Christine Diaz also known as Christine Samson v. Choi Jeffrey Tse Fu
Read the full judgment text of DCCJ 1323/2013 on BabelCite. This District Court judgment was delivered on 5 February 2016.
1. This is the plaintiff’s claim against the defendant based on defamation.
Cites 5 cases
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DCCJ 1323/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1323 OF 2013 --------------------
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--------------------- JUDGMENT --------------------- 1.This is the plaintiff’s claim against the defendant based on defamation. The issues 2.The issues in this case are as follows:-
BACKGROUND 3.The facts of this case are largely undisputed. 4.The plaintiff (“Ms Diaz”) is a renowned professional singer and vocal instructor. In 1965, she formed the band called D’Topnotes. Subsequently in the 1986, she formed the group called The Samson Sisters. 5.Ms Diaz began her career as a vocal instructor in 1990. During 2004 to 2009, she was a certified Speech Level Singing (“SLS”) Instructor. Over the years, Ms Diaz developed her own method of vocal training and named it the “Samson’s Vocal Technique”. In or around September 2009, Ms Diaz established a vocal training studio called “Christine Samson Music and Arts Studio”. 6.The defendant (“Mr Choi”) is a vocal instructor and a consultant. He started his vocal training career in 2010. He was a certified SLS instructor from 2010 to 2013. In 2013 he received a certificate issued by the Institute for Vocal Advancement (“IVA”). 7.On or about 28 January 2013, Ms Diaz and her staff received an email from Fiona Fu with a copy of the Edited Recording attached. It was subsequently discovered the Edited Recording is an edited version of the Original Recording. 8.Mr Choi claims he does not know anyone named Fiona Fu and does not have a student by the same name. He denies having authorized the publication of the Edited Recording and denies having made defamatory statements about Ms Diaz. 9.The salient extracts of the Edited Recording are as follows:-
10.In order to clarify the matter with Ms Diaz, Mr Choi produced a copy of the Original Recording to Ms Diaz. The Original Recording is recording of the lesson Mr Choi gave to his student (“Karen”) on 27 August 2012. The salient extracts of the Original Recording are as follows:-
11.Mr Choi explained the reference to Ms Diaz was only to illustrate what a “light mix” voice sounds like. His comments about “elderly teachers” using the wrong technique are limited to teachers who teach opera singing. He did not intend for the statements to be defamatory of Ms Diaz and did not comment on whether “light mix” voices were “not good” or were wrong. He knew Ms Diaz was a qualified SLS instructor and therefore could not have intended to make any defamatory remarks about her teaching methods as being unscientific. WHETHER THE STATEMENTS MADE IN REFERENCE TO MS DIAZ IN THE ORIGINAL RECORDING ARE DEFAMATORY The law 12.Words are defamatory if the effect of such words would:-
13.The knowledge and the intention of Mr Choi in uttering the words are immaterial and are only relevant to the question of malice when considering the defence of qualified privileged: see paragraph 3.15 Gatley on Libel and Slander. As stated by Russell LJ in the case of Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331page 354: “Liability for libel does not depend on the intention of the defamer; but on the fact of defamation.” 14.In determining whether the statements have a defamatory meaning, the court must determine the natural and ordinary meaning of the words used: see Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd and others [1996] 4 HKC 519 at 526G. The court shall have regard to the context in which the words were used and to read the publication as a whole, taking into account any implications that a reasonable reader would draw from the words: see paragraphs 3.18 and 3.30 Gatley on Libel and Slander. 15.The test set out in Capital and Counties Bank v Henty 5 CPD 539 as approved by Greer LJ in the case of Cassidy v Daily Mirror Newspapers Ltd is as follows:-
16.In determining what an ordinary and reasonable person would find defamatory, Lord Reid stated the following in the case of Rubber Improvement Ltd v Daily Telegraph Ltd [1964] A.C. 234 at pages 258 and 259:-
The natural and ordinary meaning 17.Having considered the Original Recording, I am of the view the statements made by Mr Choi in the Original Recording, in their natural and ordinary meaning, are defamatory of Ms Diaz. 18.I have considered Mr Choi’s interpretation of the statements made about Ms Diaz and the submissions of both counsel. I do not propose to deal with every submission but will deal with the salient submissions instead. 19.Defence counsel submitted the conversation should be looked at in three stages. He further submitted that in the whole of the conversation there was only one fleeting reference to Ms Diaz in which Mr Choi merely gave an example of what singing in a “light mix” voice sounds like. However I disagree with defence counsel’s submissions. I am of the view the conversation must be looked at and assessed as a whole. To separate the different parts of the conversation as if each part is independent is to impose artificial distinctions within the conversation. I do not accept the suggestion that the reference to Ms Diaz is only limited to the few sentences uttered at the end of the excerpted recording. An ordinary and reasonable man does not assess each statement separately but assesses and reads the conversation as a whole to form an impression. 