Multi-winner Investment Ltd and Another v. Lau Ming Yee

HCA 880/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 880 OF 2011

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JUDGMENT

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1.This is an action for libel. The matter arose from certain disputes between the owners of Mei Sun Building in Tai Po (“the Building”) relating to the method of calculating the contributions for the costs of the renovation works in the Building.

2.The 1^st Plaintiff, Multi-Winner Investment Limited (“Multi-Winner”), is the registered owner of the entire 3^rd floor of the Building.  The 2^nd Plaintiff, Mr Cheng Chi Hung (“Mr Cheng”), is and was at all material times one of the 9 shareholders and one of the 4 directors of Multi-Winner.  Mr Cheng is and was the majority shareholder of Mulit-Winner owning 55% of its shares.

3.The Defendant, Madam Lau Ming Yee (“Madam Lau”), is and was at all material times the owner of Unit 9B of the Building.  From 2006 to 2010, she served as the Secretary of the Management Committee (“MC”) of the Incorporated Owners of the Building (“IO”). On 24 October 2010, she was elected to serve as the Chairperson of the MC.  Madam Lau was the Chairperson of the MC at the time when the letter, the subject matter of this action (“the Subject Letter”), was sent by her to the owners of the Building on 24 February 2011.

4.The Plaintiffs complain that the following words contained in the Subject Letter (“the Words”) are defamatory against them:

「... 3/F 法人業主是要以管理費比例作攤分大維修費用，這與09年業主大會議決相違背的！本人百思不得其解的是3/F 法人業主為什麼要用數拾萬元來引誘管委會出賣大多數業主之權益？幸好管委會意念清晰，否則除被大多數業主離棄外，有機會被 ICAC 請飲咖啡...」

The English translation is as follows:

“... the body corporate owner of the 3rd Floor seeks to use the proportion of management fees as the basis for the contribution of the major renovation expense. This is contrary to the owners’ resolution passed in 2009. I could not decipher why the body corporate owner of the 3rd Floor uses a few hundred thousand dollars to seduce the management committee members to betray the rights and interests of the majority owners of the Building? Fortunately, the management committee members have clear mind. Otherwise, apart from their being deserted by the majority owners, there would be a chance of them being invited by the ICAC to drink coffee ...”

BACKGROUND LEADING TO THE ISSUE OF THE SUBJECT LETTER

5.There is no serious dispute between the parties as to the background leading to the issue of the Subject Letter.

6.The Building is one of 25 storeys and was built in 1984.  The ground, 1^st, 2^nd and 3^rd floors are for commercial use whilst the 4^th to 24^th floors are for residential use.

7.In 2009, a proposal was made for the IO to carry out major maintenance and renovation works of the common part of the Building (“the Renovation Works”).

8.There is some uncertainty in the terms of the Deed of Mutual Covenant of the Building (“DMC”), and a dispute arose as to how the owners should share the costs of the Renovation Works. One argument was that the owners’ contributions should be calculated on the same basis as their contributions for management expenses, which is provided for under Clause 7(b) and the 3^rd Schedule of the DMC.  However, it is unclear as to whether such method of calculating management fees also covers the contributions for major renovation works of the Building.  The opposing view was that the owners’ contributions should be calculated on the basis of the owners’ respective undivided shares in the Building.  The former method would favour the owners of the ground to 3^rd floors, whereas the latter method would favour the owners of the 4^th to 24^th floors.

9.There was an additional complication.  Under the 3^rd Schedule of the DMC, there are 8 residential units from each of the 4^th to 24^th floors (totally 168 units) and 1 unit for each of the 2^nd and 3^rd floors and the monthly contribution per unit is specified therein.  However, the numbers of units for the ground and 1^st floors are omitted.

10.The MC had sought legal advice for the proper method in calculating the contributions for the costs of the Renovation Works. However, it seemed that the legal advisors could not provide a definite answer in view of the uncertainties in the DMC.  Further, the solicitors’ firm responsible for drafting the DMC refused to provide any clarification about the issue.

11.On 17 October 2009, at a duly convened meeting of the owners, it was resolved that: (i) the Renovation Works would be carried out; and (ii) the costs of the Renovation Works would be shared by the owners based on the number of undivided shares of the respective owner which is provided for in the 1^st Schedule of the DMC (“the 2009 Resolution”).

12.On 10 September 2010, Multi-Winner commenced proceedings in the Lands Tribunal, i.e. LDBM 236/2010, against the IO (“the LT Action”) claiming, inter alia, a declaration that the 2009 Resolution was null and void and of no effect.

13.At the Annual General Meeting of the IO held on 24 October 2010, the IO resolved to defend the LT Action and, for this purpose, to engage lawyers to conduct the proceedings on their behalf (“the 2010 Resolution”).  Madam Lau was elected as the Chairperson of the MC at the same meeting.

14.The IO filed a Notice of Opposition and Counterclaim in the LT Action on 20 December 2010 seeking, inter alia, a declaration that the 2009 Resolution was valid.

15.On 11 January 2011, a mediation meeting was held in respect of the LT Action (“the Mediation Meeting”).  Mr Cheng attended such meeting as the representative of Multi-Winner.  The representative of the IO was Madam Leung Wai Yin (“Madam Leung”) who was the treasurer of the MC, and she attended the Mediation Meeting accompanied by Madam Lau and Madam Lam Yuet Mei who was the secretary of the MC.

16.In the Mediation Meeting, Mr Cheng made the a settlement offer that the contributions of the owners should be calculated with reference to Clause 7(b) and the 3^rd Schedule of the DMC, but Multi-Winner would subsidize a few hundred thousand dollars for renovating the lobby of the residential part of the Building (“the Settlement Offer”).  Apart from the Settlement Offer, 3 other possible options were also raised and discussed in the meeting, including: (i) the contributions should be based on Clause 7(b) and the 3^rd Schedule of the DMC without any concession; (ii) the contributions should be based on the owners’ respective undivided shares in the Building strictly as per the 2009 Resolution; and (iii) the contributions should be based on the current contributions to the management expenses of the Building, but the contributions of the owners of the units on the ground and 1^st floors should be calculated on the basis that there were 29 shops on the ground floor (instead of 2 units) and 24 shops on the 1^st floor (instead of 1 unit).

