Barrister Kenneth K Y Lam Barrister Kenneth Lam Counsel Kenneth K Y Lam Counsel Kenneth Lam 郭吳陳律師事務所 Kenneth K Y Lam Kenneth Lam Kwok Ng and Chan Solicitors Lawyer Kenneth K Y Lam Lawyer Kenneth Lam Ng Man Kin Solicitor Ng Man Kin 林嘉仁 林嘉仁大律師
香港誹謗官司之畢架山花園陳揚新大勝畢架山花園陳清華 – Incorporated Owners of Beacon Heights Defamation Case [2018] HKDC 1585 – DCCJ 2028 / 2016 – Deputy District Judge Jeffrey Chau in Court
DCCJ 2028/2016 – [2018] HKDC 1585
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 2028 OF 2016
CHAN CHING WAH（陳清華） Plaintiff v CHAN YEUNG SUN（陳揚新） Defendant
Before: Deputy District Judge Jeffrey Chau in Court
Dates of Hearing: 21 & 23 August 2018
Date of Judgment: 21 December 2018
JUDGMENT
1. This is an action for libel.
2. The allegedly defamatory statements were published by the defendant via an email dated 25 December 2015.
INTRODUCTION
3. Before 11 December 2015, the plaintiff and the defendant were members of the management committee of the Incorporated Owners of Beacon Heights (“the IO”).
4. An annual general meeting of the IO took place on 11 December 2015 (“the AGM”). Members for the new management committee were to be elected during the AGM.
5. Both the plaintiff and the defendant stood for re-election.
6. Voting by proxies was allowed at the AGM. The procedure and mechanism of the subject proxy arrangement can be summarised as follows:-
(1) A registered owner of a property and/or a car parking space of Beacon Heights could cast his vote at the AGM via a proxy.
(2) An owner who opted to cast his vote via a proxy was required to indicate his choice of the proxy in writing to the management company of Beacon Heights, namely, Urban Property Management Limited (富城物業管理有限公司) (“UPML”) at the material time.
(3) UPML would then prepare the relevant proxy form(s) (which did not state the identity of the proxy) and a covering form (which specified, inter alia, the name of the proxy) (“the Covering Form”) accordingly.
(4) When the proxy signed his attendance at the AGM, staff members of UPML would hand over to the proxy the proxy form(s) with the Covering Form. The proxy would then sign on the Covering Form to acknowledge receipt.
7. According to the plaintiff, before the AGM began, he went to the counter to collect his proxy forms, but found that all of them were missing.
8. Upon the plaintiff’s enquiry, staff members of UPML informed him that his proxy forms were collected by the defendant, who had signed the corresponding Covering Form to acknowledge receipt. It is not disputed that the defendant did sign the Covering Form (“the Mistake”).
9. According to the defendant, he was given a pile of proxy forms by an officer of UPML who asked him to sign to acknowledge receipt. The defendant did so without checking.
10. It is also not disputed that the Mistake was discovered and rectified by UPML before the AGM began.
11. However, in the course of the AGM, just before the voting procedure was about to begin, the plaintiff raised this issue concerning the Mistake in front of all the owners in attendance. The relevant part of the AGM was taped and transcribed (“the Transcript”).
12. Neither the plaintiff nor the defendant was re-elected as a member of the IO.
13. On 23 December 2015, UPML apologised to the defendant in a formal letter, admitting that an officer of UPML had given the plaintiff’s proxy forms to the defendant by mistake (“UPML’s Letter”).
14. On 25 December 2015, the defendant issued an email (“the Email”) to 9 people, including the plaintiff, the manager of the UPML and the current members of the management committee (as they then were). The Email was not marked “Private and Confidential”.
