Yiu Shing Yin v. Kwok Yik Ho and Another
Read the full judgment text of DCCJ 4437/2016 on BabelCite. This District Court judgment was delivered on 28 March 2018.
1. This is a libel action arising out of some Chinese words ( “the Words” ) jointly published by the 1 st Defendant ( “Mr Kwok” ) and the 2 nd Defendant ( “Mrs Kwok” ) on a glass window at Shop 80 ( “the Shop” ), 1 st Floor, Fu Tor Loy Sun Chuen Stage 2 (富多來新邨第二期) ( “the Estate” ), Tai Kok Tsui, Kowloon, Hong Kong.
Cited by 6 cases · Cites 10 cases
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DCCJ 4437 / 2016 [2018] HKDC 514 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4437 OF 2016 _______
_______ Before: Deputy District Judge Kenneth K Y Lam in Court Date of Hearing: 26, 27 & 28 March 2018 Date of Judgment: 28 March 2018 Date of Handing Down Reasons for Judgment: 9 May 2018 _______________________________ REASONS FOR JUDGMENT _______________________________ Introduction 1.This is a libel action arising out of some Chinese words (“the Words”) jointly published by the 1st Defendant (“Mr Kwok”) and the 2nd Defendant (“Mrs Kwok”) on a glass window at Shop 80 (“the Shop”), 1st Floor, Fu Tor Loy Sun Chuen Stage 2 (富多來新邨第二期) (“the Estate”), Tai Kok Tsui, Kowloon, Hong Kong. 2.The publication of the Words and the fact that the Words were prima facie defamatory of the Plaintiff (“Mr Yiu”) had been admitted by the Defendants (“Mr and Mrs Kwok”). 3.The main issues in dispute were: -
4.The trial took 3 days. The only witnesses were the parties. 5.At the end of the last day, I resolved the Issues in Dispute in favour of Mr and Mrs Kwok, dismissed the action, ordered Mr Yiu to pay all costs of the action, including all costs reserved, to Mr and Mrs Kwok, to be taxed if not agreed, with Certificate for Counsel (“the Judgment”), and indicated I would be handing down my full reasons for the Judgment in writing, which I hereby do. Factual Background 6.The Estate had 682 units (residential plus commercial). It had an incorporated owners (“the IO”) but no management company. 7.Mr Yiu was an owner in the Estate and thus a member of the IO. He was once employed by the IO direct, on a monthly salary of HKD 12,000, for the position of “clerk” (文書). The role of Mr Yiu was akin to that of a management company. He did not have any other job. 8.Mr and Mrs Kwok were also owners in the Estate. They were thus members of the IO as well. They owned the Shop, from which they operated an aluminium window business called “Ho Wah Aluminium Co (豪華鋁窗公司)” (“the Business”). They had been married to each other for 30 years. The Evidence of Mr Yiu 9.Mr Yiu gave evidence first. I observed his demeanour, looked at the contemporaneous documents, and considered the probabilities of his evidence. I found Mr Yiu to be an evasive dishonest liar whose evidence, in so far as it was self-serving, was wholly unreliable, plainly ludicrous in certain parts, and rejected by me as false. 10.The following are some examples of how “plainly ludicrous” certain parts of Mr Yiu’s evidence really were: -
11.Mr Enzo Chow, Counsel for Mr Yiu, sensibly conceded in his oral closing that Mr Yiu’s evidence on the proxy forms, as summarized in paragraph 10(1) above, was “a bit ridiculous” and “a bit unbelievable”. 12.Mr Yiu alleged the Words were false. The Words were: -
13.Mr Yiu denied he consented to the Words being published by Mr and Mrs Kwok. The Evidence of Mrs Kwok 14.Mrs Kwok gave evidence next. I observed her demeanour, looked at the contemporaneous documents and considered the probabilities of her evidence. I found Mrs Kwok to be an honest and reliable witness who gave her evidence in a frank, candid and natural manner to the best of her ability. She struck me as a simple, sincere and humble lady. I accepted her evidence as entirely true. 15.Mrs Kwok said, and I accepted (more on that below), that the Words were substantially true in that (1) some of the proxy forms used in the election of Mr Yiu as Chairman of the IO were false or forged; and (2) it was indeed Mr Yiu who instructed a person nick-named Fat Ball (肥波) to vandalize the signs of the Business. Mrs Kwok also said, and I accepted (more on that below), that she and Mr Kwok published the Words with Mr Yiu’s oral consent. The Evidence of Mr Kwok 16.Mr Kwok gave evidence last. I also observed his demeanour, looked at the contemporaneous documents and considered the probabilities of his evidence. I found Mr Kwok to be an honest and reliable witness who gave his evidence in a frank, candid and natural manner to the best of his ability, just like Mrs Kwok. He struck me as a simple, sincere and humble man. I accepted his evidence as entirely true. 17.The evidence of Mr Kwok was similar to that of Mrs Kwok, which was not surprising as in my judgment they were both telling the truth. I did ask Mr Kwok additional clarification questions, which he answered. They related to Issue 3 (i.e. the question of consent). I shall deal with those below, when I deal with the Issues in Dispute one by one. Issue 1 – Justification 18.Justification (i.e. truth) is a complete defence to an allegation of defamation. In my judgment, justification had been established by Mr and Mrs Kwok. In this part of the Reasons for Judgment, I shall explain my reasons for so holding. 19.I must start by determining what the Words meant. 20.In paragraphs 4 & 7 of Mr Yiu’s Statement of Claim filed on 5th September 2016 (“the SoC”), Mr Yiu alleged the Words meant: -
