Koo Ming Kown v. The Baptist Convention of Hong Kong Operating As Pui Ching Primary School
Read the full judgment text of HCA 731/2017 on BabelCite. This High Court CFI judgment was delivered on 30 October 2017.
1. There are before me 2 summonses:
Cited by 1 case · Cites 12 cases
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HCA 731/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 731 OF 2017 __________________________
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_______________ D E C I S I O N _______________ Applications 1.There are before me 2 summonses:
Matters giving rise to the plaintiff’s claim 2.Unless otherwise stated, the following facts, set out chronologically, are taken from the statement of claim (“SOC”) and admitted in the defence. 3.The plaintiff is an alumnus of Pui Ching Primary School (“School”) of which the defendant, a Hong Kong company limited by guarantee and a charitable institution, is the sponsoring body and operator. 4.The parties have been engaging in various litigations against each other. 5.In particular, in HCA 1339/2014 (“Action”), the plaintiff claimed against the defendant[1] for the return of HK$20 million donated by the plaintiff to the defendant on about 17 December 2007 for part of the School’s redevelopment project plus interest on the grounds of misrepresentation, mistake and unjust enrichment. 6.By an order made by consent by Master Chow in the Action on 3 December 2015, the defendant was ordered to file and serve further and better particulars of its defence and to produce certain specified documents for the plaintiff’s inspection within 14 days (“3.12.2015 Order”). 7.The defendant failed to comply with the 3.12.2015 Order. In consequence, by an order made by consent in the Action on 30 December 2015, Master Ho ordered that unless the defendant filed and served the particulars of pleading and produced the documents ordered under the 3.12.2015 Order by 4 pm on 13January 2016, its defence in the Action should be struck out and the plaintiff should be at liberty to apply for judgment to be entered against the defendant together with interest and costs (“Unless Order”). 8.Although the defendant filed and served particulars of the defence in the Action on 13 January 2016, the plaintiff took the view that they did not comply with the Unless Order and applied by a summons issued on 5 February 2016 for the entry of final judgment against the defendant. 9.The plaintiff’s said summons for judgment came before Deputy High Court Judge Seagroatt on 13 July 2016. At that hearing (“13.7.2016 Hearing”), the defendant, then represented by Lui & Law (“L&L”), agreed to an order in terms of the plaintiff’s summons and final judgment (“Judgment”) was accordingly entered against the defendant for HK$20 million (“Judgment Debt Principal”) to be paid forthwith plus interest thereon at judgment rate. 10.On 31 August 2016, the plaintiff served on the defendant a statutory demand (“Statutory Demand”) in respect of the Judgment Debt Principal and up-to-date interest thereon which the plaintiff reckoned to add up to HK$14,192,572.15. Paragraph 5 of the Statutory Demand warned the defendant that the plaintiff would proceed under the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) for the winding up of the defendant without further notice in the event of non-compliance by the defendant. 11.Against this background, on about 6 September 2016, the defendant published to church supervisors, teachers and pastors of various churches of the defendant a circular containing the following words (“1st Statement”):
12.The 21 days allowed for payment by the defendant under the Statutory Demand expired on 21 September 2016, on which date the defendant paid up the Judgment Debt Principal. 13.Following the payment of the Judgment Debt Principal, on 13 October 2016, the plaintiff served on the defendant a revised statutory demand (“Revised Statutory Demand”) in respect of interest calculated by him up to and including 21 September 2016 in the sum of HK$14,284,627. Paragraph 6 of the Revised Statutory Demand warned the defendant that the plaintiff would proceed to wind up the defendant without further notice in the event of non-compliance by the defendant. 14.The 21 days allowed for payment by the defendant under the Revised Statutory Demand expired on 3 November 2016. On 4 and 9 November 2016, the plaintiff presented, and served on the defendant, a winding up petition against the defendant under HCCW 386/2016 (“Petition”). 15.On 14 November 2016, L&L sent to the plaintiff’s solicitors in the Action and the Petition, Ince & Co (“Ince”), a cheque for HK$306,011 as payment of interest under the Judgment from 14 July 2016 to 21 September 2016. 16.On around the same date, the defendant also published to members of the staff of the defendant and the School and other related and/or associated organisations of the defendant and/or the School a statement entitled “浸聯會就顧明均入稟申請浸聯會清盤一事之聲明” containing the following words (“2nd Statement”):