17.In the meeting of the MC held on 17 January 2011, Madam Leung reported to the MC about the 4 proposals discussed in the Mediation Meeting and explained why each of them was not feasible.  With particular reference to the Settlement Offer, Madam Leung was recorded in the minutes to have stated to Mr Cheng that under this method, the contributions by the owners of the residential units would likely be more than under the 2009 Resolution. It was believed that some owners would not accept this proposal, and that she herself would not accept it, and that was why the Settlement Offer was not feasible. The minutes also showed that the MC had consulted a lawyer and a District Board member in making the decision.

18.On 2 February 2011, the owner of Unit 7H sent a letter to the owners of the Building challenging and questioning the way the IO or the MC handled the matter (“Unit 7H’s Letter”).  In particular, it was queried why the IO or MC had never disclosed information relating to mediation to the owners but instead insisted on proceeding with the uncertain litigation. It also stated that the applicant in the LT Action, i.e. Multi-Winner, had made the Settlement Offer, and that it was expected that the parties could resolve the dispute through negotiation.

19.On 8 February 2011, the MC posted a notice addressing to all owners of the Building (“the 8 February 2011 Notice”), informing them about the 4 proposals and explaining why each of them was not feasible.

20.On 15 February 2011, the owner of Unit 17C sent a letter to the MC and copied to all the owners challenging and questioning the way the MC handled the LT Action (“Unit 17C’s Letter”).  First, given the importance of mediation, it queried whether an owners’ resolution was required to authorise Madam Leung to attend the mediation and to decide whether to accept any settlement proposal.  Second, given that Madam Leung stated that she had consulted many owners before the Mediation Meeting and that they all disagreed with the Settlement Offer, the owner of Unit 17C queried how many and which of the owners Madam Leung had consulted, how she had chosen those owners, and whether those owners could represent the wishes of all the owners.  Third, the 8 February Notice only mentioned that there were reasons to believe that the owners would not accept the Settlement Offer.  It did not state that the Settlement Offer was turned down at the Mediation Meeting because many owners had been consulted upon and expressed disagreement with the Settlement Offer before the Mediation Meeting.  Nor did it explain that the IO would have to continue with the LT Action if none of the 4 settlement options was accepted and the owners might have to incur further legal costs.  Unit 17C’s owner queried whether someone had acted emotionally and neglected the interests of the owners.  Fourth, the 8 February Notice stated that the solicitors acting for the IO had been consulted.  It was queried whether the solicitors had advised on ways to settle the LT Action to avoid affecting third party interests, and requested the MC to make available the solicitors’ written advice for open inspection.  Fifth, the 8 February Notice mentioned that a District Board member was of the view that the IO had no power to overturn the 2009 Resolution in the Mediation Meeting.  Unit 17C’s owners queried that if this was true, why the Lands Tribunal would suggest the parties to try settling the dispute by mediation.   He also requested the MC to indentify the District Board member and make available his written advice for open inspection.

21.In or about February 2011, the MC applied to the Lands Tribunal to join the owners of the ground and 1^st floors as parties in the LT Action, but the application was unsuccessful.  On 18 February 2011, the MC posted a notice inside the Building informing the owners of the result of the application (“the 18 February Notice”).

22.After the posting of the 18 February Notice, according to Madam Lau, there were untrue rumours spreading around the Building to the effect that the IO had already lost the LT Action and consequently had to pay huge amount of legal costs.

23.On 20 February 2011, the owner of Unit 13G sent a letter to the MC and all the owners, stating that: (i) the method of apportioning the costs for the Renovation Works under the 2009 Resolution (by reference to undivided shares) was fair and reasonable; (ii) the recent letters by “small owners” (“小業主”) made unfair criticisms against the MC and were stirring up trouble; and (iii) these “small owners” all acquired their flats within a year, and the identity of the ultimate owners was unknown, and they appeared to be biased toward the interests of “someone” (“某些人”).

24.On 23 February 2011, Unit 17C’s owner sent another letter to the IO and the owners of the Building: (i) questioning whether the making of a counterclaim in the LT Action by the IO and an application to join the owners of the ground and 1^st floors as parties to the LT Action without a owners’ resolution exceeded the authorisation granted by the 2010 Resolution and whether these matters should be discussed at an owners’ meeting; (ii) querying whether the costs of losing the joinder application was covered by the original authorisation; and (iii) cautioning the owners not to sign proxy forms lightly.

25.On 23 February 2011, the MC issued a notice about the LT Action denying the rumours that the IO had lost the LT Action and stressing that the trial of the LT Action had not yet commenced.

26.As the owners of Units 7H and 17C were limited companies and the previous letters issued by them did not bear the company chops, the MC posted a notice inside the Building on 24 February 2011, expressing its concern that the said letters did not bear the company chops, that their contents might be misleading and might also give rise to legal liability, and stating that in the future letter issued by individual owner should be signed by him and letter issued by corporate owner should bear the company chop.

27.On the same day, Madam Lau sent the Subject Letter to the owners in the Building.

28.In the first paragraph, Madam Lau pointed out that in recent months, a handful of owners had continuously sent letters to attack the current MC by way of their remarks, that the current MC members had been adopting a tolerant approach to maintain harmony between owners in the Building. Unfortunately, rumours abounded lately and the false reports had caused some of the owners to feel perplexed and that she could no longer stay silent.

29.In the second paragraph, Madam Lau said that in recent years, disputes had continuously arisen between the residents and shop owners due to conflicting interests in relation to the method of apportioning the costs for the Renovation Works.  She said that the current MC had tried to deal with building management affairs according to legal principles and tried its best to solve the far-reaching problems and the uncertainties in DMC based on spirit of “openness, fairness and justice”.

30.In the third paragraph, Madam Lau mentioned about the issue of the letters of authorisation in relation to the election of the previous MC in October 2010.