21.Mr and Mrs Kwok originally denied the Pleaded Meanings in paragraphs 18 & 22 of their Defence filed on 16th November 2016 (“the Defence”), but in paragraph 2 of their Counsel’s written opening the denial was effectively abandoned. Mr and Mrs Kwok never pleaded any positive or alternative case on meanings. In the absence of an effective challenge, and having read the Words, I was satisfied the Words conveyed the Pleaded Meanings to hypothetical reasonable readers. 22.Starting with the 1st Meaning, I was satisfied on the evidence that Mr Yiu was indeed dishonest, unlawfully elected by means of forged proxies, and suspected of being involved in the crime of forgery. 23.The proxy forms [B/67 to 81] spoke for themselves. As I had briefly mentioned in paragraph 10(1) above, Mr Yiu accepted that 2 of the proxy forms (importantly, for the exact same unit of the Estate) produced at the trial [B/75 & 76] were signed and procured by him. The first of these [B/75] was fine, as it was genuine in the sense that it purported to be signed by Mr Yiu and was in fact signed by Mr Yiu. The second of these [B/76], however, was plainly a dishonestly forged document, as it purported to be signed by Mr Yiu’s mother (the form being in her name) but was in fact signed by Mr Yiu. Of course, under cross-examination, Mr Yiu alleged his signature on his mother’s proxy form was authorized by his mother, but his mother never gave evidence. I drew the inference that the evidence of Mr Yiu’s mother would not have helped Mr Yiu at all, and I rejected Mr Yiu’s explanation as false. I further rejected Mr Yiu’s allegation that he created these forms for the purpose of getting “assistants” to help him at the AGM. This allegation of Mr Yiu was plainly nonsensical, for the reasons set out in paragraph 10(1) above. In my judgment, the substantially more likely scenario was that Mr Yiu dishonestly forged the proxy form at [B/76] with the intention of using it to get additional votes at the AGM, and thereby get himself elected as Chairman of the IO. On the evidence adduced, I found this to be what happened. 24.Mr Enzo Chow, Counsel for Mr Yiu, correctly pointed out at his oral closing that there was no evidence Mr Yiu had been given 2 votes at the actual voting. That was a wholly accurate but irrelevant observation. A forgery which did not create the desired result would be just as bad as a forgery which did. The parties are in agreement that even if the 1st Meaning was only “substantially true” but not literally and entirely true, the defence of justification would still succeed. 25.Further, the evidence did not stop at just those two proxies at [B/75 & 76]. In paragraph 25 of the written closing lodged by Mr Damian Wong, Counsel for Mr and Mrs Kwok, Mr Wong helpfully set out in table format those proxies for the AGM which were plainly fake or forged in the sense of not being signed by the registered owners in question. I accepted that table (“the Table of Fake Proxies”) as accurate and I set out the same here: -
26.Mr Yiu had been properly cross-examined on the matters set out in the Table of Fake Proxies. Mr Yiu was fully aware of the allegations made against him and was given a full opportunity to explain. It would be unnecessary to set out all questions and answers but one example would be helpful. 27.For the proxy at [B/73], purportedly signed by a person who was dead at the time of signature, and purportedly appointing Mr Yiu as a dead person’s proxy, the following exchange took place during the cross-examination of Mr Yiu by Counsel for Mr and Mrs Kwok: -
28.As one can see, Mr Yiu not only denied knowledge of the fake proxy, he denied knowledge of the fact that the registered owner had passed away before the date of his purported signature (thus making it impossible for the signature to be genuine). 29.However, towards the end of the very same day, when I asked Mr Yiu clarification questions myself, Mr Yiu said something completely different in relation to this, as follows: -
30.As can be seen from the above, what Mr Yiu said when I asked him clarification questions was different from what he had previously said under cross-examination. He changed his evidence to say he knew about the death of the owner, he knew the deceased had a single son who operated an Internet Café in the Estate, and he knew that was why (according to him) the police thought the proxy at [B/73] was fine. None of these came up when he was cross-examined on the exact same subject just earlier that day. In my judgment, coupled with the way in which Mr Yiu gave his answers in the witness box, this showed Mr Yiu was dishonest and unreliable. I did not accept Mr Yiu’s explanations. 31.All in all, on the evidence adduced, I was more than satisfied the proxy at [B/73], purportedly signed by a person who was dead at the time of signature, was a forged document. Since Mr Yiu appeared to be the only person who would benefit from the use of the document, and he did not offer any credible explanation as to why such a forged document existed, I drew the inference, on balance of probabilities, that Mr Yiu was involved in the creation or usage of this forged document. 32.I was aware Mr Enzo Chow, Counsel for Mr Yiu, pointed out at paragraph 34(d) of his written closing that Mr Yiu was never prosecuted for forgery, or indeed any other criminal offences, in relation to the proxies. That was a wholly accurate but irrelevant observation. Mr and Mrs Kwok only had to prove that the 1st Meaning was substantially true on balance of probabilities. The mere fact that there was no criminal prosecution (where the standard of proof would be “beyond reasonable doubt”) was neither here nor there for the purposes of this civil action. 33.Similarly, I was aware Mr Chow also pointed out at paragraph 42 of his written closing that Mr Yiu was never arrested by the police. That was, likewise, an accurate but irrelevant observation. There could be many reasons why an arrest was never made. More importantly, this Court was and remains wholly independent of the police. Even if the police took the view that no crime had been committed by Mr Yiu, for the purposes of this civil action this Court could look at all the evidence independently and take a different view. That was part of what it meant to have a truly independent judiciary in this territory. 