17.By a letter dated 18 November 2016 from Ince to L& L, the plaintiff returned the said cheque to the defendant on the ground that L&L’s letter dated 14 November 2016 did not make clear whether the payment of HK$306,011 was intended to be an offer / proposal for settlement, or part payment, of the plaintiff’s claim for interest totalling HK$14,284,627. Paragraph 21 of the SOC, which pleads the defendant’s lack of response to Ince’s 18 November 2016 letter and failure to clarify its stance in L&L’s 14 November 2016 letter, is denied in paragraph 8 of the defence. The defendant has however not set up any positive case in respect of Ince’s letter of 18 November 2016. 18.On around 29December 2016, the defendant published to the publishers, reporters and editors of various local newspapers a Chinese press release containing the following words (“3rd Statement”):
The plaintiff’s claim 19.The subject matters of this action are the 1st, 2nd and 3rd Statements (“Statements” collectively), which the plaintiff considers to be defamatory of him. It is further his case that they contained statements about his conduct in the Action and the Petition that are false and were published by the defendant with malice. The plaintiff raises 2 causes of action: libel and malicious falsehood. He claims damages including aggravated and/or exemplary damages, a final injunction restraining the further publication of the Statements and an apology. Procedural history of this action 20.According to the affirmation of Ho Man Kei Keith filed on 12 May 2017 in support of the Default Judgment Summons, the writ of summons indorsed with the SOC together with the form for acknowledgment of service was left at the defendant’s registered office on 28 March 2017 by a clerk of Wilkinson & Grist (“W&G”), solicitors for the plaintiff in this action, pursuant to s 827 of the Companies Ordinance (Cap 622). 21.The writ of summons was received by the receptionist of the defendant who impressed the defendant’s chop on the covering letter for service with a handwritten date of 28 March 2017. Thus, the writ of summons was actually served on the defendant on 28 March 2017. 22.Pursuant to Order 12 rule 5(a), the time limit for acknowledging service of the writ by the defendant is 14 days after service of the same (including the day of service) which, in this case, expired on 10 April 2017. 23.However, the defendant did not file the acknowledgement of service (giving notice of its intention to defend) until 26 April 2017, which it did without first obtaining the plaintiff’s consent or applying to the court for an extension of time. 24.Under Order 12 rule 6(2), a defendant who acknowledges service after the time limit prescribed by Order 12 rule 5 shall not be entitled to serve a defence or do any other act later than if he had acknowledged service within that time. Under Order 18 rule 2(1), a defendant who gives notice of intention to defend an action must, unless the court gives leave to the contrary, serve a defence on every other party to the action who may be affected thereby before the expiration of 28 days after the time limited for acknowledging service of the writ or after the statement of claim is served on him, whichever is later. The defendant therefore had 28 days from 11 April 2017 to file its defence, which expired on 8 May 2017. 25.On 9 May 2017, the plaintiff served notice of intention to enter default judgment on L&L, solicitors who filed the acknowledgment of service on behalf of the defendant in this action, pursuant to Order 19 rule 8A. 26.Despite the defendant’s indication of its intention to defend in the acknowledgment of service and the plaintiff’s notice under Order 19 rule 8A that he would insist on the defendant’s compliance with the time limit laid down by the RHC for the defence, the defendant did not file any defence or apply for an extension of time to do so. On 12 May 2017, the plaintiff took out the Default Judgment Summons. Such summons and Mr Ho’s said affirmation in support were served upon L&L on the same day. 27.The Default Judgment Summons was set down for hearing on 7 September 2017. On 4 September 2017, Mr Jason Pow SC and Mr Herbert Leung, counsel for the plaintiff, lodged a 26 page skeleton argument supported by 22 authorities, addressing mainly the issues whether Hong Kong courts have jurisdiction in equity to make an order compelling a defendant in a defamation suit to apologise and/or publish a corrective statement and, if so, whether this is a proper case for the court to exercise such jurisdiction in favour of the plaintiff against the defendant. 