15. The Email is in Chinese, and is reproduced in full as follows:-
“致上屆管委會各委員：
現附上管理處給我的來函，内容有關2015年12月11日業主週年大會處理授權票事宜，希望各位看後，可以清楚知悉整件事的過程，及了解起因是管理處弄錯所引起，證明本人是無辜，及無端受辱，並籍此函還我清白。
於當晚會議中，有前委員陳清華先生和虞静芝女士利用此次管業處失誤事件，故意誇大，魯莽指責和詆譭我的‘conduct’和‘integrity’，雖然我當時有盡力解釋，可惜他們不欲澄清，仍不斷用言語攻擊，在我看法，似乎是别有用心。本人對他們的行為，心感憤怒，無奈和失望。
最後我想表達的，大家都希望畢架山花園是一個生活和諧，美好屋苑，因此我以包容的心態看待這椿不愉快事件，亦不作任何追究。希望各位明白一切，公平公正地評價他們對我的無理指控，還我清白。
謝謝！
陳揚新謹啟
抄送：新屆管委會各委員” (underlining added)
“To Whom It May Concern””
16. The English translation that has been agreed to by the Parties is as follows:-
[Agreed English translation by the parties:
“To the committee members of the previous management committee:-
I now attach hereto a letter from the management office to me, the contents of which are about the matter concerning the handling of the proxies at the owners’ annual general meeting on 11th December 2015. I hope after reading that, all of you can get to know clearly the whole process of the entire incident, and understand that the cause was a mistake on the part of the management office, proving that I am innocent, and was humiliated for no reason, and to clear my name through the attached letter.
At the meeting that evening, former committee members Mr Chan Ching Wah and Madam Yu Ching Chee used this management office mistake incident, deliberately exaggerated, recklessly accused and defamed my ‘conduct’ and ‘integrity’. Although at the time I had tried my best to explain, they did not want to clarify, and continued to verbally attack me non-stop. From my viewpoint, this seems to be tainted with ulterior motive. I feel angry, helpless and disappointed about their behaviour.
Lastly I wish to express this. We all hope Beacon Heights is a harmonious, good estate. So I use a tolerating mentality to look at this unhappy incident, and do not pursue remedies for this in any way. I hope all of you can understand everything, fairly and justly evaluate their unreasonable accusations against me, and clear my name.
Thank you!
Yours with respect,
Chan Yeung Sun
Cc: New Management Committee Members”
“To Whom It May Concern””] (underlining added)
17. The underlined words are the allegedly defamatory statements (“the Relevant Words”).
18. On 28 December 2015, at the IO’s management committee meeting, which the defendant attended as a visitor, hard copies of the Email were further distributed to an additional 5 members of the management committee.
19. The 9 persons mentioned in paragraph 14 hereinabove and the 5 persons mentioned in paragraph 18 hereinabove (14 persons in total) are collectively referred to as “the Recipients”.
THE ISSUES
20. The defendant does not dispute that he published the Relevant Words. The plaintiff’ has also, sensibly, abandoned the claim for malicious falsehood and an injunction.
21. After the parties made their closing submissions, it became clear that the main issues in the present case are as follows:-
(1) Whether the Relevant Words were defamatory to the plaintiff;
(2) If the Relevant Words are defamatory, whether the defendant can rely on the defence of qualified privilege or justification; and
(3) The quantum of the damages, if any.
THE MEANING OF THE WORDS
22. Words are defamatory when they cause harm to one’s reputation. Three formulae have been particularly influential: (1) would the imputation tend to “lower the plaintiff in the estimation of right-thinking members of society generally?”; (2) would the imputation tend to cause others to shun or avoid the claimant?; and (3) would the words tend to expose the claimant to “hatred, contempt or ridicule”? (Richard Parkes, QC and others, Gatley on Libel and Slander (12th edn, Sweet & Maxwell 2017), paragraph 1.7).
23. Although the same words in an article may bear different meanings to different readers (because of their temperament, knowledge or experience etc), for the purpose of defamation litigation, the words have only one single meaning, and the court has to determine what that single meaning is. In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd(2012) 15 HKCFAR 299, Ribeiro PJ explained at paragraphs 48-50 that:-
“The first doctrine relied on was “the single meaning rule”. In every defamation case (not involving an innuendo) the “natural and ordinary meaning” of the words complained of must be ascertained … What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is “the natural and ordinary meaning” of words in an action for libel … The “natural and ordinary meaning” to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader.”[1]
24. It is also trite that (1) the context and circumstances of the Relevant Words in the Email must be taken into consideration, and the Email has to be read as a whole in order to ascertain the meaning of the Relevant Words (sometimes referred to as the “whole article rule” – see Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 70, D to H and Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at paragraph 42(viii)), and (2) courts would “reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation” (sometimes referred to as the “no strained meaning rule” – see Jones v Skelton [1963] 1 WLR 1362 and Multi-Winner (Supra) at paragraph 42(vii)).