34.Indeed, Mr Chow’s reliance on the letter from the police dated 16th September 2015 [A/71] (“the Police Letter”) in paragraph 40 of his written closing was likewise misguided. I thank Mr Chow for drawing my attention to it, but with respect it did not assist. 35.First of all, the Police Letter did not in fact clear Mr Yiu of all wrongdoings. It simply expressed the opinion of the police at the time that there was “currently (現時)” insufficient evidence to press charges. The police said in the very next sentence that if they could in the future obtain further information showing someone was involved in a crime, they would reopen and review the matter. The Police Letter was therefore more in the nature of a “status report”, which was subject to updates and revisions, as opposed to an indication of the final and conclusive conclusion on the guilt or innocence of any person. 36.Secondly, even if the Police Letter stated a conclusion which was truly final (it did not), and the conclusion was something other than a record of conviction or admission, as a matter of law that conclusion could not be used directly in the manner contemplated by Mr Chow. 37.In the well-known case of Secretary of Trade and Industry v Bairstow [2004] Ch 1 at 7 to 12 (paragraphs 15 to 27), Sir Andrew Morritt V-C of the English Court of Appeal made it clear that under common law rules, the findings of a judge in one set of proceedings were not admissible in a different set of proceedings, since the findings of a judge were just the opinions of that judge and, subject to certain exceptions, opinion evidence was generally inadmissible in English court proceedings. Locally, in Bank of China v Ng Lai Fong (HCA 1117/2006, 30th August 2013, paragraphs 11, 12, & 20), Recorder Pow SC applied the Bairstow ratio to findings set out in Hong Kong police letters and stated, correctly, that if litigants would like to rely on the opinions of 3rd parties as stated in such letters, they must first apply for leave to adduce expert evidence in the normal way. Opinion evidence which would otherwise be inadmissible in law would not become admissible just because it was set out in a police letter and unchallenged. 38.In my judgment, these principles are trite and correct. When properly applied to the Police Letter in this case, these principles prohibited Mr Chow from using the Police Letter in the manner contemplated by him, even if it would otherwise be helpful to Mr Yiu’s case. No leave had ever been sought or granted for Mr Yiu to call the police officer in question as an expert, it was never established that the officer in question could be said to be an expert, and the opinion of that officer was not admissible. Even if the opinion of that officer (who was never called as a witness of any kind, and was never cross-examined) was somehow admissible, as he had never explained the factual basis for his opinion, no weight would be given to his opinion. 39.With all of the above as the factual background, the inference that Mr Yiu was unlawfully elected by means of forged documents and was suspected of being involved in the crime of forgery was irresistible when I looked at the record of what supposedly happened at the election. 40.The AGM’s signed minutes was reproduced at [B/101] and it accurately recorded that at the beginning of the AGM, the Chairman of the IO at the time discovered “suspicious matters” when he made phone calls to verify the proxies lodged for the AGM, and had (together with a solicitor acting for the IO) reported the matter to the police. The solicitor explained at the AGM that the IO found forged proxies, the police was investigating the matter, and that in his view the AGM should be adjourned. The AGM eventually “went part-heard”, and the second part of the AGM took place on 16th June 2015 (“Part II of the AGM”). Mr and Mrs Kwok had given similar evidence, which I accepted as true, on these matters [A/99 to 102] [A/172 to 175]. 41.The signed minutes for Part II of the AGM was reproduced at [B/109], and it was curiously certified by Mr Yiu (as opposed to Mr Kung, the person who chaired Part II of the AGM) as accurate at [B/112]. It said, even more curiously, that Mr Yiu was supposedly elected as new Chairman of the IO with 23 votes, which purportedly translated into 2,692 undivided shares [B/111]. 42.The above was curious as it was literally impossible. Mr Yiu had been fairly cross-examined on this and he was shown the distribution of undivided shares in the DMC for the Estate [B/97-1]. It was crystal clear from a cautious reading of the DMC that 23 votes could not translate into 2,692 shares. It was a fair line of cross-examination since Mr Yiu certified himself as being elected as Chairman of the IO with 2,692 undivided shares [B/112]. Mr Yiu was unable to explain why he certified the impossible. 43.Mr Yiu could not have been lawfully elected as Chairman of the IO by 2,692 shares, in the manner as he himself had falsely certified in the minutes reproduced at [B/109]. It was a mathematical impossibility. 44.The matter did not end here. One would have thought that Mr Yiu as the person who started this action, knowing that Mr and Mrs Kwok had pleaded (in the alternative) that the 1st Meaning was substantially true [A/17] and were thus effectively accusing Mr Yiu of fraud, would be keen to give full discovery of all documents relating to the AGM and Part II of the AGM, including getting his hands on and then disclosing true copies of all proxies and voting papers actually used, doing the calculations as to the undivided shares involved, in order to prove the lawfulness of his purported election as Chairman of the IO, and his innocence generally. However, Mr Yiu plainly did not give proper discovery of all relevant documents and did not provide this Court with credible reasons why this was so. 45.The following exchange took place when I asked Mr Yiu why there were just 6 groups of documents in his List of Documents dated 21st April 2017 (“Mr Yiu’s List of Documents”): -