20.On a reading of the conversation as a whole, an ordinary and reasonable person would classify Ms Diaz as an “elderly teacher” whose teaching methods are based on abstraction and imagination. In his explanation given at counter 25:33 of the Original Recording, Mr Choi labels “elderly teachers” as those who received their teaching from teachers who had not been privy to the scientific methods of vocal training. Mr Choi specifically explained that scientific techniques were only developed in the last 30 years. (“你聲帶嘅嘢science 係呢三十年嘅嘢。咁如果而家你計，而家好多先生上咗年紀呢，咁佢哋嘅上咗年紀嘅佢哋嘅先生咁咪更老喇喎，咁就唔止三十年喇喎”). The said explanation set out at counter 25:33 implies that since “elderly teachers” learnt from teachers who were not privy to the scientific methods, “elderly teachers” may have the correct concept but their “way” or technique is wrong. On a plain reading of the conversation, the reference to opera teachers was used by Mr Choi as an example of how “elderly teachers” were wrong. (“咁所以已前最traditional 你去學opera 呀，嗰一咋呢有好多concepts，佢哋教嘅 technique 應該咁講係錯嘅。佢哋嘅 concept 可能正確,但係佢哋教嘅 way 係錯，因為未 scientifically proven，佢唔知點做。”). The whole purpose of the explanation was to tell Karen her previous teacher was wrong to have instructed her to use the “belting” technique to sing loudly instead of using what Mr Choi terms as a “chest mix” voice. Furthermore, Mr Choi plainly stated in his witness statement he meant “some teachers in the earlier generations had used imaginary and/or descriptive training” (see paragraphs 55 and 56 of his witness statement). The witness statement does not say that such comments were only limited specifically to teachers of opera singing. Having considered the whole of the conversation, I do not accept Mr Choi’s assertion that his comments at counter 25:33 were directed at opera teachers only. 21.I find that an ordinary and reasonable person would further infer Ms Diaz fell into the category of “elderly teachers” by reason of Ms Diaz’s age and the fact that she has been in the music industry for more than 30 years. I find the ordinary and reasonable person would understand Ms Diaz’s method of teaching to be unscientific and abstract, like those of the “elderly teachers”. 22.In respect of the comments made about those from Berkeley/ Berklee, Mr Choi blatantly proclaimed such persons were wrong in many aspects (“Berkeley/Berklee 嗰啲好多錯嘅。”). In particular, Mr Choi commented those from Berkeley/Berklee do not know how to produce a “chest mix” voice (“Berkeley/Berklee 佢哋唱 mix 都係輕嘅。但係只不過我覺得係佢唔識個方法點樣整 chest 啲個 mix”). This is clearly an imputation as to the lack of knowledge and/or lack of competence of those from Berkeley/Berklee. I find an ordinary and reasonable reader/listener would infer those from Berkeley/Berklee, whether teachers, students or graduates, are wrong in their singing and/or teaching techniques. 23.At counter 26:46 of the Original Recoding, Mr Choi directly associated Ms Diaz with those from Berkeley/Berklee. He stated Ms Diaz was “like that also” (“即係佢都係其實”), in that she taught people to sing in a “light mix” voice. He even went further to say that is probably why people would misunderstand mix to necessarily be “light mix” (“咁所以有可能有啲人會誤會咗 mix 係一定係輕聲”). When an ordinary and reasonable person reads or listens to the whole conversation, in particular to what Mr Choi said at counters 26:26 and 26:46, one would associate Ms Diaz with those from Berkeley/Berklee. One would further conclude Ms Diaz, like those from Berkeley/Berklee, does not know how to teach people to sing in a “chest mix” voice and her method of teaching causes people to misunderstand singing in a mixed voice necessarily means singing in a “light mix” voice. 24.By reason of the matters set out above, I find the plain and ordinary meaning of the statements made by Mr Choi in the Original Recording are as follows:-
25.It is settled law that imputations on the knowledge or competency of businessman or a professional can amount to defamation. In the case of Drummond-Jackson v British Medical Association1 WLR 688, Lord Pearson said at page 698H:-
26.Mr Choi’s comments clearly had the effect of imputing lack of knowledge and skill on Ms Diaz’s professional capacity as a vocal trainer. 27.I therefore find the statements made in the Original Recording to bear the defamatory meanings as set out in paragraphs 8(a), (b), (d), (e), (f), (g)(i) – (ii), (g)(iv)-(v), and (h) of the Amended Statement of Claim. 28.I do not find the statements in the Original Recording to bear the defamatory meaning set out in paragraphs 8(c) and (g)(iii) of the Amended Statement of Claim as the pleaded meaning is too broad. I am of the view that the defamatory meaning of the statements is much more specific than the meaning set out in paragraphs 8(c) and (g)(iii) of the Amended Statement of Claim. WHETHER THE STATEMENTS MADE IN REFERENCE TO MS DIAZ IN THE EDITED RECORDING ARE DEFAMATORY 29.As can be seen, the statements at counters 25:33 and 26:10 of the Edited Recording are edited from the statements at counters 25:33, 26:26 and 26:46 of the Original Recording. 