28.In the meantime, nothing was heard from the defendant. There was no application for an extension of time for the filing and service of the defence. There was just complete silence on the defence side. It was not until about 4 pm on 6 September 2017 (i.e. the day before the hearing of the Default Judgment Summons) that the defendant filed with the court and served on the plaintiff’s solicitors a defence (without first obtaining the plaintiff’s consent or leave of the court) and the Time Extension Summons. By then, the defendant had been 121 days out of time! 29.On 7 September 2017, at 9:05 am, the court received by fax a 6 page skeleton argument for the defendant by Mr Bosco Cheng who was instructed late in the evening on 6 September 2017. 30.The Time Extension Summons is not supported by any affidavit giving the reasons for the failure to file and serve the defence in time. However, Mr Cheng seeks to explain in paragraph 8(2)(b) of his skeleton argument and in his oral submissions that the defendant has been represented by 2 firms of solicitors in various litigations against the plaintiff namely, L&L and P T Yeung & Tang; that there was a change of the board of directors of the defendant in May 2017; that the defendant’s directors disagreed among themselves as to which firm of solicitors the defendant should retain for the defence of this action; that some preferred to continue to instruct L&L after they filed and served the acknowledgment of service while some were in favour of switching to the other firm; and that the issue was not resolved until 5 September 2017 whereupon L&L took instructions from the defendant and prepared the defence by 6 September 2017. Approach 31.In opposition to the Default Judgment Summons, Mr Cheng refers to and relies on Hong Kong Civil Procedure 2017, Volume 1, paragraph 19/7/4:[2]
32.As stated above, the defendant filed and served a defence out of time just the day before the hearing of the Default Judgment Summons without first obtaining the plaintiff’s consent or the court’s leave. By citing the above quoted passage, I do not understand Mr Cheng to be contending that a defence so filed and served would automatically disable the Default Judgment Summons. Rather, by issuing the Time Extension Summons, the defendant acknowledges that it still requires the court’s leave to file and serve the defence out of time. Otherwise, a defendant who flouts the requirement for the opposite party’s consent or the court’s leave before filing and serving a defence out of time in face of an application for default judgment would have been put in a more advantageous position than one abiding by such requirement. I will therefore treat the defendant as if it had just taken out a cross application for the filing of a defence out of time and had, in support, placed before the court a draft defence. 33.It is unfortunately not uncommon for the court to be presented at the same time with an application by the plaintiff for default judgment and a cross application by the defendant for the filing of a defence out of time. 34.As to what the court should do in such a situation, I start with the decision of Ma J (as he then was) in Schindler Lifts (Hong Kong) Ltd v Ocean Joy Investment Ltd [2002] 1 HKLRD 279. In that case, the defendant failed to serve its defence within the prescribed time limit. The plaintiff served a 2 day notice under Order 19 rule 8A. The defendant made an application for an extension of time which was fixed to be heard on a date after the expiry of the 2 day notice served by the plaintiff. Before the defendant’s time summons could be heard, the plaintiff applied to enter default judgment before a Master. The Master adjourned the plaintiff’s application for default judgment so that it could be heard at the same time as the defendant’s time summons. At the adjourned hearing, Ma J said at [17]-[19]:
Ma J extended time for the defendant on the grounds that it was the first application for time by the defendant; that the defendant had acted expeditiously after receipt of the notice under Order 19 rule 8A; and that no prejudice was caused to the plaintiff by the extension of time. His Lordship did not consider the merits of the case because he apparently did not have before him a draft defence or evidence as to the proposed ground(s) of defence. 35.Where the court is provided with a draft defence (or an affidavit disclosing matters supporting a ground of defence) or where, as in this case, a defence has somehow been filed out of time and without the plaintiff’s consent or the court’s leave before the hearing, the court should have regard to the merits of the defence or draft or proposed defence in dealing with the application for default judgment and the cross-application for extension of time. See California Insurance Company Limited v Choung Suk Wah, HCA 172/2002, unreported, 19 September 2002, per Deputy High Court Judge A Cheung (as he then was) at [20], followed in Lee Leung Nang v Karen Lee [2007] 3 HKLRD 615, per Johnson Lam J (as he then was) at [2]. 