46.As one can see from the above, Mr Yiu claimed to be unaware of the obvious inadequacy of his own disclosure. I did not believe him. 47.That clarification question was necessary because previously, Mr Yiu was repeatedly, and quite properly, cross-examined by Counsel for Mr and Mrs Kwok on his obvious non-disclosure of relevant and material documents, firstly in this manner: -
48.And then as follows: -
49.It was necessary for me to set out the above as it showed how evasive Mr Yiu was. The point made by Counsel for Mr and Mrs Kwok was a simple one. Mr Yiu plainly knew this civil action was partly if not primarily about the truth of the Pleaded Meanings. He signed statements of truth for his two pleadings. Any person of normal intelligence, even if not represented (and Mr Yiu was all along properly represented, firstly by solicitors and then by solicitors and counsel), would be aware that the main documents to be disclosed to Mr and Mrs Kwok or showed to this Court must include the originals or true copies of the minutes for the AGM and Part II of the AGM, signed proxy forms, used voting papers, etc. Yet, they were never disclosed in any part of Mr Yiu’s List of Documents. I did not accept any of the explanations given by Mr Yiu for his obvious and serious non-disclosure. He must have been aware full disclosure was a serious and on-going obligation and that all relevant documents must be disclosed. His lawyers would in any case be aware the Court of Appeal had in Deak & Co (Far East) Ltd v NM Rothschild & Son Ltd [1981] HKC 78 and many more cases thereafter applied the Peruvian Guano test in Hong Kong. 50.As to the consequence of material non-disclosure, Yuen JA of the Court of Appeal said this in L v C [2007] 3 HKLRD 819 at paragraph 191(2): -
51.I respectfully agreed with what Yuen JA had said. 52.In the absence of credible explanations after Mr Yiu had been given a full opportunity to explain his obvious and serious non-disclosure, I drew the inference that Mr Yiu knew proper discovery on his part would not have helped him, most probably because proper discovery would show that he was unlawfully elected by fake or forged proxies, and that he was dishonestly involved in the forgery. On the balance of probabilities, it was more likely that Mr Yiu’s non-disclosure was deliberate and dishonest. On that basis, I also resolved any uncertainty as to the lawfulness of Mr Yiu’s election, etc., against his favour. 53.It was by reason of all of the above that I was satisfied on the evidence that Mr Yiu was indeed dishonest, unlawfully elected by means of forged proxies, and suspected of being involved in the crime of forgery. The 1st Meaning was substantially true. 54.Moving on to the 2nd Meaning, I was satisfied on the evidence that Mr Yiu had instructed his agent to criminally damage the signs of the Business and was thus involved in the crime. I shall explain. 55.Firstly, as mentioned in paragraph 10(2) above, when Mr Yiu was cross-examined on the truth of the 2nd Meaning, he ridiculously alleged the words “食屎、呃錢、屎忽鬼” [English translation: “Eats Shit, Cheating People’s Money, Arsehole”] written on a promotional sign of the Business [B/17] could be part of its original format (格式), as opposed to the result of criminal acts of vandalism. I was fully satisfied, after receiving live oral evidence from Mr and Mrs Kwok, that they did not include such derogatory, offensive and insulting words as part of the format of the promotional sign, and that Mr Yiu was trying to distance himself, not just from the allegation that he caused the damage, but from the irrefutable fact of damage. I drew the inference, after carefully observing the way Mr Yiu gave those answers before me, that Mr Yiu gave those answers (which I rejected as completely false and ridiculous) because he was the person who caused the damage. 56.Secondly, Mr Yiu demonstrated, through the way he gave his oral evidence, that he hated, and had at all material times always hated, Mr and Mrs Kwok. The hatred was immense. That was obvious to me when I was receiving Mr Yiu’s evidence first hand. That made it very likely, on balance of probabilities, that the 2nd Meaning was true. 57.Thirdly, Mr and Mrs Kwok had given sworn evidence, which I accepted as entirely true, to the effect that (1) Fat Ball admitted to them he vandalized their signs on Mr Yiu’s instructions; and (2) Mr Yiu admitted to them he was the one who ordered the vandalism. This also showed that the 2nd Meaning was true. 58.For the 2nd Meaning, Mr Chow raised various issues on behalf of Mr Yiu, which I should address one-by-one. 59.Firstly, Mr Chow said there was exaggeration in the Words in that vandalizing bills (招紙) was exaggerated into vandalizing signboards (招牌). I accepted that looking at the evidence, most of the vandalism was in relation to bills instead of signboards, but the parties agreed that even if the 2nd Meaning was only “substantially true” but not literally and entirely true, the defence of justification would still succeed, so I could not see any merits in the “exaggeration” complaint. In my judgment, the 2nd Meaning was still substantially true even though most of the vandalism appeared to be in relation to bills instead of signboards. 60.Secondly, Mr Chow said Mr and Mrs Kwok did not personally witness the process of vandalism – they only saw the result. I accepted that as true but irrelevant. This is a civil case and Mr and Mrs Kwok only had to prove the substantial truth of the 2nd Meaning on balance of probabilities, which they did. Their case would of course be substantially stronger if one or both of them had seen the process of vandalism, but the absence of such direct evidence was not fatal. 61.Thirdly, Mr Chow said Fat Ball was never called as a witness by Mr and Mrs Kwok. Again, that was true but irrelevant. It was the case of Mr and Mrs Kwok that Fat Ball was an agent of Mr Yiu, and the person who vandalized their signs on instructions. It was, with respect, unrealistic for Mr Chow to in effect suggest that the victims of a crime should call the criminals responsible for that crime to testify for them. In fact, one should perhaps ask why Mr Yiu did not himself ask Fat Ball to testify for him and deny the oral conversations on oath, if it was his case that the conversations never took place, or the “oral admissions” were never uttered. 62.Fourthly, Mr Chow said one of the “oral admissions” which came up during oral evidence was never stated in the witness statements of Mr and Mrs Kwok, and that I should reject it as a recent fabrication. I did consider this submission carefully. In the case of Mrs Kwok, the exchange in question was as follows: -