30.The statements as edited in the Edited Recording are rearranged such that Mr Choi appears to have directly criticized Ms Diaz. 31.On a reading of the Edited Recording, the natural and ordinary meaning of the words is defamatory of Ms Diaz in that Mr Choi said her method of teaching is wrong and has not been scientifically proven. QUALIFIED PRIVILEGE AND MALICE 32.The parties do not dispute the occasion on which Mr Choi made the statements is one of qualified privilege. Counsel for Ms Diaz submitted the defamatory statements do not attract qualified privilege because the comments were unnecessary or irrelevant to the discharge of Mr Choi’s duties to his student. Alternatively, counsel for Ms Diaz submitted the privilege is lost by reason of malice. The law 33.The law protects the freedom of communications where the communication is made in the interest of society or for some common interest. However, the privilege is lost once the maker of the statement uses the occasion for some purpose other than that for which the law gives protection: see Horrocks v Lowe [1975] AC 135 and paragraph 14.7 Gatley on Libel and Slander. 34.In the case of Lee Ching v Lau May Ming [2007] 3 HKLRD 623 at 663, the Honourable Mr Justice Jeremy Poon (as he then was) explained as follows:-
35.At page 665, the judge said:-
Whether irrelevant comments are protected under qualified privilege 36.By reason of the principles set out in Horrocks v Lowe,as reiterated in Lee Ching v Lau May Ming, the relevance of a statement to the privileged occasion only goes to whether the court should draw an inference of malice against the statement maker. Relevance does not go to whether a statement is protected by qualified privilege. Hence I do not accept the submission that the statements have lost the protection of the privileged occasion by mere reason of being irrelevant. Whether Mr Choi was malicious in making the defamatory statements in the Original Recording 37.The test for malice in the context of qualified privilege is set out in the case of Horrocks v Lowe at page 149G – 151B, where Lord Diplock states:-
38.Having considered the conversation as a whole, the evidence of the parties, and submissions of counsel, I reject Mr Choi’s interpretation of the statements made in the Original Recording. I further reject his explanation for making such statements. My reasons are set out below:-
39.By reason of the matters set out above, I do not accept Mr Choi’s explanation and interpretation of the statements made in the Original Recording. Moreover, I do not accept Mr Choi had no intention to defame Ms Diaz. 40.In respect of whether this court can draw the inference of malice, defence counsel submitted this court cannot draw such an inference because there is “no substance” in any of the particulars pleaded for this court to draw the necessary inference. However, with due respect to defence counsel, I disagree. 41.The particulars of malice are pleaded in paragraphs 5(a) – (h) of the Re-Amended Reply. In summary, the particulars pleaded to prove malice are as follows:-
42.As stated in Horrocks v Lowe, the misuse of a privileged occasion and the lack of honest belief in the truthfulness of the statements are relevant factors when considering whether there is malice. The pleading relating to the irrelevance of the comments goes to whether the occasion was misused. The pleading of lack of honest belief or recklessness as to the truth of the statements goes to Mr Choi’s motive for making such statements. As for the allegation Mr Choi wrongfully held himself out to be the only certified SLS instructor in Hong Kong, I note Ms Krystal Diaz (Ms Diaz’s daughter and witness in the trial) conceded such acts are irrelevant to the defamatory statements made in the Original Record. I agree with Ms Krystal Diaz’s observation. 43.In the present case, I find the comments on the lack of competence or knowledge in the use of a “chest mix” voice of those from Berkeley/Berklee were unnecessary in Mr Choi’s explanation of the use of a “chest mix” voice. Furthermore, Mr Choi admitted he was only referring to the method used to increase the volume of the voice when he claimed those from Berkeley/Berklee are “wrong in many aspects”. This means the use of the phrase “many aspects” only meant one aspect. Hence, Mr Choi’s comments about those from Berkeley/Berklee were exaggerated. 44.In respect of Mr Choi’s comments at counter 26:46, I find Mr Choi was reckless as to the truth in his assertion. Mr Choi admits he does not know Ms Diaz personally and knows nothing about her, other than the fact that she was a famous singer and she was an SLS instructor. In paragraph 60 of his witness statement, Mr Choi outright admits he does not know how Ms Diaz teaches singing. In such circumstances, Mr Choi had no basis to conclude Ms Diaz’s method of teaching was misleading or wrong. 45.Having considered the derogatory nature of such remarks, the lack of factual basis for such comments, and the lack of necessity for making such statements in providing an explanation as to mixed voices, I find the dominate improper motive of Mr Choi’s statements was to disparage the teaching method of “elderly teachers”, those from Berkeley/Berklee, and Ms Diaz by associating her with the “elderly teachers” and those from Berkeley/Berklee. 46.I therefore find Mr Choi was malicious in making the statements in the Original Recording and find such statements to fall outside the protection of the privileged occasion. Whether Mr Choi should be held liable for the defamatory statements made in the Edited Recording 47.I have considered the submissions of counsel. I note counsel for Ms Diaz argues that since the sting of the utterances have been conveyed and repeated in the Edited Recording, Mr Choi should be liable for the Edited Recording. However I am of the view this is an incorrect summary of the proper test to be adopted. 48.In considering whether Mr Choi should be liable for the Edited Recording, the test is summarized in paragraph 6.52 Gatley on Libel and Slander as follows:-
