Christine Diaz also known as Christine Samson v. Choi Jeffrey Tse Fu

DCCJ1323/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1323 OF 2013

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DECISION

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1.This is the defendant’s application for leave to appeal against the judgment handed down on 5 February 2016 (“the Judgment”).

2.The background of this case is set out at paragraphs 4-11 of the Judgment, of which I shall not repeat. I shall adopt the same abbreviations used in the Judgment.

3.The defendant raises 7 intended grounds of appeal.  I shall deal with each intended ground in turn.

Grounds 1 and 2: Wrong assessment of damages

4.Defence counsel makes 2 submissions:-

(1) The basis of my assessment of damages is erroneous because the assessment was based on the finding that the Original Recording was published to the plaintiff.  In particular, defence counsel referred to paragraph 57 of the Judgment.

(2) I had erred in holding the defendant liable for the Original Recording as the said recording was disclosed to the plaintiff in the course of these proceedings.

5.With respect to the submission the basis of assessment of damages is erroneous, I believe defence counsel has misunderstood the relevant paragraph of the Judgment.  

6.Although I concede the sentence at paragraph 57 of the Judgment stating, “I note Ms Diaz conceded that as far as she is aware the Original Recording was heard by herself and her daughter”, is a partial misstatement in that Ms Diaz only conceded she heard the Original Recording but did not say her daughter heard the Original Recording, I did not base the assessment of damages on a finding that the Original Recording was “published” to the plaintiff. 

7.I would add that although the plaintiff had not expressly stated her daughter had heard the contents of the Original Recording, defence counsel and I have presumed her daughter must have heard the said recording before the trial commenced due to the daughter’s involvement in the proceedings. This is evident at paragraph 8 of defence counsel’s submissions for leave to appeal (“Appeal Submissions”) where counsel submitted “…… the plaintiff presumably heard and shared it [the Original Recording] with her daughter.” 

8.Counsel for the plaintiff suggested I could use the slip rule to amend the reference in paragraph 57 of the Judgment of “her daughter” to “Karen”. Counsel for the plaintiff argued that once the reference is amended, defence counsel’s arguments would no longer stand.  However, since the reference is not a matter of mere punctuation or misspelling, I was of the view it would be inappropriate as such use of the slip rule may pre-empt one of the intended grounds of appeal relied on by the defendant in his application for leave to appeal. I therefore declined to use the slip rule.

9.The point being made at paragraph 57 of the Judgment is that the Original Recording was heard by a small and limited group of persons - one of whom is not the plaintiff.  The defendant admits that the defamatory remarks were published to Karen. Even if the plaintiff is included as one of the persons having heard the Original Recording, the evidence of the present case shows that the Original Recording was only heard by 2 persons at most.

10.In considering the appropriate damages to be awarded, I found the present case similar to that of Yiu Hon Lam v Chan Yu Chun, DCCJ 5351/2005 (unrep); a case cited by defence counsel in his closing submissions.  In the case of Yiu Hon Lam, the defamatory remarks were made in the presence of 2 persons.  The judge ruled that the appropriate sum of damages to award is $10,000. Drawing an analogy between the case of Yiu Hon Lam and the present case, I found the evidence shows the Original Recording was only heard by “a small and limited group of persons” – that is, at most 2 persons. Hence for reasons already set out in the Judgment at paragraphs 55 to 60, I found the sum of $10,000 to be an appropriate sum to be awarded as general damages.

11.By reason of the matters set out above, I do not accept the there are reasonable prospects of success on the intended ground of appeal on damages.  

12.In respect of defence counsel’s submissions at paragraph 8[1], I note this issue was never raised in the course of the trial.

13.Defence counsel sets out the defendant’s “case” and issues in dispute at paragraphs 8 to 11[2] of his Opening Submissions.  The only issue raised about the Original Recording is whether the plaintiff is able to prove the words spoken bore the defamatory meaning as pleaded.  There was no issue raised as to whether the defendant could be held liable on the Original Recording because it was disclosed by the defendant as part of the discovery process.

14.Similarly, defence counsel did not take issue in his Closing Submissions, as to whether the defendant could be held liable for the Original Recording if such was disclosed during the discovery process.

15.By reason of the matters set out above, I fail to see how defence counsel is now permitted to raise the said issue in support of this intended ground of appeal. 

16.I do not find there to be any reasonable prospect of success on these intended grounds of appeal.

Ground 3: Err in holding the statements are defamatory.

17.I shall not repeat all of counsel’s submissions.  In summary,  defence counsel makes the following salient submissions under this intended ground of appeal:-

(1) I had erred in finding of facts (Grounds 3(1)-(3))

(2) I have failed to consider the defendant’s explanation as to why he made the comments (Ground 3(4))

18.In respect of the challenge to my finding of facts, the Court of Final Appeal in the case of Ting Kwok Keung v Tam Dick Yuen & others (2002) 5 HKCFAR 336 has reiterated the following passage from the case of Piglowska v Piglowska [1999] 1 WLR 1360 at page 1372D-F:-

“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

19.As stated in the Judgment, I have considered the conversation as a whole (see paragraph 20 Judgment) and have set out my reasons for finding the statements to be defamatory in paragraphs 17 to 28 of the Judgment.  The Judgment sets out the reasons behind my findings and I do not intend to repeat the same.

20.As for the submission there was no evidence to show the student knew of the plaintiff’s age and background, I fail to see any merit in this submission.  I have already set out my explanation as to the purpose of the whole conversation and the reasonable inference one could draw from the use of the term “elderly teachers” (see paragraph 20 and 21 Judgment).