25. I find that the meaning of the Relevant Words is relatively plain. Indeed, there is no material difference between the pleaded meaning of the Relevant Words by the parties, and it is plainly reasonable for the plaintiff to abandon the reliance on innuendo.[2] Subject to one issue on the meaning of the phrase “Mr Chan Ching Wah and Madam Yu Ching Chee (“Madam Yu”)” (see below), the meaning of the Relevant Words is not ambiguous at all and it is unhelpful to attempt to paraphrase the same.
26. By using the Relevant Words, the defendant accused the plaintiff of relying on the Mistake to make unreasonable accusations against him, to the extent that the plaintiff appears to have done so with an ulterior motive. The Relevant Words are therefore plainly defamatory. Mr Lam (who appears for the defendant) does not seriously dispute this.
27. Thus, the real issue is whether the defendant has a defence.
QUALIFIED PRIVILEGE
28. The defendant’s primary case is that the Relevant Words are subject to the reply-to-attack qualified privilege.
29. The relevant principles are summarised in the recent case of Multi-Winner (supra) by Lok J:-
“70. A recognised occasion for qualified privilege is where the statement was made in reply to an attack. The principle has been summarised in Gatley as follows:-
‘… a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided that they are published bona fide and are fairly relevant to the accusations made … Mere retaliation, which cannot be described as an answer or explanation, is not protected, but the defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude in this respect and the law does not concern itself with niceties in such matters …’”
“85. In Gatley, the learned authors said the following relating to reply to attack privilege:-
(i) The defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude in this respect and the law does not concern itself with niceties in such matter;
(ii) The test of relevance is not whether the statement complained of is strictly necessary for or logically relevant to the discharge of the duty or protection of the interest which is the foundation of the privilege. One should not take the approach that the defendant is only protected in doing the “bare minimum” necessary to comply with his duty. Where the statement has any reference to the subject matter of the privilege, or is in any way pertinent or germane to it, it is material only as evidence of malice to take the case out of the privilege.
86. In Hamilton v Clifford [2004 EWHC 1542 (QB)], Eady J also said:-
“Where the allegations do relate to the subject-matter of the original attack, privilege cannot be excluded purely on the basis of a cool and objective analysis as to logical relevance. As Lord Diplock pointed out in Horrocks v Lowe [1975] AC 135, the protection afforded by the defence of qualified privilege might prove illusory if it were to be lost on the basis that the defamatory matter could be shown, upon logical analysis, to be irrelevant to the protection of the right upon which the privilege is founded … Therefore it will be generally appropriate for the jury to assess the relevance, or otherwise, as a factor in resolving any plea of malice.”
30. As regards the issue of whether a communication was published maliciously, the Court of Final Appeal has given useful guidelines in the recent case of Lu, Lu & Lu v Chan & Hui [2018] 3 HKC 136 at 144-H to 148-I & [2018] HKCFA 11 (at paragraph 17 and 18):-
“In order to decide whether a communication was published maliciously, for the purpose of rebutting a defence of qualified privilege, it is therefore necessary to decide two questions, which arise sequentially. First, was the occasion privileged, and if so, for what purpose? Secondly, was that the defendant’s purpose when he published the communication in question? The first of these is a question of law for the judge. The second is a question of fact, to be determined by the jury, where the action is tried with a jury. It is important to keep these basic principles clearly in view. Much confusion can be generated if they are lost sight of.
The motive with which the defendant made the communication in question is therefore of crucial importance: see Horrocks v Lowe at p 149. A person may have more than one reason, motive, or purpose (the terms can in this context be used interchangeably) for making a communication. The critical question is whether the dominant purpose for which he made the communication was one other than the purpose for which the occasion was privileged. As Lord Diplock stated in Horrocks v Lowe at p 149, “he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved”. In practice, as Lord Diplock also said at p 149, the plaintiff generally sets out to prove that a desire to injure him was the defendant’s dominant motive. But Lord Diplock went on to explain that “qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it” (p 151). Accordingly, in a case where a person has published what he believes to be true, “it is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives … that ‘express malice’ can properly be found” (ibid).” (underlining added)
31. Where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose: normally, that is the only inference which can reasonably be drawn. “Recklessness”, in this context, is to be understood in the sense described by Lord Diplock in Horrocks v Lowe: that is to say, “without considering or caring whether it be true or not” (Lu, Lu & Lu v Chan & Hui (Supra) at paragraph 22).