36.The rationale is obvious. A default judgment being granted without consideration of merits, even obtained regularly, is liable to be set aside on demonstration of a defence on the merits. It therefore makes sense for the court to have regard to the material before it that goes to merits. In Lee Leung Nang v Karen Lee, Johnson Lam J gave judgment on the plaintiff’s claim for declaratory relief as to his own directorship as he did not see in the defendant’s evidence in support of the summons for time to file the defence and the draft defence exhibited thereto any material disclosing an arguable defence to such claim. His Lordship, however, considered the defence advanced to the plaintiff’s claim regarding the 1st to 3rd defendants’ appointment as directors to be at least arguable and gave leave to the defendants to file and serve a defence regarding such claim. Parties’ positions on merits at the hearing 37.Mr Cheng deals with merits in one sub-paragraph (i.e. paragraph 8(1)) of his skeleton argument as follows:
38.The defence contains 43 paragraphs pleading to the SOC paragraph by paragraph. I believe it is fair to say that all the positive averments in the defence (notably in paragraphs 4, 13, 18 and 32 thereof) are pleaded expressly as responses to paragraphs of the SOC going to the claim based on malicious falsehood. Contrary to paragraph 8(1)(a) of Mr Cheng’s skeleton argument, paragraphs 13 and 18 of the defence plead to paragraphs 25.1 and 25.8 of the SOC which concern malicious falsehood arising from the 1st Statement. And contrary to paragraph 8(1)(b) of Mr Cheng’s skeleton argument, paragraph 32 of the defence plead to paragraphs 29.5 and 29.8 of the SOC which concern malicious falsehood arising from the 2nd Statement. 39.Insofar as libel is concerned, the defence is on its face consisting of just admissions and non-admissions/denials. 40.More particularly, the defendant has admitted the publication of the Statements and their reference to the plaintiff as follows:
41.As for the defamatory (ordinary and natural) meanings attributed by the plaintiff to the Statements (in SOC paragraphs 24, 28 and 32), the defendant does not admit the same and pleads that it “will rely on the plain wordings” of the Statements. See paragraphs 12, 30 and 37 of the defence. The defendant has, however, not put forward any meanings of the “plain wordings” of the Statements that are different from the ordinary and natural meanings contended for by the plaintiff in the SOC. 42.Nor has the defendant expressly raised any of the established substantive defences to libel, such as justification, in respect of any of the Statements. 43.Mr Pow SC accepts that the court has to deal with the Time Extension Summons first. Counsel further accepts that the court should have regard to the defence in determining the 2 summonses. And having reviewed the defence, Mr Pow SC indicates that the plaintiff would proceed with the Default Judgment Summons only on the cause of action in libel, to which the defendant has prima facie not raised any arguable defence. In view of the state of the defence as analysed in paragraphs 38 to 42 above, this is an understandable assessment or position. 44.In other words, the plaintiff is prepared to let the defence relating to malicious falsehood stand. The plaintiff is also leaving the adjudication of his assertions of falsity and malice insofar as they are made also in support of his claim for aggravated and/or exemplary damages for libel[3] to the stage of assessment of damages. 45.On this basis, Mr Pow SC takes me through the SOC as it relates to libel and those parts of the defence pleading thereto with a view to showing that the defendant has not raised any arguable defence to libel. 46.However, much to the surprise of both the plaintiff and the court, after Mr Pow SC has completed his submission on the Default Judgment Summons on the libel claim, notwithstanding the absence of any express pleading of justification or fair comment, Mr Cheng’s submission in court seeks to construct a case of justification and fair comment by deploying paragraphs of the defence pleaded in answer to malicious falsehood. 47.Such submission immediately gives rise to 2 concerns. 48.First, the defence of fair comment only applies to expressions of opinion, not to defamatory allegations of fact. The contents of the Statements are factual in nature. They do not contain any expression of opinion. The defence of fair comment is therefore patently inapt in any event. 49.Second, Order 82 rule 3(2) provides:
Focusing on justification, it would be apparent from what I have already said in paragraphs 38 to 42 above that the defence, as presently pleaded, does not identify which of the words complained of the defendant alleges are statements of fact or provide the facts or matters the defendant relies on in support of the allegation that the words are true. The defendant’s breach of this rule means that Mr Pow SC had no inkling until Mr Cheng’s submission in court that the defendant would seek to justify the Statements, not to mention how it would do so (though this does not prevent counsel from doing his best to assist the court). 50.I strongly disapprove of the way in which the defendant raises justification. Mr Cheng himself describes the defence as being badly drafted. However, it does not mean that the court can or should ignore the proposed defence of justification. A defendant opposing an application for default judgment and seeking time to file and serve a defence out of time or applying to set aside a default judgment may demonstrate a meritorious defence by affidavit, which may or may not include a draft defence. If justification is shown to be arguable, the defendant may apply for leave to amend the defence. 51.The question raised by Mr Cheng’s submission in court is whether it is arguable that the matters pleaded by the defendant to refute malicious falsehood, as identified by Mr Cheng’s oral submission, also prove the Statements to be true in substance and in fact. In this regard, Mr Pow SC has pleaded multiple defamatory (natural and ordinary) meanings in respect of each of the Statements. Mr Cheng accepts that the plaintiff is entitled to default judgment if any one such meaning is not arguably justified. 52.On this note, I turn to the questions whether each of the Statements is defamatory of the plaintiff and, if so, whether the defendant has, as developed by Mr Cheng’s submission in court, shown that it has an arguable defence of justification. Evidence 53.While I must consider the plaintiff’s entitlement to default judgment with reference only to the SOC without looking at any evidence (see RHC Order 19 rule 7(1)), with regard to the issue of justification, I can and should look at evidence, if available, particularly in assessing whether the matters relied upon by the defendant in proof of justification are credible or sustainable. 54.In this regard, although the defendant has chosen not to adduce any affidavit evidence, the plaintiff has placed before the court:
55.I have been informed by counsel for the plaintiff that the total amount of pre and post-judgment interest payable by the defendant on the Judgment Debt Principal adds up to HK$10,687,195.90. 56.It is also pertinent to note that the defendant was further ordered by High Court Judge Seagroatt to pay the plaintiff’s costs of the amendment application on essentially the basis that the defendant should have agreed to the amendment. The Deputy Judge said at pages 2R-3B of the transcript of the 2.6.2017 Hearing:
1st Statement 57.I have already set out the 1st Statement in paragraph 11 above. It is the plaintiff’s case, as pleaded in paragraph 24 of the SOC, that the 1st Statement in its ordinary and natural meaning meant and was understood to mean that:
58.I have reviewed the 1st Statement and agree with the plaintiff that it conveyed these meanings, the first and second ones directly and the others inferentially. 59.In justification of the words “是次被判敗訴主要的原因，是程序敗訴而非事實敗訴，意思是並非因為培正小學在籌款興建大樓之事上做錯了甚麼事情，法院亦未有作出任何事實上的裁定” in the first paragraph of the 1st Statement, Mr Cheng refers to and relies on paragraph 13.1 of the defence which pleads that no trial has taken place, and that there was no factual finding by the court, in the Action. 60.Further, in justification of the remaining words in the first paragraph “在訟案中，原告方要求我們提供大量資料，其中包括部份根本不存在的資料，例如按過去我們的會議常規，通常以舉手大多數贊成通過議案，但對方要求我們提交表決議案時，是以幾票對幾票通過，與及誰投贊成票，誰投反對票。基於以上原因，控方指我方未能提供足夠資料，因而被判敗訴”, Mr Cheng refers to and relies on paragraph 18 of the defence which pleads the plaintiff’s application in the Action for further and better particulars of the names and identities of the individuals and/or bodies of, inter alia, the defendant and/or the School that had allegedly made the decision to redevelop the then School Hall into the New Education Building and of the circumstances and occasions such individuals and/or bodies so decided. 61.It appears to me that the plaintiff derives the first and second meanings from the first paragraph of the 1st Statement. The matters pleaded in paragraphs 13.1 and 18 of the defence go to the point that the plaintiff obtained the Judgment in the Action following the procedural default by the defendant. However, as I see it, they are not sufficient to justify the further suggestions that the plaintiff’s case in the Action had no merits or that the plaintiff’s factual assertions in the Action were not true (conveyed by the words “意思是並非因為培正小學在籌款興建大樓之事上做錯了甚麼事情”). 