31.In the fourth paragraph, Madam Lau referred to the notice of the MC on the same day which stated that, inter alia: (i) the owners of Units 7H and 17C were limited companies; and (ii) Units 12E and 23G were owned by the same company of which the director was also a limited company.

32.In the fifth paragraph, Madam Lau said that the owner of Units 13G had already expressed his feeling and view relating to Unit 7H’s Letter.  As for Unit 17C’s Letter, Madam Lau made the following reply:

(i)   Madam Lau queried that Unit 17C’s Letter had not been issued with proper authorisation from the corporate owner;

(ii)   The owners’ meeting had resolved to authorise the MC to handle the LT Action.  As mediation was a necessary process of the legal proceedings, there was no need to convene another owners’ meeting for the purpose of giving authorisation for the mediation process;

(iii)   The MC acted according to the 2009 Resolution, which was supposed to represent the wishes of the majority of the owners. Madam Lau queried why it should convene another owners’ meeting because the corporate owner of the 3^rd floor was willing to pay extra money to renovate the residents’ lobby.  She then asked the “偽業主” (disguised owner) to see clearly.  This was then followed by the alleged defamatory Words;

(iv)   It was not the wish of the MC to continue the litigation, and on the contrary, it was the corporate owner of the 3^rd floor who wanted to continue the LT Action;

(v)   It was the right practice of the MC to consult a lawyer.  As the consultation was conducted orally (with a view to save legal costs), the legal advice could not be made available for Unit 17C’s owner to read; and

(vi)   Madam Lau could not see the relevance of the talk between the MC and the District Board member.  If Unit 17C’s owner was interested, he could meet the District Board member and the MC would not interfere or stop him from doing so.

33.The Subject Letter concluded with this sentence: “美新大厦業主,坊間有句座右銘:便宜切勿貪,貪得會坐監!我覺得都係唔好要他人的[大堂裝修费]為妙!”, which can be translated as: “To the owners of [the Building], there is a motto: do not be greedy to accept small advantages, and you can go to jail if you are greedy! I think that it is better not to accept the contribution made by others for the renovation costs of the lift lobby!”

34.According to the Plaintiffs, the words in the final sentence are not defamatory of the Plaintiffs per se, but they would be relevant in construing the meaning of the Words in the earlier part of the Subject Letter.

35.On 25 March 2011, the owners of the ground and 1^st floors commenced HCA No 507/2011 (“HC Action”) against the IO seeking various declaratory relief including one that the 2009 Resolution was void.  Consequentially, Multi-Winner and the IO agreed to stay the LT Action pending the result of the HC Action.  In the judgment of the HC Action handed down on 12 December 2013, DHCJ B Chu (as she then was) held that the 2009 Resolution was void.

36.On 25 May 2011, Multi-Winner commenced the present proceedings against Madam Lau to claim for, inter alia, damages for the libel in respect of the publication of the Words.  Mr Cheng was later joined as an additional plaintiff in the proceedings, and he also claims for aggravated damages resulting from the alleged libel. The Plaintiffs abandon the claim for injunctive relief.

THE ISSUES IN THIS CASE

37.It is the Plaintiffs’ case that the Words have the following natural and ordinary meanings which are defamatory of the Plaintiffs:

(i)   the Plaintiffs were insincere, dishonest and disingenuous with all the owners of the Building;

(ii)   the Plaintiffs had used unlawful means to seduce the MC members to act in breach of their duties owed to the owners of the Building;

(iii)   the Plaintiffs’ conduct amounted to an offence under the Prevention of Bribery Ordinance (Cap 201) (“POBO”) or other offence relating to bribery, or would constitute reasonable grounds for suspicion that such offence has been committed;

(iv)   the Plaintiffs were prepared to confer benefits on themselves to the detriment of all other owners of the Building; and

(v)   the Plaintiffs were prepared to seek gains by whatever means, including immoral and unlawful means.

38.The Plaintiffs also plead an innuendo meaning of “being invited by the ICAC to drink coffee”, in that it is generally known that this expression means that the person was under investigation by ICAC for commission of offences under the POBO or other bribery related offences.  In her final submissions, Ms Wong SC, counsel for the Plaintiffs, confirms that the Plaintiffs are just relying on the natural and ordinary meanings of the Words in their claim for libel.

39.To oppose the Plaintiffs’ claim, Madam Lau relies on the following defences:

(i)   the Words, in their natural and ordinary meaning, did not bear and were not capable of bearing the defamatory meanings as alleged by Multi-Winner and Mr Cheng;

(ii)   the Words could not be understood as referring to Mr Cheng;

(iii)   the Words were true;

(iv)   the Words were fair comment;

(v)   the Words were published on an occasion of qualified privilege, in that: (a) the Words were related to matter of common interest amongst the owners in the Building; and (b) the contents in Unit 17C’s Letter amounted to an attack on the MC in its handling of the LT Action and rejection of the Settlement Offer, and that Madam Lau, as the Chairperson of the MC, was entitled to answer the attack.

40.In reply, Multi-Winner and Mr Cheng contend that the defences of fair comment and qualified privilege are not available because there was malice on the part of Madam Lau in publishing the Words.  It is alleged that Madam Lau was aware that the making of the Settlement Offer could not possibly amount to unlawful conduct and the Words were uttered in the context of a long-standing and acrimonious dispute between Madam Lau (alongside other members of the MC) with the Plaintiffs (and others who shared similar interests with the Plaintiffs).  The Plaintiffs further say that it was irrelevant and disproportionate for Madam Lau to include the Words in the Subject Letter, in particular the imputation as to POBO or bribery related offences, and so the Words exceeded the scope of privilege allowed under the law.

41.At the trial, Mr Pow SC, counsel for Madam Lau, submits that it is quite unnecessary for Madam Lau to rely on the defence of justification or fair comment.  It becomes clear that the main issues in the present case are : (i) whether the Words are defamatory of the Plaintiffs; (ii) whether the Words can be understood as referring to Mr Cheng; and (iii) if the Words are defamatory, whether Madam Lau can rely on the defence of qualified privilege to justify the publication of the Words.  I will deal with these issues in turn.