32. Recklessness means indifference to the truth or falsity of the allegation: it does not have to amount to wilful blindness, or to be accompanied by some other state of mind, in order to support a finding of malice (Lu, Lu & Lu v Chan & Hui (Supra) at paragraph 53).
33. Mr Ng contends, inter alia, that:-
(1) The plaintiff did not attack the defendant’s character or conduct, and therefore the reply-to-attack qualified privilege is not engaged;
(2) The Relevant Words were not fairly relevant to the accusations made against the plaintiff (if any);
(3) The defendant published the Relevant Words with malice.
34. I will consider these issues in turn.
(1) Whether the plaintiff attacked the defendant’s character or conduct
35. The defendant’s case is that the plaintiff did attack the defendant’s character and conduct during the AGM. As stated above, thankfully, the relevant part of the AGM is fully recorded in the Transcripts.
36. The most critical issues[3] between the parties are as follows:-
(1) Whether the plaintiff accused the defendant of having a “conduct” problem;
(2) Further or alternatively, whether the plaintiff accused the defendant of having an “integrity” problem, or otherwise endorsed this accusation made by Madam Yu.
37. I have listened to the audio recording of the Transcript and considered the oral evidence of the plaintiff and the defendant. I have also taken into account the very detailed analysis by Mr Ng and Mr Lam in respect of the meaning of the words used by the various people during the AGM.
38. In respect of the first issue, I have no doubt that the plaintiff did attack the defendant’s conduct. This is apparent from the following statements made by the plaintiff during the AGM:-
“呀主席！我呢，就剛才呢，就嚟登記既時候攞Proxy攞返嗰張Voting Form果陣時，發現左一件事，所以我地要提出喇，咁 … err … 我嚟攞個 Voting Form 既時候呢竟然係成份都無左，咁就D職員就話係佢地攪錯左，但係呢簽收人呢就係陳揚新先生，佢竟然將我果疊去，寫住我個名既，呢份 “Form”係度，請大家睇一睇先。畀呀主席唔該！我覺得好有問題囉！ 如果你作為一個咁多屆既委員，點會隨便去簽唔係畀你既 “Form”。
“但係呢個簽收呢寫住我個名，唔係你個名喎！點會委託你呢。你唔係今次第一次做呀嘛！”
“當 “Conduct” 問題，我覺得你做委員 …”
“呢個呢！名就唔係寫陳揚新既，點會簽名落去呢？”
“你睇證據！我個名嚟架唔係你個名吖嘛 … 你仲喺度咁大聲！”
39. It is to be noted that:-
(1) The plaintiff explicitly stated that the defendant had a “conduct” problem – I reject Mr Ng’s contention that the statement “當 “Conduct” 問題，我覺得你做委員 …” can be said to be “neutral”;
(2) This is borne out, in particular, by the fact that the defendant had explained at the outset that he was asked by staff members of UPML to sign the proxy. In spite of the defendant’s explanation, the plaintiff continued to question the defendant’s reason for committing the Mistake in an accusatory tone;
(3) In the context of the Transcript, the plaintiff was plainly suggesting that the defendant’s conduct was wrongful and improper, as opposed to being an innocent mistake. The contention that if the plaintiff intended to attack the defendant, he would have said “misconduct” as opposed to “conduct” is contrived;[4]
(4) Indeed, throughout the Transcript, the plaintiff was accusing the defendant of doing something wrong. He did not merely raise an issue with a view to trying to understand what actually had happened.
40. For the above reasons, I also reject the plaintiff’s case (and the plaintiff’s evidence) that by saying “當 “Conduct” 問題”, he “simply wanted to have a discussion with regard to the fact that the [d]efendant wrongly signed his proxy form but failed to give an explanation or apologise to the Plaintiff in the AGM.”[5] This suggestion is clearly an afterthought.
41. In fact, the plaintiff never approached the defendant during the entire AGM for any discussion of this matter. On the contrary, he waited until right before the commencement of the voting procedure to make the accusation. It is reasonable to infer that the plaintiff intended to attack the defendant’s reputation by making use of the Mistake at the opportune moment.[6]
42. The second issue arises[7] because the plaintiff did not himself use the word “integrity”. This word was used by Madam Yu in respond to the plaintiff’s said accusation of the defendant’s “conduct” problem.