63.I agreed I should treat evidence which came up during cross-examination but was not stated in witness statements with some scepticism and with great caution, which I did in relation to the evidence recited above. However, at the end of the day, I must assess the truth or falsity of the oral evidence by reference to all relevant considerations. On the authority of In re B (Children) [2009] 1 AC 11 (at paragraph 31, per Baroness Hale), my own overall impression of the witness was one such consideration. On the authority of Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 (at paragraph 37, per Bokhary PJ), I was entitled to take the demeanour of the witness into account with care. My overall impression of Mrs Kwok, after considering the whole of her evidence, its inherent probabilities, and taking her demeanour under cross-examination into account with care, was that she was honest, reliable, frank, candid, simple, sincere and humble. I accepted her evidence, including her evidence on both “oral admissions”, as entirely true, even though one of the “oral admissions” had not been set out in her witness statement, because in my assessment she told this Court the truth. 64.In the case of Mr Kwok, the exchange about “oral admissions” was as follows: -
65.Mr Chow made the same complaint in relation to Mr Kwok’s evidence. My overall impression of Mr Kwok, after considering the whole of his evidence, its inherent probabilities, and taking his demeanour under cross-examination into account with care, was that, just like Mrs Kwok, he was honest, reliable, frank, candid, simple, sincere and humble. I accepted his evidence, including his evidence on both “oral admissions”, as entirely true, even though one of the “oral admissions” had not been set out in his witness statement, because in my assessment he told this Court the truth. 66.Fifthly, Mr Chow said it was incredible that notwithstanding these “oral admissions”, Mr and Mrs Kwok did not call the police. I saw no merits in this complaint. Mrs Kwok gave a perfectly logical explanation when asked, to the effect that they did not call the police because it would be futile. They took the view that the police could not stop the crime from taking place, as it was impractical to monitor the actions of Fat Ball round the clock. With that explanation from Mrs Kwok, which I accepted as true, there was nothing extraordinary about their decision not to call the police. 67.Finally, Mr Chow attempted to slip in a point to the effect that the signs of the Business were located in the Estate’s common areas so that the IO had the right to remove them as they wished. I saw no merits in the attempt as it was Mr Yiu’s own case (as mentioned by himself in the witness box for no less than 6 times) that there was no damage or removal at all. It was never any party’s case that the IO passed a valid resolution authorizing the vandalism or removal, and no such resolution had ever been produced. In fact, it was never any party’s case that the vandalism or removal was the result of a lawful act of building management. Even if an object was placed or posted in the common areas of the Estate, this could be consented to by the IO, in which case it could stay where it was and be protected by the law. Having signs posted in the common areas of the Estate could be in the best interests of the Estate, and owners may vote in favour of it. I was satisfied the damage in question was caused by the criminal acts of Fat Ball and Mr Yiu, as opposed to any lawful act of building management. In fact, if there was any legal right to remove the signs, it would be vested in the IO itself, or the registered owner of the walls in question. It would never be vested in Mr Yiu personally. Unless authorized by the IO or the registered owner of the walls in question by proper resolutions, what Mr Yiu did could never have been lawful. 68.It was by reason of all of the above that I was satisfied on the evidence adduced that Mr Yiu had instructed his agent, namely, Fat Ball, to criminally damage the signs of the Business and was therefore involved in the crime. The 2nd Meaning was also substantially true. 69.Since the Pleaded Meanings were substantially true, Mr and Mrs Kwok had a complete defence in this action and Mr Yiu’s claim failed. I would, however, proceed to deal with the other issues as well. Issue 2 – Qualified Privilege 70.Mr Enzo Chow, Counsel for Mr Yiu, made it clear in his oral opening that he had abandoned all allegations of malice. The only issue in relation to the defence of qualified privilege which I had to consider was whether the publication of the Words took place on an occasion of qualified privilege and was not too wide. 71.In my judgment, the publication of the Words by Mr and Mrs Kwok plainly took place on an occasion of qualified privilege and was not too wide. 72.It was trite that for the purpose of the law of qualified privilege co-members of an incorporated owners have a common interest in matters relating to the affairs of the incorporated owners, and publications relating to the affairs of the incorporated owners between fellow co-members must be prima facie protected by “common interest qualified privilege”: Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 (paragraph 69, per Lok J). 