THE MEANING OF THE WORDS    

42.There is no serious dispute about the following principles to be applied in ascertaining the meaning of the words in a libel action:

(i)   Words in an article are normally construed according to their natural and ordinary meaning, i.e. the meaning in which reasonable people of ordinary intelligence, with the ordinary personal’s general knowledge and experience of world affairs, would be likely to understand them;[1]

(ii)   The natural and ordinary meanings include implied, inferred and indirect meanings;[2]

(iii)   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;[3]

(iv)   For the purpose of ascertaining the single meaning, the court puts itself in the position of a fictitious ordinary reader;[4]

(v)   The fictitious “ordinary reader” is described as one with the following characteristics:

“He is a sort of half-way house between the unusually suspicious and the unusually naïve. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... ... The layman reads in an implication much more freely, and ... ... is especially prone to do so when it is derogatory ... ...”[5]

(vi)   The hypothetical reader is taken to be the representative of those who would read the publication in question;[6]

(vii)   In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation”;[7]

(viii)   The context and circumstances of the words in an article must be taken into consideration, and the article must be taken as a whole;[8]

(ix)   Where the alleged libel is contained in a letter, the whole of the correspondence would form part of the context, for it may be assumed that the other party to the correspondence is aware of its contents;[9]

(x)   Where there is disagreement as to what should count as context, it has been suggested that the test is what, having regard to all the circumstances, a reasonable person would be regarded as having read or seen.[10]

43.The matters published are defamatory if they expose the claimant to contempt and ridicule by others and cause others to shun him.  The matters would also be defamatory if they lower the claimant’s estimation in the eyes of right-thinking members of society and adversely affect his reputation.[11]

44.According to the Plaintiffs, the Words impute that the Settlement Offer or its acceptance amounted to an offence under the POBO or an offence relating to bribery, which is derived from the natural and ordinary meaning of the expression “being invited by the ICAC to drink coffee”. Such phrase is generally understood by an ordinary person in Hong Kong to mean that the person was under investigation by the ICAC for the commission of the said offences.  Further, the last sentence in the Subject Letter suggests that accepting the Settlement Offer would lead to imprisonment and the word “貪”(greed) also suggests corruption or taking bribes.

45.Where a statement imputes to the claimant some involvement in criminal behaviour, there are 3 levels of meaning: first, the claimant was guilty of the criminal acts; second, there are reasonable grounds to suspect that the claimant was guilty; and third, there are grounds to investigate that the claimant was guilty.[12] The Plaintiffs submit that it will usually be defamatory to impute the commission of a criminal offence, and it has been suggested that the 2 lesser levels of meanings would also be defamatory.[13]  However, it is the Plaintiffs’ case that the Words amounted to at least either level 1 or level 2 imputation.

46.Further, the Plaintiffs claim that the Words suggest that they seduced the MC to breach their duties to the owners by unlawful means.  The words “seduce”(引誘) and “betray”(出賣) impute that the Plaintiffs were seeking to gain an advantage for themselves at the expense of the other owners, which involved improper motive and dishonesty on the part of the Plaintiffs.  Further, many of the owners or residents in the Building were elderly who might easily be misled.  They could not be expected to be able to analyse the LT Action, the Settlement Offer and the Subject Letter in the way that a lawyer would do.  They were likely to be struck by the mention of ICAC and imprisonment.  The Words in all are, therefore, defamatory of the Plaintiffs.

47.Madam Lau testified that those were not her meanings when she published the Words.  She was only concerned that the ICAC, being the authority partly responsible for promoting good practices in building management affairs, might require the MC to explain why they acted contrary to the 2009 Resolution if they were to accept the Settlement Offer on behalf of all the owners in the Building.  Despite that I accept her evidence as the truth, her intention and knowledge as to the meaning of the Words are irrelevant for the court in ascertaining the natural and ordinary meaning of the Words.[14]

48.Despite the able submission of Ms Wong, I do not find that the Words are defamatory of the Plaintiffs.  It is trite law that, in ascertaining the natural and ordinary meaning of the words, it is necessary for the court to take into account the context of the words in an article and the circumstances under which the subject words were published.

49.In the present case, the hypothetical reasonable reader would be the representative of the owners of the Building.  They would have read most if not all the notices and letters from various owners and the MC and IO prior to the publication of the Subject Letter.  At the very least, they would have some background knowledge about the dispute relating to the contributions for the Renovation Works.  Under such circumstances, they would appreciate the following:

(i)   Personal interests of the residential owners and the shop owners were at divergence on the issue of contributions for the costs of the Renovation Works;

(ii)   Problem arose out of the ambiguity in the provisions of the DMC and legal opinion had been sought about the issue;

(iii)   The majority owners had voted in favour of the 2009 Resolution and the MC, as the representative of the IO, was duty bound to follow the 2009 Resolution; and

(iv)   According to the 2010 Resolution, the IO had voted in favour of the resolution to defend the LT Action and the MC could not depart from such position without proper justification.  In other words, the MC was duty bound to act in accordance with both the 2009 and 2010 Resolutions.

50.Based on the aforesaid background, the reasonable reader would have understood that the Plaintiffs would have their own personal interest to serve, and there was nothing wrong about the Plaintiffs making the Settlement Offer which was very much a “give and take” proposal.  There was nothing improper, unlawful or immoral in that.  On the other hand, for the MC to accept the Settlement Offer, it would involve the MC accepting a calculation method that was contrary to the collective decision of the owners which might also adversely affect the financial interest of the majority owners.  Under such circumstances, the MC might be in trouble if they were to accept the Settlement Offer.

51.When Madam Lau hypothesized that if the MC had accepted the Settlement Offer, it would likely be deserted by the owners, she had every reason to believe so.  The reasonable reader would have understood so because such action would be flouting the 2009 Resolution.  The MC’s action might be questioned by the majority owners.  Some might go further than just to “desert the MC”.  It was possible that some might even complain to the ICAC resulting in the MC being called upon to provide an explanation.