“唔係！我哋而家好興呀！一個字叫“Integrity”既問題，唔係，唔係淨係“Conduct”，係 “Integrity” [ B先生：我講定你講呀！]”
43. In the context of the Transcript, I find that the plaintiff has plainly endorsed Madam Yu’s comments. I note that the plaintiff continued to, inter alia, question the defendant’s reason for making the Mistake after Madam Yu’s comments. In particular, right after the plaintiff said that this matter had nothing to do with “integrity”, the plaintiff followed up with the comment that “你睇證據！我個名嚟架唔係你個名吖嘛 … 你仲喺度咁大聲！”. Even if the plaintiff did subjectively believe that he was not endorsing Madam Yu’s comments (which I do not believe to be the case)[8], there is no doubt that he gave those who had attended the AGM (including the defendant) such an impression.
44. Thus, I find that the plaintiff did attack the defendant’s character and conduct, and the reply-to-attack qualified privilege is engaged when the defendant issued the Email and published the Relevant Words in reply to the plaintiff’s attack.
(2) Whether the Relevant Words are fairly relevant to the accusations made against the plaintiff
45. The gist of the Relevant Words is as follows:-
(1) At the AGM, the plaintiff and Madam Yu made use of the Mistake to (i) deliberately exaggerate, (ii) recklessly accuse, and (iii) defame the plaintiff’s “conduct” and “integrity” (“Statement (1)”);
(2) Although at the time the defendant tried his best to explain his position, the plaintiff and Madam Yu did not want to seek any clarification but continued to attack him verbally (“Statement (2)”);
(3) The defendant felt that the plaintiff and Madam Yu’s action was tainted with an ulterior motive. He thus felt angry, helpless and disappointed about their behaviour (“Statement (3)”);
(4) The defendant hoped that the recipients of the Email could understand the above and realise that the accusations were unreasonable, and his name could therefore be cleared (“Statement (4)”).
46. I find that the Relevant Words were fairly relevant to the plaintiff’s accusations. In coming to this conclusion, I take into account, inter alia, the following matters.
47. I find that the Mistake was mainly caused by UPML. As stated above, UPML had admitted this in the UPML’s Letter.
48. I also find that the defendant was merely careless when he signed the Covering Form. This is a sensible conclusion – it would be too stupid a scheme for the defendant to deliberately take the proxy forms of the plaintiff in the hope that this would not be discovered. I do not find that the defendant’s conduct of not carefully checking the Covering Forms to be “reckless” or otherwise culpable – it was reasonable for the defendant to have trusted the staff members of UPML.
49. The correctness and relevance of the Relevant Words have to be considered with regard to these matters.
50. As to Statement (1), it is apparent from my conclusion above that I find that (i) both the plaintiff and Madam Yu tried to make use of the Mistake to attack the defendant, (ii) the accusations about the defendant’s conduct or integrity were unjustified, considering, inter alia, the fact that the defendant had only made an innocent mistake, and (iii) they did deliberately exaggerate the impact or magnitude of the Mistake. This is particularly in view of the timing of when the plaintiff raised the accusation, the wording and tone of the accusations made by both the plaintiff and Madam Yu, and the fact that the Mistake was rectified before the AGM.
51. Mr Ng contends that it was incorrect for the defendant to suggest that both the plaintiff and Madam Yu “defamed [the defendant’s] conduct and integrity”, as the plaintiff did not conspire with Madam Yu or otherwise endorse her comments.
52. As stated above, I found that the plaintiff did endorse Madam Yu’s comments. But in any event, I am of the view that, in the circumstances of the present case, the allegation that the defendant has a “conduct” problem is not materially different from the allegation that the defendant was without integrity – both the plaintiff and Madam Yu were suggesting that the defendant’s conduct was unreasonable or questionable, beyond mere carelessness. Further, one should not lose sight of the fact that it was the plaintiff who raised the issue of the defendant’s “conduct” problem, with Madam Yu echoing and amplifying the plaintiff’s accusation. It was therefore reasonable for the defendant to deal with their accusations together in the Email. This is well within the “considerable degree of latitude” referred to in Gatley (Supra).
53. As to Statement (2), as stated above, it was correct for the defendant to say that he did try to explain his position from time to time during the AGM, but the plaintiff and Madam Yu chose to continue to attack him irrespective of his explanation.