73.As the Words in our case were about (1) the IO’s election; and (2) the way the purported Chairman of the IO had been treating members of the IO, all members of the IO shared a common interest in receiving the Words. The publication of the Words was therefore prima facie protected by “common interest qualified privilege”. The real issue was whether the publication was too wide. 74.The complaint of Mr Chow, Counsel for Mr Yiu, was that Mr and Mrs Kwok published the Words in the Shop, and visitors who were not owners of the Estate would also be able to read the Words. That, suggested Mr Chow, made the publication too wide. 75.Having carefully considered Mr Chow’s submission on this, I rejected it. If resources and practicalities would never be issues, one may say all owners who would like to communicate with other owners should always do so by sealed envelopes clearly marked “private and confidential – for the eyes of the owners only” inserted into the owners’ letter-boxes so that even tenants of owners (or their cohabitants) would not be reading the relevant words. Requiring all owners in large real estate developments to do so for all potentially defamatory communications on matters relevant to the management of those developments would in my judgment render our defamation law so detached from reality as to be bringing it into disrepute and render the protection offered by qualified privilege wholly illusory. In my judgment, Mr and Mrs Kwok should be given a reasonable margin for the extent of their publication. For as long as the primary readers would be owners in the Estate, even though some non-owners, including visitors to the shopping arcade in the Estate, could also be reading the Words, the publication was not too wide. 76.My conclusion could be different if the shopping arcade was as busy as Pacific Place Mall, but the evidence did not show this to be the case. My conclusion could also be different if the publication took place at a bus stop for a busy route or outside an MTR station, as was the case in Lau Liu Fai v林其東 [2018] HKCFI 10 (paragraphs 9, 15, 69, 70 & 75, per Recorder Pow SC), but this was not the case. Finally, my consideration could be different if the method of publication was such that even vehicle passengers passing through the vicinity en route to other buildings would also be able to read the words, as in Mok Kam Kwai v Lam Mo Fat (HCA 1868/2010, 6th March 2014) (paragraphs 2, 5, 6 & 60, per Chung J), but the evidence did not show this to be the case. 77.On the evidence before me, I was satisfied the publication of Mr and Mrs Kwok was not too wide. 78.A few more things must be said about Mr Chow’s complaint on this issue. 79.First, it must be recorded that Mr Yiu chose not to adduce any direct evidence on readership. Not a single non-owner had been called to give evidence to the effect that he or she was not an owner in the Estate but had read the Words when they were published at the Shop. In the absence of such direct evidence, I was only satisfied some non-owners could have read the Words. I was not at all satisfied any non-owner actually read the Words. Mr Yiu’s own indirect evidence on readership was rejected by me as unreliable, given his general unreliability as a factual witness. 80.Second, as Mr Chow accepted in paragraphs 57 & 61(b) of his written closing, the defamation law of Hong Kong recognized the concept of incidental or ancillary privilege. See, e.g., Drummond v Kwaku [2000] 1 HKLRD 604 at 630-C, per Peter Cheung J (as Cheung JA then was), or Tuet Kazim v Ma Nurudeen [1987] 3 HKC 382 at 390-H (per Macdougall J). A more thorough discussion on the developments of the law in this area could be found in Gatley on Libel and Slander (12th Edition, 2013), where in paragraph 14.76 on page 627 the learned editors said, inter alia, that: -
81.I agreed with what the learned editors of Gatley had said in the passage above. 82.More importantly, the learned editors of Gatley then set out a long list of cases which showed that for as long as the mode of publication chosen could be said to be reasonable in the circumstances, common law courts around the world would be quite prepared to hold that publication to “incidental strangers” would not destroy the privilege. 83.Obviously, none of those cases was binding on me. I would, however, cite one of them to illustrate the point. In Chen Cheng v Central Christian Church [1999] 1 SLR 94, a decision of the Singaporean Court of Appeal, a prima facie defamatory publication by way of an article entitled “AOG & CCC – Are they Cults?” in a religious magazine called “Impact” with a circulation of around 6,000 intended to be read by members of the evangelical community was said to be acceptable even though some of the readers would be non-members with no interest in receiving the words in question. In so holding, LP Thean JA of the Singaporean Court of Appeal applied the passage in Gatley (then only in its 9th Edition) referred to above with approval, confirming it to be a correct statement of the law. 84.Also of relevance was what was said in the American text of Restatement of the Law (2d) of Torts, cited in footnote 547 on page 628 of Gatley with the learned editors’ approval. It read as follows (see Volume 3, Chapter 25, paragraph 604, comment b, on page 293): -
85.The learned editors of Restatement of the Law then cited the example of police radio transmissions. Police officers were said to be fully entitled to publish potentially defamatory words (e.g. that certain persons were suspected to be dangerous criminals or fugitives of justice) to each other using public airwaves even though ordinary members of the public could also pick up those signals by tuning their radios. The mere fact that those ordinary members of the public could also hear or had also heard the words in question would not bring the publication outside of the privilege. The learned editors went on to explain the rationale as follows: -