52.The Plaintiffs’ argument is that though said of the MC, the reference to “being invited by the ICAC to drink coffee” equally reflected on the Plaintiffs who made the Settlement Offer.  Such argument is based on the premise that it takes two to tango, which involves both the offer of a bribe and an acceptance of the bribe.  It is argued that the reasonable reader would think in that way.

53.However, the reasonable reader would not read the Words in isolation.  They would have known about the background of the dispute relating to the different methods for calculating contributions for the Renovation Works.  The Settlement Offer was made by Multi-Winner in the Mediation Meeting and the MC reported the making of the Settlement Offer in the various notices issued prior to the publication of the Subject Letter.  The Settlement Offer was made publicly with a view to settle the dispute.  Despite the use of words such as “seduce”, “betray” or “greed”, reasonable reader would not see the making of the Settlement Offer as some kind of bribe offered by Multi-Winner.  Neither would he regard the making of the Settlement Offer as improper, unlawful or immoral.  Reasonable reader would also understand the word “seduce” as describing the subsidy offered to entice the MC in accepting a different calculation method.  I agree with Mr Pow that the use of the word “seduce” is innocuous in the present context because the reasonable reader would appreciate that there is nothing wrong in the Plaintiffs making an offer to attract their litigation opponents into accepting the Plaintiffs’ stance in the litigation.  On the other hand, the reference to “being invited by the ICAC to drink coffee” should, in the eyes of the reasonable reader, only mean what might happen to MC if they were to act contrary to the 2009 Resolution in accepting the Settlement Offer.

54.In my judgment, that is what a hypothetical reasonable reader conversant with the relevant context would likely understand the Words to mean.  He would note the civic tone of the Subject Letter which pertained to open discussion and replying to “unjustified” attacks on MC’s rejection of the Settlement Offer.  He would understand Madam Lau as explaining why the MC rejected the Settlement Offer rather than criticizing the maker of such offer.

55.Further, the last sentence in the Subject Letter does not take the Plaintiffs’ case any further.  As the Settlement Offer was made publicly, with no secrecy or impropriety, to advance lawfully the interest of the Plaintiffs, the reference to imprisonment can only mean that the MC would be a deep trouble if they were to act contrary to the collective decision of the owners.  In any event, it is clear from the wordings used by Madam Lau that she was quoting an idiom.  Reasonable reader should not read them as suggesting imputation of crime on the Plaintiffs.  He would read it as a warning to owners that they should not be greedy and should not be attracted by the subsidy.

56.In the course of the argument, there is a dispute between the parties as to whether a reasonable reader would be more prone to read in an implication which is a more derogatory one.  In particular, the Plaintiffs rely on the fact that most of the people living in the Building are elderly, and so they might easily be misled or get a negative impression about the Plaintiffs just from the Words themselves.

57.Ms Wong submits that the authorities support such proposition.  In Lewis v Daily Telegraph Ltd[15], Lord Devin said the following:

“The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.”

58.On the other hand, Mr Pow relies on the dicta of Lord Reid in the same case and submits that the notional reasonable reader is “not avid for scandal” and would not infer guilt or fraud merely because an inquiry is on foot.[16] He does not, and should not, select one bad meaning where other non-defamatory meanings are available.[17]

59.In my judgment, such debate is more academic than real.  Ultimately, the court has to determine the meaning that would be understood by the representative of those who read the Subject Letter.  They would be the owners of the Building.  Even if some of the readers might be elderly people, they should have some background knowledge as to the dispute about the different methods for calculating contributions for the Renovation Works and the circumstances leading to the making of the Settlement Offer.  Even if certain negative words, such as “seduce”, “betray” or “greed”, had been used in the Subject Letter, the reasonable reader could not have the impression that the making of the Settlement Offer was unlawful, improper or immoral.  Being fully aware of the attacks against the MC for not accepting the Settlement Offer, the reasonable reader would associate those negative implications with the possible consequences that might be faced by the MC if they were to accept the Settlement Offer contrary to the decision of the majority owners as contained in the 2009 Resolution.

60.Based on the aforesaid, I find that the Words do not bear any of the alleged defamatory meanings as pleaded by the Plaintiffs or at all.  The Plaintiffs’ claim cannot therefore succeed.

61.This would have been sufficient to dispose of the claim.  However, since the parties have devoted considerable time at the trial to deal with the other issues, I feel obliged to express my views on those issues as well.

REFERERNCE TO MR CHENG

62.It is an essential element of the cause of action for defamation that the words complained of were published of and concerning the claimant.  The test is whether the claimant may reasonably be understood to be referred to by the words.[18] It would be sufficient if the claimant is referred to by an attribute.  Where the claimant is not named, the test is whether the words are such as reasonably in the circumstances would lead persons acquainted with the claimant to believe that he was the person referred to.[19]  Where the claimant may only be identifiable by reason of extraneous facts which are not generally known, there is no actionable publication unless it is shown that the words were communicated to persons with such knowledge, which can be established as a matter of inference.[20]  It is irrelevant that the defendant did not intend to refer to the claimant.  The only question is whether the words would be understood by reasonable people who knew the claimant as referring to him.[21]  It is possible for a statement referring to a company to bear defamatory imputation on the directors.  Ordinary reader would know that companies are controlled by real people.[22]

63.Apart from the reference to Multi-Winner, it is also the Plaintiffs’ case that the Words could be understood as referring to Mr Cheng as well.  Madam Lau does not dispute the reference to Multi-Winner, but she says that the Words could not have been understood to refer to Mr Cheng.

64.Mr Pow submits that there is a clear distinction between a reference to a corporation and a reference to its board of directors or office bearers.  It may be the case that only the corporation or its directors are being defamed.  In such case, only the person defamed can sue.[23]  However, the case of Multigroup Bulgaria Holding AD v Oxford Analytica Ltd[24]also shows that an imputation is capable of referring to both the corporation and the individual behind.  Ultimately, the question is whether the words, read in context, are such that persons acquainted with Mr Cheng reading the Subject Letter would in the circumstances reasonably be led to understand that Mr Cheng was the person associated with the making of the Settlement Offer on behalf of the corporate owner of the 3^rd floor.

