The Hong Kong Occupy Injunction Cases A Critical Appraisal on Competing Public and Private Rights

Research output: Journal Publications and Reviews (RGC: 21, 22, 62)21_Publication in refereed journalpeer-review

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Original languageEnglish
Pages (from-to)507-539
Journal / PublicationICL JOURNAL-VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW
Volume11
Issue number4
Online published5 Dec 2017
Publication statusPublished - 20 Dec 2017

Abstract

In September 2014, the deadlock over election reforms in Hong Kong sparked off a mass civil disobedience occupy movement. This political dispute eventually reached the legal arena after the filing of injunction applications before the courts of Hong Kong to clear the protest sites. This article aims to discuss the courts' approach towards the adjudication of these injunction cases. In particular, this article will review: (a) the appropriateness of the scope of the interim injunctions granted to protect the plaintiffs personal rights under the tort of public nuisance; (b) the function of the police in implementing the injunction orders; (c) the position the courts should adopt in defending individual rights of the plaintiffs if a similar remedy is already available under the statute; and (d) the way courts should reconcile competing claims and protect both the unidentified protestors' human rights and the private rights of the plaintiffs. The article maintains that the injunction cases have set rather dangerous precedents regarding the protection of fundamental rights in Hong Kong in cases of public order involving protection of private rights. The same analysis leads to the conclusion that in a democratic society, the courts have a duty to find the balance between the protection of fundamental human rights and private rights under tort of nuisance, while also observing significant procedural rules.

Research Area(s)

  • the occupy central movement, public nuisance, breach of statutory duty, human rights and freedom of expression/demonstration