Injunctions hanging over ordinary citizens’ heads should not be granted

Juris Discipulus
Nov 4 · 4 min read

By CK

There are a number of interim injunctions granted by the High Court “protecting,” inter alia, the Hong Kong International Airport, the MTR, the discipline services quarters and police married quarters, and the personal data and beyond of the police and their family. The latest one is to restrain the incitement (encouraging or fostering?) of violence online. They are made against the law and common sense.

First, these interim or interlocutory injunctions are not ordered pending any trial of the matters concerned. The judge in the MTR case stated the law: “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” (para.13, emphases added). In the abovementioned five cases, there were some events happened leading to the injunctions, for example obstructing the Airport and the MTR. However, the applicants in these cases did not make any substantive claim as to the harm they suffered caused by those events. How can and will there be a trial? One may argue the injunction against the 2014 Occupy in Mongkok might serve as a precedent, but it offers no justification to having interim injunctions without a main claim and trial envisaged. History tells us that the main claims, if there were any and if they were not sham actions, to which the Mongkok and related injunctions were attached, dissipated with the Occupy. Gladys Li SC identified a “scandalous situation” in which “the plaintiffs should fail to prove particular, substantial and direct damage at trial” in the Mongkok case (para.6). Instead, we have arrived at a more “scandalous situation” of judges prejudging without a proper trial.

Second, the defendants in the five cases are unknowns. This practice again may have its roots in the Mongkok case whose defendants were originally some vaguely described people. The judge in the MTR case cited a Hong Kong case (protest in Meifoo), where an English case was cited, to quickly dispense with this issue. The law is those being sued may be “identified by description and not by name … provided that the description is sufficiently certain so as to identify those who are included and those who are not” (MTR case para.5), but it is definitely not parties against which an injunction is sought can always be a group identified by description. The English case mentioned was about an injunction against those who had received and offered publishers copies of a book without the consent of the author, and the relief sought was to compel delivering up of all copies of the book. The act mandated and the acts used to identify the defendants were entirely different, and the people described can be ascertained independently of the acts required by the injunction. None of the five recent injunctions are comparable to that English case. As in the Meifoo case, the five current injunctions may have been made on a quia timet basis (the acts prohibited are threatened and intended). The principles of this injunction — like “[t]he plaintiff has the burden of proving that it is reasonably certain that what the defendant is threatening and intending to do will cause imminent and substantial damage to him” (Meifoo case para.34) — presuppose the defendant(s) be first identified; otherwise, whose threat and intention are we going to prove, and how can these be proved? If the defendants are those who act in the prohibited ways, their identity or identification will not be known until they so act. Then, the test for granting a quia timet injunction cannot be passed, and no such order can be made.

Third, the courts may be usurping legislative power. Pursuant to the description of the defendants, someone will become one of them only if s/he does or is doing the prohibited acts. The identity of defendants and any breach of the injunctions are established simultaneously. In short, everyone is restrained from doing the enjoined acts. It seems the injunctions function like general criminal laws against every ordinary citizen. Despite the technicalities of enforcing injunctions, the issuance of injunctive orders actually increases the maximum penalty of some offences (e.g. MTR By-law 28H abusive language) and criminalises certain civil torts (e.g. harassment). These injunctions against everyone are distinguishable from those made in normal cases since under the former, people become the defendants after they commit the prohibited acts making them unable to oppose the injunction applications even if they wish, whereas the latter target specific defendants, who may have had the opportunity to make submissions against an injunction, without injuring the interests of the public. This also shows that injunctions against everyone are no injunction for there have been no defendant. Such injunctions may simply be a disguise for illegitimate criminalisation of loosely defined behaviour.

It is astonishing that the five recent injunctions and the like may amount to judicial fiat which is unconstitutional and illegal given there is no main claim accompanying the injunctions, the defendants are unrecognisable or nonexistent, and the courts seemingly take upon themselves the legislative power being unfaithful to the Basic Law.

Suggested citation: CK, ‘Injunctions Hanging over Ordinary Citizens’ Heads Should Not Be Granted’ (Medium — Juris Discipulus, 4 November 2019) <https://medium.com/@jurisdiscipulus/injunctions-hanging-over-ordinary-citizens-heads-should-not-be-granted-5efd8dba8a5>

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