86.I agreed with the holding of the Singaporean Court of Appeal in Chen Cheng. I also agreed with what was said in the American text of Restatement of the Law, as recited above. I held the same to be, and applied the same as, the law of Hong Kong as well. 87.All things considered, the method used by Mr and Mrs Kwok to publish the Words in our present case was a reasonable and permissible one on the facts of our present case. 88.For these additional or alternative reasons also, I was satisfied the publication of Mr and Mrs Kwok was not too wide. 89.Finally, Mr Chow drew my attention to two old English cases, being (1) Sadgrove v Hole [1901] 2 KB 1; and(2) Simpson v Downs (1867) 16 LT 391. I thank Mr Chow for so doing but I did not find either of these cases of assistance. 90.Sadgrove was about evidence of malice. Specifically, it was about whether the usage of a postcard instead of a sealed letter as a means of communication could by itself and without more be evidence of malice. The English Court of Appeal held, obiter, that it could be. That was of no application in our case, as malice had never been pleaded in our case and had in fact been explicitly abandoned by Mr Chow in his oral opening. 91.Simpson was about publication by way of newspapers. It was rare, in 19th century England, for publication by way of newspapers to be able to rely on “traditional” qualified privilege. That eventually led to the House of Lord’s decision in Reynolds v Times Newspaper Ltd [2001] 2 AC 127, which created a brand-new species of “extended” qualified privilege. That was of no application in our case either, as Mr and Mrs Kwok did not do anything which could be fairly described as resembling the publication of a newspaper, or a publication “to the world at large”. 92.For the above reasons, I derived no assistance from Sadgrove or Simpson. 93.Since the publication of the Words by Mr and Mrs Kwok was plainly on an occasion of “common interest qualified privilege” and it was not too wide either, the defence of qualified privilege also succeeded and Mr Yiu’s claim was dismissed for this alternative reason as well. Issue 3 – Consent 94.All parties agreed consent could be a complete defence to any claim of defamation. That was clear, by way of example, from what DHCJ Q Au-Yeung (as Au-Yeung J then was) had said in Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27th November 2012, paragraph 77), from what the learned editors of Gatley had said in paragraph 19.10 of their work, and from what Dr Matthew Collins QC had said in paragraph 18.01 of Collins on Defamation. 95.For the purpose of “the defence of consent” within the law of defamation, the consent can be explicit, implicit, implied or inferred by the conduct of the parties. 96.The English case of Carrie v Tolkien [2009] EMLR 9 neatly illustrated how the defence worked. There, the claimant operated a website with the address www.tolkienexaminer.blog.co.uk. It was a “blog” with a comments function. The defendant was said to have published a comment defamatory of the claimant on that blog. The claimant became aware of that comment but did not take any step to remove it for the next 22 months. Although there was never any explicit communication of consent between the parties, Eady J aptly observed the claimant’s suggestion that he suffered substantial “upset and distress” was plainly inconsistent with the objective fact of inaction on the part of the claimant, inferred that the claimant must have consented to and acquiesced in the publication of the comment, ruled that no properly directed jury would come to a different conclusion (see his paragraph 16), and summarily struck out the claimant’s case. 97.The defence of consent in our present case was even stronger than the one in Carrie v Tolkien [2009] EMLR 9. 98.The evidence was clear. Mr Yiu explicitly communicated his consent to the publication of the Words at the Shop to Mr and Mrs Kwok in an oral conversation with Mrs Kwok. When Mr Yiu discovered the publication of the Words by Mr and Mrs Kwok, he took no step to ask for their removal until 7 months later, whereupon the Words were promptly removed. The defence of consent was available to Mr and Mrs Kwok, and Mr Yiu’s claim was dismissed on this alternative ground also. 99.Mr Chow’s complaint in relation to this was two-fold. Firstly, Mr Chow said that there was no consent. Secondly, Mr Chow said even if there was consent, the consent should be construed narrowly and what Mr and Mrs Kwok did was beyond the consent given. I rejected both limbs of Mr Chow’s complaint. In order to explain my reasons for so doing, it is necessary for me to set out the relevant evidence, which I hereby do. 100.The evidence of Mr and Mrs Kwok on the oral consent went as follows [A/105, para 10] & [A/178, para 10]: -