49.Having considered the evidence, I am of the view that Mr Choi should not be held liable for the Edited Recording. 50.Firstly, the lessons were private lessons held between Mr Choi and his student. It cannot be said he must have been aware that such recordings would be republished to the public. Furthermore, I do not accept Mr Choi could or should have appreciated there was significant risk of his student republishing the contents of the lesson, in whole or in part. As conceded by Ms Diaz, she expects her students to keep the recording of the lesson for their own use. The mere fact that Mr Choi failed to take steps to warn the students from distributing or reproducing the recorded lesson does not necessary mean Mr Choi should have appreciated there was a significant risk of republication. 51.Secondly, I find Mr Choi could not have appreciated there was any significant risk that someone would alter the Original Recording such that the meaning of the altered message is substantially different from the original version. The Edited Recording deleted all references to those from Berkeley/Berklee and their “light mix” singing techniques. Furthermore, the reference to Ms Diaz in the Edited Recording is such that Mr Choi directly associated her with the “elderly teachers”. However in the Original Recording, Mr Choi had directly associated Ms Diaz with those from Berkeley/Berklee and their “light mix” singing techniques. 52.In such circumstances, I am of the view Mr Choi should not be held liable for the Edited Recording. 53.By reason of the matters set out above, I find Mr Choi had published defamatory words against Ms Diaz through the Original Recording. I allow her claim only in so far as the Original Recording. DAMAGES 54.Ms Diaz seeks general damages from Mr Choi. 55.An award of general damages in cases involving defamation is to serve 3 purposes:-
56.The matters to be taken into account when considering the level of the award to be made include the following:-
57.I note Ms Diaz conceded that as far as she is aware the Original Recording was heard by herself and her daughter only. There is no further evidence that other members of the public have listened to the Original Recording prior to the commencement of these proceedings. Hence the publication of the Original Recording was limited to a small group of persons. 58.Although it is true that Ms Diaz’s reputation is of paramount importance to her vocal training school and to herself personally, there is no evidence to show the defamatory statements have caused Ms Diaz to lose students or have deterred students from coming to her classes. 59.I have considered the authorities on damages awarded in comparable cases submitted by counsel for Mr Choi. There are no authorities on the appropriate damages to be awarded submitted by counsel for Ms Diaz. 60.I do not accept defence counsel’s submission that the circumstances of the case are of such trivial nature so as to only warrant the award of nominal damages. Having considered the authorities and submissions of both counsel, I am of the view the present case is akin to the case of Yiu Hon Lam v Chan Yu Chun, DCCJ 5351/2005 (unrep) in terms of the limited publication of the defamatory statements and in the gravity of such statements. I am of the view the appropriate sum to award for general damages in the present case is $10,000. 61.I therefore order Mr Choi to pay general damages in the sum of $10,000. INJUNCTION 62.Counsel for Mr Choi submitted an injunctive relief should not be granted since there is no evidence that Mr Choi is likely to repeat the defamatory words. However I disagree. Having heard Mr Choi give evidence in court, it is apparent he is prone to using names of well-known singers or artists to elaborate his statements. 63.I find it is appropriate to grant the injunctive relief as sought by Ms Diaz. I therefore order an injunction be granted in the following terms:-
COSTS 64.In considering the appropriate costs order to make, I am of the view costs should follow the event. Furthermore, although the case involves high profile lay-clients, I am of the view the complexity of the case only warrants certificate for one counsel. 65.I make a costs order nisi that the defendant do pay the plaintiff’s costs of this action to be taxed if not agreed, with certificate for one Counsel. Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.
Mr Simon K C Lam & Ms Wendy Yeung, instructed by Pang, Wan & Choi, for the plaintiff. Mr Erik Shum, instructed by F Zimmern & Co, for the defendant. |
Cases cited in this judgment
Further hearings and rulings under DCCJ 1323/2013