65.I answer this particular question in favour of the Plaintiffs.  Although the name of Mr Cheng was not mentioned in every notice or letter sent to the owners prior to publication of the Subject Letter, Mr Cheng was the sole representative of Multi-Winner in the mediation which was a fact known to the owners of the Building or at least some of them.  In particular, the Subject Letter was published in respect of or in response to the 8 February Notice and Unit 17C’s Letter dated 15 February 2011, which formed part of the context of the Subject Letter.  The 8 February Notice expressly referred to Mr Cheng by name as the representative of Multi-Winner who made the Settlement Offer at the Mediation Meeting.  The various minutes of the MC meetings also showed that Mr Cheng had been acting as the representative of Multi-Winner in dealing with the LT Action and attending the owners’ and MC meetings.  In such circumstances, the fellow owners, at least those who attended the owners’ and MC meetings and read the 8 February Notice, would be aware that Mr Cheng had been acting as the representative of Multi-Winner, and they would naturally associate Mr Cheng as the person acting on its behalf in making the Settlement Offer.

66.I therefore find that the reasonable reader would associate the making of the Settlement Offer with both Multi-Winner as the corporation and Mr Cheng as the person behind the making of the Settlement Offer.  However, this finding is now academic as I do not accept that the Words are defamatory with reference to anyone who made the Settlement Offer.

DEFENCE OF QUALIFIED PRIVILEGE

67.The third main battleground is the defence of qualified privilege.  Even if I am wrong on my finding about the meanings of the Words, I accept that Madam Lau can rely on such defence to defeat the Plaintiffs’ claim.  Obviously, the consideration of such defence has to proceed on the basis that the Words carry the defamatory meanings as alleged by the Plaintiffs (which I do not find it to be the case), in particular the imputation about the possible commission of bribery-related offence associated with the making of the Settlement Offer, otherwise there is no need for me to consider such defence at all.

68.At common law, privileged occasions can be classified into 2 categories: firstly, where the maker of the statement has a duty, whether social or moral, to make the statement and the recipient has a corresponding interest to receive it; or secondly, where the maker is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter which he has a common interest with the recipient.[25]

69.The authorities show that there is a common interest among the owners of a building with regard to matters relating to the affairs of the building.[26]

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:[27]

“ ... ... 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 .. ...”

71.In a way, both common interest privilege and reply to attack privilege are complimentary to one another.  In the present case, Madam Lau seeks to rely on both privileges to defend the Plaintiffs’ claim.

72.On the other hand, Ms Wong submits that such defence is not available because of the following 3 reasons:

(i)   Madam Lau has only pleaded reply to attack privilege but not common interest privilege, and so she is not entitled to rely on the latter privilege;

(ii)   the Words had exceeded the privileged occasion in the sense that the Words were unreasonable, disproportionate and irrelevant; and

(iii)   the Words had been published by Madam Lau with malice.

73.I will deal with these issues in turn.

(i)   The pleading issue relating to common interest privilege

74.Despite the able submission of Ms Wong, I find that the defence of common interest privilege has been sufficiently pleaded in the Re-Re-Re-Re-Amended Defence (“the Defence”).

75.The particulars giving rise to the privilege are pleaded in §§10(1) to (13) and 14(1) to (3) of the Defence.  In §14(3), Madam Lau pleads that she had a duty and/or interest in publishing the Subject Letter and the recipients, i.e. the owners, had a corresponding interest in receiving the communication.  The existence of duty or interest is a classic case of qualified privilege.

76.Although the express term “common interest privilege” has not been used, the learned authors of Gatley has stated that, in a libel claim, “the defendant need only prove the facts and circumstances necessary for the existence of the privilege, and it will then normally for the judge to rule whether there is a reciprocity of duty or interest or other ground of privilege”.[28]

77.The relationship between the publisher and the recipients of the Subject Letter was the interest in matters relating to the affairs of the Building.  The Subject Letter and the Words clearly had reference to the subject matter of the privilege and clearly relate to the subject matter of the original attack.  The common interest privilege and the reply to attack privilege are therefore complimentary to one another.  As the facts for considering both privileges are the same and Madam Lau has expressly pleaded the duty and interest issue in §14(3), the court is free to consider both kinds of privilege in the present case.

78.In any event, I find such pleading point to be an academic one.  As I will demonstrate in the latter part of this judgment, I accept that Madam Lau can rely on reply to attack privilege alone to defend the claim.  Obviously, the court will take into account the subject matter of the reply, which relates to management affairs in the Building, in determining whether Madam Lau should be given some degree of latitude in replying to the attack. Hence, even if common interest privilege is not properly pleaded (which I do not accept it to be the case), it would not affect the outcome of the case.

(ii)     Whether the reply exceeded the privileged occasion?

79.It is the Plaintiffs’ case that, both from the common interest and reply to attack perspectives, it was unreasonable, disproportionate and irrelevant to publish the Words which impute that it might be a bribery-related offence to make the Settlement Offer.  The Plaintiffs therefore say that the reply exceeded the privileged occasion.

80.In Incorporated Owners of Tung Lo Court v Tsui Wai Yip[29], the Court of Appeal has emphasised that in the case of reply to attack privilege, the reply must be “reasonable, proportionate and relevant”.

81.Ms Lau testified that it was not her meaning when she published the Words.  Prior to the publication, there had been considerable challenges by some of the owners in the Building as to why the MC did not accept the Settlement Offer.  Madam Lau took the view, rightly or wrongly, that the MC was not entitled to accept the Settlement Offer because it was contrary to the 2009 Resolution.  If the MC were to accept the Settlement Offer, she was afraid, rightly or wrongly, that some of the owners might make a complaint to the ICAC and as a result the MC would have to be asked to account for its decision.  She honestly believed that her concern was a valid one.

82.I accept the explanation of Madam Lau.  In this regard, I find her to be a simple and honest witness.  She is a retired woman devoting her time in the management of the Building and some other properties she owns.  I agree with Mr Pow that she is a soft speaking lady and she has demonstrated herself to be a patient and decent person throughout the lengthy cross-examination.  She was forthright and straightforward in giving her answers.  She holds no personal grudges or animosity towards any of the Plaintiffs, and she was clearly motivated by her sense of duty in publishing the Subject Letter.

