Thursday, 13 November 2014

Questionable Use of the Law

How Admiralty looked two weekends ago... what will it look like next week?
It's always interesting when a judge speaks out and in particular about the application of court injunctions to clear the protest sites at Admiralty and Mongkok.

Speaking in a personal capacity, Mr Justice Henry Litton, a non-permanent judge of the Court of Final Appeal, questioned the "curious" handling of the applications, describing the orders as being "extremely odd". He also questioned why the Hong Kong government did not take over the lawsuit initiated by the taxi and bus operators.

In a rare speech on Occupy and the rule-of-law issues at the University of Hong Kong, Litton said: "A civil court process was being invoked for what I feel is a public order issue."

He said he was "intrigued" when the case was first heard ex parte basis, wherein the party affected, in this case the protesters, were not present to defend their actions.

"The process of going to a court to seek an order behind the back of a person to be affected by the order is a most drastic remedy, because the unvarying principle of common law is no one's interest should be affected without having been given an opportunity to be heard."

He added only in an urgent situation would justify an ex parte hearing, and also questioned the urgency.

So Litton went to Mongkok to check out the situation himself on a rainy day. He did find the court injunction in a plastic container that was only written in English and was "not easily legible".

He observed the notice did not clearly state how the plaintiff would clear the site -- whether bulldozers or dump trucks would be used, for example, which also made it "an extremely odd order". Which is why he wondered how this would have satisfied the court, though "anything less would demean the rule of law".

And if it was an "emergency", why hadn't the plaintiffs acted immediately? observed Litton.

He also had some critical words for the Secretary of Justice, Rimsky Yuen Kwok-keung, who didn't exercise his right to take over the court action to enforce the rights of the public, but instead it was the police who had to help the bailiffs execute the order.

As for the application for Citic Tower, Litton said it was different because the owners were trying to protect property rights.

The latest is that the High Court has rejected the appeal by protesters, which will now allow bailiffs to clear Mongkok.

Mr Justice Thomas Au Hing-cheung said the protesters' case for an appeal was unsound and refused to delay the injunction.

Lawyers for the protesters had said the court should not be addressing a question of public order through civil litigation, and added the plaintiffs had not given sufficient evidence that it had suffered any "particular, direct and substantial" loss as a result of the protest that was over and above the inconvenience suffered by the general public.

But Judge Au said those points had been heard in earlier hearings and refused the application to appeal and to delay the injunctions.

Outside the court, barrister Margaret Ng for the protesters complained the court and the plaintiffs did not explain how the court order will be carried out.

"The order will affect a lot of people in the area. They should have the right to know details of the court order. Otherwise, it will be unfair," Ng said.

One has to wonder about this ruling and it brings to mind what Litton said yesterday...

The supposed start of clearing the sites did not happen this week and so it is expected to happen next week. There will probably be lots of people going to Admiralty and Mongkok this weekend one last time... if it really is the LAST time...

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