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By Marc Rubinstein | August 11th, 2018

In countries where common law is practiced, a public nuisance arises when one’s actions materially affect the reasonable comfort and convenience of the public. A public nuisance can also be a crime. It can also be super annoying.

We have seen in Hong Kong how aspects of our thriving tourism industry can, at a minimum, grate on the nerves. So-called “begpackers” visiting Hong Kong from presumably wealthy western countries are found begging for travel money on the streets, or at strategic spots on a covered walkway, and have raised understandable ire. Mainland visitors crowding shopping malls have on occasion been given preferential treatment by certain global brands, and they have not always been welcomed with open arms.

The nuisance which I would like to highlight today though are the hordes of tour groups clogging the Central-Mid-levels escalator, snapping selfies in front of notable murals and generally impairing movement around the greater SoHo area. Clearly, the legal issues at stake here are not as weighty as the important issues of LGBT rights I have discussed previously.

Nonetheless, I would posit that there is indeed a real danger presented. With so many people milling about on narrow sidewalks — for example, where Lyndhurst Terrace meets Hollywood Road — I fear it is only a matter of time before there is an unfortunate traffic incident. Seriously. Beyond that, I wouldn’t discount the odds of a hangry resident impaired in their ability to enter Marks & Spencer by a congregating tour group, punching an innocent but slow-moving tourist in the face.

Even in the absence of this potential for violence, I do believe that if the rate of tour group activity is not held in check, the escalator might cease to function as a viable commuter option and turn into something like the Santa Justa Lift in Lisbon, Portugal. That lift was completed in 1901 and, encased in an iron tower, was formerly a useful option for local residents to ascend the slopes of hilly Lisbon but is now relegated to a tourist ride with its attendant queue. Navigating through the tourist throngs that are claiming the slopes of SoHo, I have a greater appreciation for what long-term residents of Venice must feel, or perhaps Romans who live adjacent to the Trevi Fountain.

Whether impacted local businesses or property owners could successfully bring an action for private nuisance against tour operators who congregate in front of their storefronts and block paying customers, I won’t analyze in detail. Nor will I attempt a thorough application of the elements of the crime of public nuisance to assess the activity of the groups who block walking access down steep Graham Street.

But in seriousness, I do think the Hong Kong Tourism Board or other appropriate governmental body should consider promulgating guidelines to regulate how and where tour groups congregate in the SoHo area and consider other appropriate restrictions. These regulations need not have the force of law but can be in the form of suggested guidance on responsible and respectful tourism. The streets are narrow and I do think this does ultimately present a safety risk. Consider this a warning.

Failing these voluntary remedies, there is always the legal case to make. Marks & Spencer, are you listening?

 

Want more insightful legal commentary? Check out previous op-eds from our Sanity Check columnist.