83.Madam Lau is not a lawyer.  She attended seminars arranged by ICAC on matters pertaining to the good practices in dealing with building management affairs.  She understood that complaints could be made to ICAC not confining to classical bribery offences.  She feared that there might be a chance of some owners doubting the propriety of MC if it were to accept the Settlement Offer contrary to the 2009 Resolution, and her concern for complaints to ICAC was both reasonable and credible.  In fact, her evidence in this regard has not been seriously challenged in cross-examination, and so I accept her evidence and explanation as the truth.

84.It is with this background that I consider whether Madam Lau, in publishing the Words, had exceeded the privileged occasion.

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;[30]

(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.[31]

86.In Hamilton v Clifford[32], 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, 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.”

87.Having considered the background leading to the publication of the Subject Letter, I do not find that the reply made by Madam Lau, which included the Words, exceeded the privileged occasion.  The contents of the Subject Letter related to building management affairs touching upon the interests of all the owners in the Building.  As serious allegations had been made against the MC regarding its decision not to accept the Settlement Offer, Madam Lau should be given a considerable degree of latitude in expressing her view and replying on the matter.  As I accept Madam Lau’s explanation as the truth, she sought to justify the decision of the MC in rejecting the Settlement Offer rather than to attack the Plaintiffs or to impute any impropriety or illegality associated with the making of the Settlement Offer.

88.In my judgment, the Words contained in the Subject Letter were relevant as to why the MC declined to accept the Settlement Offer.  One should avoid a strict application of the relevance test, otherwise the defence would become an illusory one.  In the absence of malice in publishing the Words (which I will further elaborate in the latter part of this Judgment), I do not find that the Words were unreasonable, disproportionate or irrelevant, both as part of the reply to the attack and challenges lodged against the MC and as an explanation of its stance relating to matter of common interest among the owners in the Building.

(iii)    Whether the Words were published with malice?

89.I then turn to the final issue about malice.

90.A defendant in a libel claim would lose the protection of qualified privilege if he published the words with malice or with motive other than the motive to perform the relevant duty or protect the interest giving rise to the privilege.[33]  Though the standard of proof in showing malice is still one of balance of probabilities, judges should be very slow to draw the inference that a defendant was actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that the defendant did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity.  It is only where the defendant’s desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that express malice can properly be found.[34]  In the context of the reply to attack privilege, if the defendant’s motive in making the statements in reply is not refutation or vindication, but a desire to blacken the character of the person who has made the charges (and for the same reason the character of some other persons), he will be held malicious.  The privilege must be used as a shield and not as a weapon of attack.[35]

91.In the earlier part of this Judgment, I have already explained why I accept Madam Lau to be an honest and truthful witness and the reason as to why she wrote the Words in the Subject Letter.  I do not want to repeat the same here.

92.In her final submissions, Ms Wong has lodged various attacks against the credibility of Madam Lau’s evidence including, inter alia, the following:

(i)   it was inconceivable that Madam Lau, being the Chairperson of the MC, could have forgotten the amount of monthly management fees collected in 2011;

(ii)   Madam Lau was evasive when she was asked about whether she had any suspicion as to who spread the rumours in the Building and identity of the residential owners who supported the view of the shops owners;

(iii)   it was inconceivable that the bribery imputation of the Words could have escaped Madam Lau;

(iv)   if her subjective meaning of the Words were true, Madam Lau should have put forward her explanation much earlier in the proceedings;

(v)   Madam Lau could not provide a satisfactory explanation as to why she included the Words and the last sentence in the Subject Letter;

(vi)   Madam Lau was evasive when she sought to justify the reference to ICAC in the Subject Letter; and

(vii)   the longstanding dispute in the Building relating to the method of calculating the contributions for the Renovation Works would naturally explain why Madam Lau had  personal ill will against the Plaintiffs.

93.Further, the Subject Letter contained aggressive, sarcastic, rhetorical, contemptuous and confrontational choice of words and expressions.  The Plaintiffs therefore say that the Subject Letter was published by Madam Lau with an axe to grind.

94.I do not accept that these arguments would undermine the credibility of Madam Lau’s evidence.

95.First, this is not a memory game and so one cannot expect Madam Lau to remember all the details relating to her work as the Chairperson of the MC.

96.Second, the subjective meaning of the alleged defamatory words is not relevant for the court in ascertaining the natural and ordinary meaning of the words.  It was therefore only when the Plaintiffs raised the issue about malice that Madam Lau put forward her subjective meaning about the Words in the present proceedings.  In such circumstances, Madam Lau should not be criticised for not revealing her subjective meaning earlier.

97.Third, most if not all of the contacts between Mr Cheng and Madam Lau were officials rather than personal.  The meetings of the MC were conducted in a civilised manner.  She fairly acknowledged that there were divergences of interest amongst resident owners and shop owners, and it would be natural for each party to protect their respective interest.  Apart from the usual hostility between 2 groups of owners arising from the dispute relating to the contributions for the Renovation Works which affected all the owners in the Building, I do not find that Madam Lau had any personal grudges or animosity towards any of the Plaintiffs.

98.Fourth, I do not find Madam Lau to be an evasive witness.  She has been trying her best to give her evidence about her choice of words relating to the contents of the Subject Letter.  It is always easy to analyse critically the use of words with the benefit of hindsight.  However, all the owners of the Building who had some knowledge about the background of the dispute should view the Settlement Offer as some kind of legitimate “give and take” proposal.  In the overall context, I would say that the subjective meaning of the Words as understood by Madam Lau is quite reasonable and logical.  On the other hand, it does not make a lot sense that the owners would regard the Settlement Offer, which was made publicly without any secrecy and with the “benefit” of such offer enjoyed by all the residential owners and not just the MC members, as some kind of bribe to the MC.