21.In respect of the submission that I have failed to consider the lesson as a whole and the context in which the plaintiff’s name was mentioned only once, I reiterate paragraphs 17 to 28 of the Judgment in which I have set out my reasons for my findings.  Furthermore, having considered the defendant’s evidence and explanation about the reference made to the plaintiff, I rejected his explanation.  My reasoning is set out in paragraph 38 of the Judgment.

22.Having considered the submissions of defence counsel, I do not find there to be any reasonable prospects of success on this intended ground of appeal.

Ground 4: Err in inferring malice

23.Defence counsel submitted the following:-

(1) I have erred in finding as a fact that the comments against those from Berklee/Berkley were unnecessary (Ground 4(1)).

(2) I had adopted the incorrect test:-

(a) in inferring malice (Grounds 4(2) and (7));

(b) by finding the defendant was reckless as to the truth of his comments (Ground 4(4)).

(3) I had failed to consider whether the defendant had no belief in the truth of his comments (Ground 4(5)).

(4) I had failed to consider the defendant’s explanation (Ground 4(6)).

24.I shall not repeat the reasons set out in the Judgment for my finding of facts.  Suffice to say, I have set out the reasons as to why I inferred malice on the defendant at paragraphs 38-46 of the Judgment.

25.In respect of the submission that I had applied the wrong test in finding there was a “lack of necessity for making such statements in providing an explanation as to mixed voices”, I fail to see any merit in this submission.  As already stated in the Judgment, I have considered the conversation as a whole.  I had also considered the purported reasoning behind the conversation as explained by the defendant at paragraphs 51 to 54 of his witness statement. In summary, the purported purpose of the comments made by the defendant was to explain to Karen the misconception that a mixed voice must be lighter or weaker and the misconception that belting was the same as using a chest voice.

26.Although defence counsel states the comments were relevant and necessary to the defendant’s teachings, there is no reasonable explanation as to how and why his comments on whether those from Berklee/Berkley were “good” or not were necessary in his explanation about chest mixed voice or mixed voice. Having considered the purported purpose of the conversation as stated by the defendant in his witness statement and the context of the conversation as a whole, I found the comments made against those from Berklee/Berkley were unnecessary to achieve his purported purpose of explaining the operations or techniques of a “chest mixed voice”.

27.In respect of the submissions relating to the test adopted for inferring malice against the defendant, the test is set out clearly in the case of Horrocks v Lowe [1975] AC 135 at page 150B where Lord Diplock states,

“If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of law, treated as if he knew it to be false.”

28.I have set out at paragraphs 43 and 44 of the Judgment why I found the defendant to have exaggerated his comments and was reckless as to the truth of his comments. 

29.In respect of the submission as to whether I have considered the defendant’s explanation, I have considered the defendant’s explanation regarding the statements he made and I have set out in detail why I did not accept his explanation (see paragraphs 38, 43 to 45 of the Judgment).   

30.By reason of the matters set out above, I fail to see any reasonable prospects of success on this intended ground of appeal.

Grounds 5 and 6: Err in granting the injunction

31.Defence counsel submitted the court was not entitled to find the defendant is prone to using names of well-known artists or singers to elaborate his statements.  With respect to defence counsel’s submissions, I disagree.

32.During his evidence in court, the defendant had cited the following artists’ names to explain what a light voice is: Michael Jackson, Sandy Lam Yik Leen, Faye Wong, Bee Gees.  In the Original Recording he mentioned the names of Mariah Carey and Celine Dion to explain what is a chest mixed voice. At the end of the excerpted Original Recording, he mentioned the plaintiff’s name to elaborate on those who taught others to sing in a light mixed voice. It is apparent the defendant has a tendency to mention names of other artists when offering explanations about light mixed voice and chest mixed voice.  In such circumstances, I fail to see any merit in the submission that the court was not entitled to come to the view that the defendant was prone to using names of well-known artists (including the plaintiff) to elaborate his statements.

33.Paragraph 9.41 of Gatley on Libel and Slander (12^th ed) states:-

“The court will grant such an injunction if it is satisfied that the words are injurious to the claimant, and there is reason to apprehend further publication by the defendant.”

34.By reason of the matters set out above, I was of the view the defendant is prone to mentioning different artists’ names in his explanations on light and/or chest mixed voice. In such circumstances, since he commented that the plaintiff was a person he used an example as teaching students to sing in a light mixed voice, there is no certainty he would not mention the plaintiff’s name again when making similar explanations in the future. Hence I was of the view that an injunction was an appropriate remedy to grant in the present case. Furthermore, the injunction granted has been restricted to reflect the same. 

35.I therefore do not see any reasonable prospects of success on these intended grounds.

Ground 7: Costs

36.Since I do not find there to be any reasonable prospects of success on the intended grounds of appeal, I do not accept there is any merit in defence counsel’s submissions on costs.  

Summary

37.By reason of the matters set out above, I refuse the defendant’s application for leave to appeal and dismiss the defendant’s summons dated 26 February 2016.

38.Costs shall follow the event. I make a costs order nisi that the defendant do pay the plaintiff’s costs of the summons dated 26 February 2016, 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 KC Lam & Ms Wendy Yeung, instructed by Pang, Wan & Choi, for the plaintiff

Mr Erik Shum, instructed by F Zimmern & Co, for the defendant