62.Indeed, any such suggestions are not sustainable. Notwithstanding the non-admission in paragraph 23 of the defence to paragraph 25.15 of the SOC, pages 2T-3H and 4H-I of the transcript of the 13.7.2016 Hearing clearly record the agreement by counsel then appearing for the defendant (not Mr Cheng) with the submission by counsel appearing for the plaintiff that all the pleas in the statement of claim in the Action are deemed to have been admitted by the defendant as a result of the striking out of the defence. This submission was made to justify departure from the rule of practice that the court does not generally allow declaratory relief to be granted by consent without a trial. It was accepted by the Deputy Judge who declared in paragraph 1 of the Judgment that the defendant held the plaintiff’s gift of HK$20 million on constructive trust for the plaintiff. 63.This is sufficient to ground default judgment for libel in favour of the plaintiff in respect of the 1st Statement. For the sake of completeness, in justification of the words “唯我方亦須先退還該筆捐款連利息，超過2000萬元，這對培正小學來說當然會帶來沉重的經濟負擔，甚至可能要考慮發動募捐以舒緩壓力” in the second paragraph of the 1st Statement, Mr Cheng refers to and relies on paragraph 13.3 of the defence which simply pleads that the return of the Judgment Debt Principal (HK$20 million) had not been contemplated by the defendant in planning the budget of the School prior to the Action and has thereby caused financial hardship to the School. 64.However, the sting of this paragraph is that the plaintiff’s harassing conduct caused serious financial hardship to the School (i.e. the fourth meaning contended by the plaintiff). The defendant’s oversight in budgeting for the return of the Judgment Debt Principal with interest is neither here nor there. The Judgment resulted from the Action by the plaintiff against the defendant. The defendant was ordered by the court to return the monies. The Action cannot possibly be regarded as harassment or otherwise wrong. 65.In any event, I note that, to show the falsity of the allegations that the plaintiff’s harassing conduct caused serious financial hardship to the School and that the School has been placed under financial hardship for having to return the Judgment Debt principal with interest, paragraph 25.17 of the SOC pleads (1) that according to the audited financial statements subsequently disclosed by the defendant, the School had current assets worth HK$134,933,963.87 as at 31 August 2015 (and the defendant had current assets worth HK$59,265,705.73 as at 31 December 2015); (2) that the Judgment required the defendant, not the School, to repay the Judgment Debt Principal with interest; and (3) that no serious financial hardship could have been caused to the School by reason of the Judgment. Indeed, the information disclosed by the financial statements disclosed by the defendant is admitted in paragraph 25 of the defence. In such circumstances, I find the suggestion that the Action and the Judgment caused financial hardship to the School to be unarguable. 66.Lastly, in justification of the words “現時，顧明均先生仍在不同議題上與浸聯會作出多翻糾纏” in the last paragraph of the 1st Statement, Mr Cheng refers to and relies on paragraph 4 of the defence which:
67.It appears to me that the third and fifth meanings of the 1st Statement pleaded by the plaintiff are derived from the words “現時，顧明均先生仍在不同議題上與浸聯會作出多翻糾纏”. I have given serious attention to Mr Pow SC’s observations that the proceedings mentioned in paragraph 4.2 of the defence were taken by the plaintiff against parties other than the defendant (with the exception of HCA 2337/2016 to which the defendant is joined as a defendant) and that the fact that those proceedings were struck off does not necessarily mean that they were an abuse of process which would depend on the ground upon which the orders for striking out were made. However, given the pendency of HCA 1481/2014, HCA 1619/2014 and HCA 2337/2016 against the defendant and that the defendant’s burden at this stage is not to prove justification, I find on balance the proposed defence of justification to be arguable insofar as the third and fifth meanings of the 1st Statement are concerned. 2nd Statement 68.I have already set out the 2nd Statement in paragraph 16 above. It is the plaintiff’s case, as pleaded in paragraph 28 of the SOC, that the 2nd Statement in its ordinary and natural meaning meant and was understood to mean that:
69.I have reviewed the 2nd Statement and agree that paragraphs 2 to 4 thereof conveyed these meanings. 70.In justification of the words “連帶的利息費用，法庭判決由雙方自行協議” (paragraph 2) and “律師及會計師的計算下，浸聯會願意支付30多萬的利息，惟顧先生不願商討，堅持1,400萬高額利息賠償” (paragraph 3), Mr Cheng refers to and relies on paragraph 32 of the defence which avers that:
