but the Conditions of Exchange made it clear that neither party intended to dedicate the open space to the public nor consented to any such dedication). The defendants were protesting outside the office in connection with an industrial dispute. P sought an interlocutory injunction requiring them to leave.

Godfrey Lam J said that ordinarily an injunction was available almost as of right to restrain a trespass ([17]). This, however, was not necessarily an ordinary case. It was plausible that the protesters as members of the public had a licence to use the open space as a result of the provisions in the Conditions of Exchange and Deed of Mutual Covenant. This could not be unilaterally revoked by one co-owner without the consent of the other ([26] – [27]).

Further:

‘In any event, when it comes to the question of the exercise of the rights of assembly and of demonstration (to which I refer below), it is the substantial character and practical function of the place that matters. From that perspective, it seems to me at this stage that, irrespective of the niceties concerning the precise legal status of the land in question, the Open Space has taken on the character of public space accessible to every person in Hong Kong without let or hindrance. It lies, in my view, towards the public end of the “spectrum” of the character of a place’. ([30] per Godfrey Lam J).

It had not been shown that the protesters were using the open space other than for lawful purposes. Thus, it was not appropriate to grant an interlocutory injunction requiring the protesters to leave the open space.

Michael Lower

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