54. As to Statement (3), I find that (i) taking into account all the circumstances, the plaintiff and Madam Yu did make the accusations with an ulterior motive, namely, to bad-mouth the defendant before the commencement of the voting procedure and to reduce his chance of being re-elected. This was the reason why they chose to exaggerate and amplify the effect of the Mistake during the AGM; and (ii) in any event, the defendant truly believed, and it was reasonable for him to have formed such a belief, that the plaintiff and Madam Yu made the accusations with an ulterior motive. It was not surprising that the defendant thus felt angry, helpless and disappointed about their behaviour. The fact that the defendant harboured such strong feelings was clearly shown in the Transcript.
55. As to Statement (4), as stated above, I found that the accusations were indeed unreasonable.
56. In view of the above, I am of the view that the gist of the Relevant Words correctly reflected what had happened during the AGM, and the matters stated in the Email, including the Relevant Words, were fairly relevant and responsive to the plaintiff’s attack of the defendant’s character and conduct.
57. It is apparent from the Transcript that the defendant indeed had a humiliating experience during the AGM. It was also plain that the defendant did not (and could not) completely vindicate himself during the AGM, as, inter alia, that the plaintiff and Madam Yu (and potentially others who heard their accusations) were not receptive of the defendant’s explanation on the spot, and the staff members of UPML did not come forward to speak for him. It was therefore natural for him to have a strong desire to clear his name.
58. It was suggested that it might be sufficient for the defendant to clear his name just by sending the UPML’s Letter to the Recipients.
59. While with (considerable) hindsight, it might have been more prudent for the defendant to refrain from using the Relevant Words, he was entitled to use them as a matter of law, as he should be afforded “a considerable degree of latitude” in protecting his name, and is not restricted to doing the “bare minimum”. Indeed, it was not unreasonable for the defendant to explain in a covering email why the UPML’s Letter was sent to the Recipients.
(3) Whether the defendant published the Relevant Words with malice
60. The plaintiff’s main allegation is essentially that malice can be inferred by the fact that (1) the Relevant Words were false and unfounded, and the defendant knew or ought to have known this, and (2) the Email, which was not marked “private and confidential”, was sent to the members of the IO and UPML. [9]
61. Since I have found that the gist of the Relevant Words did correctly reflect what had happened during the AGM, the plaintiff’s main case falls away. It goes without saying that I also find that the defendant did not know, and ought not to have known, that the Relevant Words were false.
62. I do not understand why I can infer malice by the identity of the Recipients – in order to clear his name, the defendant would have to send the Email to the relevant people, ie the residents of Beacon Heights. Indeed, the fact that the Email was only sent to a small number of people tends to suggest that the defendant was acting reasonably and with restraint.
63. In any event, I find that the dominant purpose of the defendant’s publication of the Relevant Words was to clarify the misunderstanding caused by the attack by the plaintiff and Madam Yu during the AGM and to clear his name. I accept that the defendant indeed felt humiliated and aggrieved by the whole saga, and was concerned to clear his name once he obtained proof from UPML that the Mistake was not caused by him. The defendant was unshaken by the able cross-examination of Mr Ng on matters concerning the issue of malice, and I have no reason to doubt the defendant’s evidence on this matter at all.
64. It should be noted that it is not the plaintiff’s pleaded case that there were any previous grudges or bad blood between the plaintiff and the defendant. It is common ground that the plaintiff had little interaction (“冇兩句”) with the defendant before the AGM.
65. I accept the defendant’s evidence that he had no motive to injure the plaintiff’s reputation or image. Throughout the cross-examination by Mr Ng, I can see no convincing suggestion as to why the defendant would have any motive to injure the plaintiff.[10]
66. During the trial, Mr Ng raised a new point, namely, that there was animosity between the defendant and Madam Yu as they always had arguments at the meetings of the management committee. It is impermissible to raise this unpleaded case belatedly. But in any event, the defendant explained that there was no such animosity between him and Madam Yu, and no cogent evidence was adduced to rebut to his evidence on this issue.
67. By reason of the aforesaid, the defendant has made out the defence of qualified privilege.
68. I therefore conclude that:-
(1) The Relevant Words were defamatory to the plaintiff;
(2) Yet, the defendant can rely on the defence of qualified privilege, and the plaintiff’s claims are dismissed in their entirety.
69. It is therefore unnecessary to address the issues of justification and damages. However, for the sake of completeness, I will deal with them briefly below.