99.Further, contrary to the submission of Ms Wong, I find the tone of the Subject Letter to be a civic one which pertained to open discussion and replying to what Madam Lau regarded as unjustified attacks on MC’s rejection of the Settlement Offer.  Taking into account the seriousness of the allegations made against the MC and the tone of the earlier letters, I consider the reply of Madam Lau to be a reasonable one.  Hence, I accept Madam Lau’s evidence in the entirety and she was clearly motivated by her sense of duty in all her actions.

100.It is the Plaintiffs’ case that the Words were published with malice.  However, all the matters pleaded in the Re-Re-Amended Statement of Claim in support of the plea of malice are just bare allegations and there is nothing in Mr Cheng’s witness statements to substantiate the plea of malice in the pleading.

101.During his cross-examination, Mr Cheng revealed for the first time some of the specific allegations of malice against Madam Lau, including: (i) Madam Lau picked on him on the issue of letters of authorisation; (ii) Madam Lau called upon people to surround him at the meetings; (iii) Madam Lau manipulated the choice of IO’s legal consultant; and (iv) Madam Lau refused to accede to his reasonable request for just a clarification.

102.I have serious reservation about the truth of these allegations.  They have not been included in any of the pleadings or witness statements filed on behalf of the Plaintiffs.  Most of these allegations have not even been put to Madam Lau when she was cross-examined on the issue of malice.

103.Further, some of these allegations simply lack supporting basis.  There is no evidence to show that Madam Lau caused other owners to surround Mr Cheng during the meetings.  According to Madam Lau, she did not witness such incidents.  Even if that happened, given the divergence in the views regarding the method of calculating contributions between two groups of owners, there is simply no evidence to support Mr Cheng’s allegation that Madam Lau had caused the other owners to gather around him. 

104.Finally, Mr Cheng does not impress me as a reliable witness and I do not accept that he has told the court the whole truth.  Mr Cheng was evasive as to whether he had interest in the companies which own Units 7H, 17C, 12E and 23G until the same was exposed in cross-examination.  He then tried to distance himself from the clandestine use of “ownership” in these residential flats to generate apparent schism amongst residential owners.  He blamed it conveniently on one Mr Yiu.  After all, he admittedly knew, well back in 2010, that he had “some” investment in these flats.

105.Mr Pow criticizes Mr Cheng to be a person who is easily agitated and obsessed with his personal point of view.  Mr Cheng said that he could only see what burden Multi-Winner bore and did not care about that of others, in particular the MC members who owed a duty to the majority owners.  It is such kind attitude which leads him to pursue the present claim which in any view is a storm in a teacup.  Having considered the evidence, there is certainly some weight in these criticisms.

106.For the above reasons, I do not accept that Madam Lau published the Subject Letter with malice or other improper motive other than to reply to the attacks against the MC and to discharge her duty as the Chairperson of the MC explaining why they rejected the Settlement Offer. Hence, even if the Words were defamatory against the Plaintiffs (which I do not accept it to be the case), the Words were published on an occasion of qualified privilege.

QUANTUM

107.There is always a possibility that this case may go elsewhere and a contrary view is taken about the issue of liability, and so it is necessary for me to give my ruling on quantum as well.

108.The purpose of general damages is to compensate the claimant for the effects of the defamatory statement.[36]  General compensatory damages serve 3 functions:[37]

(i)   to console the claimant for hurt and distress suffered;

(ii)   to repair the harm that has been done to his reputation (including his business reputation); and

(iii)   to vindicate his reputation.

109.Since Multi-Winner is a company, there will be no compensation for injury to feelings.

110.In Gatley[38], the learned authors summarised the matters affecting the level of award: the conduct of the claimant, his credibility, his position and standing, and the subjective impact that the libel has had on him, the nature of the libel, its gravity and the mode and extent of its publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the verdict.

111.Aggravated damages may be granted to compensate for the additional injury caused to the claimant’s feelings by the defendant’s post publication conduct, such as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the claimant in a wounding and insulting way.[39]

112.In her final submissions, Ms Wong has referred me to the first instance judgment in Incorporated Owners of Tung Lung Court v Tsui Wai Yip[40], in which DDJ Brian Mak had summarised a number of similar decisions on quantum.  In that particular case, the defendant made a statement that the Incorporated Owners was behaving like a triad society.  The court found that such serious allegation was “totally irrational, disproportionate, and goes well beyond the permitted scope of a reply” and a “wholly inexcusable attempt to undermine the plaintiff’s integrity”.  Upon appeal, the Court of Appeal awarded $200,000 as general damages.

113.In my judgment, the damages suffered by Multi-Winner cannot be substantial.  As a corporation, there will be no compensation for injury to feelings.  Further, Multi-Winner does not carry on any active business apart from owning real properties for investment purpose, and so the publication of the Words should not have any significant impact on its business.  In the case of Mr Cheng, I agree that the quantum may be more because he also suffers injury to feelings.  Yet, I am of the view that most of the owners in the Building would not regard the defamation (if established) as a serious one, in particular for those who had some knowledge about the background of the dispute in the Building.  Having considered all the circumstances of the present case, I assess the quantum of general damages suffered by Multi-Winner and Mr Cheng as $50,000 and $100,000 respectively.

114.This is also not an appropriate case for awarding aggravated damages in favour Mr Cheng.  I stand by my finding that there was no malice on the part of Madam Lau in publishing the Words.  If she were to be found liable for defamation (which I do not accept it to be the case), it should only be on the basis that a reasonable reader would have understood the Words to carry the defamatory meanings as alleged by the Plaintiffs and the reply made by her exceeded the scope of protection allowed under the law.  There was still no malice on her part.  As she honestly believed in what she did was right, I decline to make any award for aggravated damages.

115.For the above reasons, the Plaintiffs’ claim is dismissed.  I also make an order nisi that the costs of this action be to Madam Lau with certificate for 2 counsel, which shall be made absolute 14 days after the date of the handing down of this Judgment.

116.I am grateful to counsel for all the assistance that they have provided to this court.

Ms Lisa K Y Wong, SC & Mr Keith Lam, instructed by K & L Gates, for the Plaintiffs

Mr Jason Pow, SC and & Mr Lawrence Ng, instructed by Rowdget W. Young & Co, for the Defendant