71.In justification of the words “顧在沒事先通知下入稟法院申請本聯會清盤，意在製造恐慌” (paragraph 4), Mr Cheng refers to and relies paragraph 25 of the defence which admits part of paragraph 25.17 of the SOC, as set out in paragraph 65 above. 72.It is clear to me that the defendant cannot possibly justify the first, third, fourth, fifth and sixth meanings of the 2nd Statement pleaded by the plaintiff with reference to the matters set out in paragraph 25 and 32 of the defence. 73.First, the Judgment (set out in full in paragraph 6 of the SOC and admitted in paragraph 5 of the defence) plainly did not order the parties to negotiate the amount of interest payable by the defendant to the plaintiff. Nor did the defendant raise any facts from which it can be concluded that the plaintiff unreasonably refused to engage in such negotiation. Indeed, the extract from the transcript of the 2.6.2017 Hearing quoted in paragraph 56 above suggests the contrary to be closer to the truth. 74.As for the plaintiff’s use of the winding-up procedure, the intended resort to which the plaintiff had plainly given advance notice to the defendant (see paragraphs 10 and 13 above), Mr Pow SC has drawn my attention to Re Yueshou Environmental Holdings Limited, HCCW 142/2013, unreported, 16 July 2014, in which Mr Justice Harrise held at [11]-[12] that a creditor is entitled to serve a statutory demand in respect of a debt to which he believes there is no defence; that if the debt is not satisfied he has locus to present a petition to wind up the company and that it is acceptable for a creditor who has an unanswerable debt to petition to wind up a company known to be solvent as a means to recover his debt. 75.For the sake of completeness, I leave open the justification of the second and seventh meanings of the 2nd Statement pleaded by the plaintiff because the amount of interest demanded by the plaintiff did exceed the amount of interest payable under the Judgment as amended on 2 June 2017. See paragraph 55 above. 3rd Statement 76.I have already set out the 3rd Statement in paragraph 18 above. It is the plaintiff’s case as pleaded in paragraph 32 of the SOC that the 3rd Statement in its ordinary and natural meaning meant and was understood to mean that:
77.I have reviewed the 3rd Statement and agree with the plaintiff that it conveyed these meanings. 78.In justification of the words “但顧明均先生堅持索取1,400萬的無理高額利息賠償，浸聯會並不同意此利息計算方法並願意與對方繼續商討，惟對方拒絕[對]話之外，更在明知浸聯會有足夠資產情況下突然入稟法院，申請浸聯會清盤” in the first paragraph of the 3rd Statement, Mr Cheng refers to and relies on:
79.In justification of the words “他人濫用司法程序” in the third paragraph of the 3rd Statement and the words “有關人士一而再，再而三的無理入稟，實屬刻意針對及濫用司法程序，最終幾乎癱瘓浸聯會上下運作，同工、教職員與學生首當其衝，受到無辜牽連” in the fifth paragraph, Mr Cheng again refers to and relies on paragraph 4.2 of the defence. 80.For the reason stated in paragraphs 64, 65 and 74 above, I find the defence of justification to be unarguable in respect of the first, fourth, fifth, sixth and seventh meanings of the 3rd Statement pleaded by the plaintiff. 81.For the sake of completeness:
Disposition 82.For the above-mentioned reasons:
83.The plaintiff also claims a final injunction restraining the further publication of the Statements. Given my conclusion on the claim for libel, there is no reason why the plaintiff should not be granted such an injunction in some form. However, given that I have found some of the meanings attributed by the plaintiff to the Statements to be potentially justifiable, I would like to hear from the parties as to the precise terms of the injunction. The plaintiff shall have 14 days from today to lodge and serve written submissions on the injunction, after which the defendant shall have 14 days to reply. 84.As for the claim for an apology, the plaintiff has reserved his position pending this decision. I hereby direct the plaintiff to inform the court and the defendant within 14 days from today whether he wishes to press the claim for such relief at this stage. 85.On costs, I do not see why the defendant should not pay the plaintiff’s costs of both the Default Judgment Summons and the Time Extension Summons. Indeed, Mr Cheng has in the course of the hearing acknowledged that, even if wholly successful, the defendant should pay the plaintiff’s costs of both applications. And I so order. 86.I also direct, on a nisi basis, that such costs should be taxed on an indemnity basis with certificate for two counsel. Without pre-empting the defendant’s argument to the contrary:
Mr Jason Pow SC and Mr Herbert Leung, instructed by Wilkinson & Grist for the plaintiff Mr Bosco Cheng, instructed by Lui & Law, for the defendant [1] The defendant and one Young Kwok Hung Clement were respectively the 1st and 2nd defendants in the Action. However, this action does not concern the latter. I will therefore omit reference to him in recounting the Action. [2] Same paragraph number in Hong Kong Civil Procedure 2018, Volume 1. [3] For which it is necessary to plead and prove that the defendant published the words complained of knowing they were false, or recklessly as to their truth or falsity, having calculated that the benefit to him would outweigh any compensation payable to the claimant. |
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