JUSTIFICATION
70. In establishing a defence of justification, only the substantial truth of the imputation needs to be proven by the defendants. In other words, the defendants have to prove that “the main charge, or gist of the libel” is true. A defence of justification would still succeed even if the publication is inaccurate in some minor respects provided that it is not one of material inaccuracy. Slight inaccuracy therefore would not defeat the defendants’ reliance on the defence of truth (United Muslim Association of Hong Kong & Others v Yusuf Yu & Others (unreported, HCA 640/2012, 14 May 2015, paragraph 106 & 107)).
71. Since I have concluded that the gist of the Relevant Words was correct,[11] it follows that the defence of justification is established.[12]
QUANTUM OF DAMAGES
72. The purposes and objectives for awarding damages for defamation are trite. For present purposes I rely on the summary given by the Court of Final Appeal in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others (2012) 15 HKCFAR 299.
“35. It is well established that an award of general damages in libel is compensatory in nature. As Sir Thomas Bingham MR pointed out in John v MGN Ltd, [[1997] QB 586 at 607] such awards have a threefold function:-
The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused.
36. Such damages are said to be “at large” since the exercise of assessment necessarily involves a substantial degree of subjectivity. As Lord Hailsham of St Marylebone LC stated in Broome v Cassell Co Ltd (No 1) [[1972] AC 1027 at 1071]:-
What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being “at large.”
37. It follows, as Lord Reid pointed out in the same case [at 1085], that:-
Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable – and different people will come to different conclusions.
That was echoed in this court’s judgment in Blakeney-Williams v Cathay Pacific Airways Limited [(2012) 15 HKCFAR 261 at para 93], which is to be handed down on the same day as the present judgment and which I have had the benefit of reading in draft.
38. In performing the assessment the court must take into account all the circumstances of the case relevant to determining what would be an appropriate compensatory sum. In Lord Herschell’s words:-
The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them. [Bray v Ford [1896] AC 44 at 53]
39. It obviously follows that it is not possible to list exhaustively all the circumstances that may bear on the assessment. However, certain factors have been identified as important. Thus, in John v MGN Ltd [[1997] QB 586 at 607], Sir Thomas Bingham MR stated:-
In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.
40. And in Jones v Pollard [[1997] EMLR 233 at 243], Hirst LJ listed as relevant, factors including the following:-
1. The objective features of the libel itself, such as its gravity, its prominence, the circulation of the medium in which it was published, and any repetition.
2. The subjective effect on the plaintiff’s feelings (usually categorized as aggravating features) not only from the publication itself, but also from the defendant’s conduct thereafter both up to and including the trial itself.
3. Matters tending to mitigate damages, such as the publication of an apology.
4. Matters tending to reduce damages, e.g. evidence of the plaintiff’s bad reputation, or evidence given at the trial which the jury are entitled to take into account …
5. Special damages.
6. Vindication of the plaintiff’s reputation past and future.
41. Pausing here, it seems clear that unless some principle of law operates to exclude it, the poor credibility of an accuser ought to be regarded as relevant to assessing general damages. Defamatory accusations originating from someone whose credibility is doubted is likely, as a matter of commonsense, to do less harm to the plaintiff’s reputation, cause less distress and require less to vindicate his reputation, than the same accusations originating from an authoritative and credible source. Unless excluded by some legal principle or as a matter of fact, low credence is a potentially important reason for a lower award.”
73. Mr Ng cited various cases in support of the plaintiff’s case on quantum, including, Charles Sin Cho Chiu v Tin Tin Publication Development Ltd (unreported, HCA 6662/1997, 11 January 2002), Oriental Press Group Ltd v Fevaworks Solutions Ltd [2012] 1 HKLRD 848, Lo Sam Shing v Li Fong (unreported, HCA 1803/2011, 12 March 2014), Yiu Shing Yin v Kwok Yik Ho & Another(unreported, DCCJ 4437/2016, 28 March 2018), 梁偉對倫國祥 (unreported, HCA 2657/2002, 11 September 2003), Kwan Siu Wa, Becky v Marla Susilo (unreported, DCCJ 5396/2007, 17 May 2011) and 東廬大樓業主立案法團 對 徐偉業 (unreported, DCCJ 3333/2011, 4 August 2014).
74. But these cases are not apposite.
75. The allegedly defamatory statements in these cases concern serious allegations of misconduct which are criminal, or at least highly dishonourable, in nature. Since the most important factor when assessing damages is the gravity of the libel, it is not surprising that relatively large awards were made in those cases.
76. On the other hand, the allegations contained in the Relevant Words are on any view minor. Putting the allegations at the highest, it only meant that the plaintiff wrongfully took advantage of the defendant’s mistake and made a mountain out of a molehill. The impact on the plaintiff’s reputation is minimal at best.
77. In this regard, I reject the plaintiff’s evidence that he suffered any pecuniary loss as a result of the publication of the Relevant Words. Such alleged loss has not been particularised in the plaintiff’s pleaded case and his witness statement. During cross-examination, he alleged that he had work partners who lived in the same estate, and negotiations between them gradually stopped, probably because those partners started to doubt the plaintiff’s credibility. I give no weight to this vague and highly speculative evidence. In any event, it is most unlikely that he would suffer any pecuniary loss simply by reason of the publication of the Email.
78. It should also be noted that the plaintiff was not re-elected as the IO member even before the Email was published.
79. I agree with Mr Lam that the authorities referred to in paragraphs 47 to 54 of Choi Yuet Wing v Tang Sai Cheong [2014] 5 HKLRD 260 are more applicable to the present case. This is also plainly not an appropriate case to award aggravated or exemplary damages.
80. Having carefully considered all the circumstances in accordance with the guidance given in the authorities, in particular, the fact that (1) the allegations were not serious, (2) the impact or damage to the plaintiff was minimal, (3) the Email was only sent to a small number of people, and (4) to date, the defendant has not apologised, if I were wrong on the issue of liability, I would award HKD$10,000 to the plaintiff.
ORDER
81. By reasons of the foregoing, I dismiss the plaintiff’s case.
82. I make an order nisi that the plaintiff do pay the defendant the costs of this action, to be taxed if not agreed. Having considered the complexity of the issues involved, I also grant certificate for one counsel. This costs order nisi will become absolute unless an application to vary the same is made within 14 days from the date hereof.
83. Last but not least, I would like to thank Mr Ng and Mr Lam for their able assistance.
(Jeffrey Chau)
Deputy District Judge
Solicitor Mr Ng Man Kin of Kwok, Ng & Chan Solicitors for the plaintiff
Barrister Mr Kenneth K Y Lam and Mr Anson Tso, instructed by Lui & Law Solicitors, for the defendant
[1] The plaintiff’s counsel has confirmed that the plaintiff will not rely on “innuendo”
[2] See paragraph 4 of the Statement of Claim and paragraph 4 of the Defence
[3] For avoidance of doubt, I have considered all the issues raised by the parties in their respective submissions. The fact that I have not specifically dealt with them does not mean that I have not taken them into account.
[4] In fact, the plaintiff’s evidence is that he believed the defendant deliberately or “arbitrarily” signed the Covering Letter. This is consistent with the plain meaning of the words that the plaintiff used.
[5] The plaintiff’s closing submissions at paragraph 40
[6] I also observe that the plaintiff has consistently taken a high-handed approach when handling this matter: shortly after he had knowledge of the publication of the Email (dated 25 December 2016), he sent a legal letter to the defendant without any prior private communication.
[7] Given my finding above in respect of the meaning of the phrase “conduct” problem, it is technically not necessary to resolve this issue for the purpose of determining whether the plaintiff did attack the defendant’s character or conduct. Yet, as will be made plain below, this factual dispute is also relevant to the resolution of other issues.
[8] Mr Ng suggested that the various matters had not been put to the plaintiff by Mr Lam. But the subjective intent of the plaintiff is largely immaterial to the issues in the present case, and I came to the conclusion relying on the objective evidence before this court (except on issues such as malice for which the court necessarily has to consider the evidence of the defendant).
[9] See generally the Statement of Claim paragraph 7(n)-(s) and the Reply, paragraphs 6 and 7
[10] eg having lost the election, the defendant “lost face” and tried to shift the blame to the plaintiff
[11] See in particular paragraphs 45 to 58 above
[12] The plaintiff did not seek to argue that the Relevant Words were statements of opinion which concerned value judgments that could not be said to be true or false. See Cruddas v Calvert & Ors [2013] EWHC 2298 (QB) at §56. In any event, I agree that the Relevant Words were indeed statements of fact (which I have found to be true).
香港誹謗官司之畢架山花園陳揚新大勝畢架山花園陳清華 