101.Mr Chow’s first complaint about the passage above was that Mr and Mrs Kwok adopted the exact same passage as their evidence – even the punctuation was identical. This, suggested Mr Chow, meant I should not rely on it. I saw no merits in this argument. Each case must be decided on its own facts. In the case of Mr and Mrs Kwok, they had been married to each other for 30 years. I could tell by the way they gave their evidence, specifically by the way they spoke of each other, that their relationship with each other was harmonious and intimate. They were at all material times represented by the same lawyers. These being the background facts, it was not unusual for their witness statements to be drafted by the same lawyers and be similar. This was perfectly consistent with both of them having told this Court the truth. I accepted the passage above, adopted by both Mr and Mrs Kwok as their evidence, as entirely true. 102.More importantly, even if the evidence of Mr and Mrs Kwok on this issue could be said to be unsatisfactory (it could not), the evidence of Mr Yiu was worse. 103.As had been aptly pointed out by Mr Damian Wong, Counsel for Mr and Mrs Kwok, in his written closing, when Mr Yiu gave evidence on this issue, he had given two completely different and mutually exclusive versions of it, both of which unreliable. In his witness statement [A/51, para 17], Mr Yiu alleged Mrs Kwok met him inside the IO’s office in the Estate and asked him why he posted an order of the Small Claims Tribunal in the Estate (“質問為何要張貼該頒令書”), he understood Mrs Kwok and had a conversation with her but did not give her any consent to publish the Words (“the Written Version”). However, under cross-examination, Mr Yiu changed his evidence and alleged he never understood anything uttered by Mrs Kwok at all (“the Oral Version”). These 2 versions of event were mutually exclusive, and could not both be true. I rejected both versions of event put forward by Mr Yiu as false and fabricated by him. 104.Further, subsequent events had in any case showed that it was more probable that the version of events put forward by Mr and Mrs Kwok was entirely true. Mr Yiu had been asked about this, in this manner: -
105.So Mr Yiu accepted he became aware of the publication of the Words at the Shop by Mr and Mrs Kwok as early as on 29th December 2015 but did not ask for their removal until 25th July 2016. The explanation of Mr Yiu was that he did not know it amounted to libel until after he sought legal advice. I did not accept his explanation as true or credible. 106.Whilst Mr Yiu struck me as an evasive dishonest liar, he was plainly educated, and it showed. Mr Yiu might not have been aware of the precise definition of libel, or the rules in the law of libel, but he would be able to understand the meaning of the Words[A/51, para 20] [A/53, para 26] and come to a layman’s decision as to whether he should ask that the Words be removed. If Mr Yiu did not initially consent to the publication of the Words, judging from Mr Yiu’s general character as I had been able to observe, I would imagine he would be yelling at Mr and Mrs Kwok and asking them to remove the Words immediately after his discovery. Instead of doing so, Mr Yiu allowed the Words to stay where they were until 25th July 2016. In my judgment, that must be because Mr Yiu did orally consent to the publication of the Words in the manner as suggested by Mr and Mrs Kwok, and only changed his mind shortly before 25th July 2016. I held that to be what happened. 107.As to Mr Chow’s suggestion that what Mr and Mrs Kwok did was beyond the consent given, it had no merits either. 108.Mr Chow’s point, raised in paragraph 73 of his written closing, was to the effect that Mr Yiu had at most consented to publication of the Words in such a way so that the public could not read the Words. I rejected this argument. It was Mr Yiu’s own oral evidence under cross-examination that he lived in the Estate himself and knew literally all owners in the Estate. Mr Yiu clearly knew the Shop was open to customers of the Business, who could be non-owners. When Mr Yiu said “貼回自己的店舖內” to Mr and Mrs Kwok, he must have known members of the public would still be able to read the Words, even if the Words faced the inside of the Shop, because customers of the Business would walk into the Shop. Mr and Mrs Kwok did post the Words inside the Shop, it was just that the front of the Shop was made of glass and was transparent. In my judgment, what Mr and Mrs Kwok did was well within the consent given by Mr Yiu. 109.Mr Chow drew my attention to the old English case of Cook v Ward (1830) 6 Bing 109, where Tindal CJ and Park J of the English Court of Appeal held that even though the claimant in that case must, by telling a ludicrous story of himself to his own friends, be taken to have consented to that specific publication, that did not justify a 3rd person publishing the same story “all over the country”. 110.I thank Mr Chow for drawing Cook v Ward to my attention, but with respect I was not assisted by it. Mr and Mrs Kwok did not publish the Words “all over the country”, or even just “all over Hong Kong”. Mr and Mrs Kwok only posted the Words at the Shop, exactly as consented to by Mr Yiu. That was very far removed from Cook v Ward. 111.Finally, towards the end of Mr Chow’s cross-examination of Mr Kwok, Mr Chow sought to establish that Mr Kwok received the demand letter dated 25th July 2016 from Mr Yiu’s solicitors Jackson Ho & Co [A/89] (“the Demand Letter”) but did not promptly remove the Words thereafter. This argument had no merits whatsoever. 112.The Demand Letter was written in legal English. It described the Words as “calumniations and vilifications”. I asked Mr Kwok about his background. He said he was educated in Mainland China, up to primary school level. He came to Hong Kong in around 1987. As far as the English language was concerned, he only knew the individual alphabets. He could not read the Demand Letter because it was in English. I believed him. It would be wholly unrealistic for any person to expect Mr Kwok to be able to understand the phrase “calumniations and vilifications”, or such similar legal English phrases, in the Demand Letter. Mr Kwok said, and I accepted as true, he removed the Words in August 2016 after he consulted a lawyer. On the facts of this case, since Mr Yiu curiously chose to issue the Demand Letter to Mr Kwok in a language which Mr Kwok did not understand, it was reasonable for Mr Kwok to only remove the Words after he understood the demand. In fact, Mr Yiu could have just walked into the Shop himself and orally asked Mr and Mrs Kwok to remove the Words, but he never did. He did not issue any Chinese demand letter to Mr and Mrs Kwok either. I agreed that for the purposes of the defence of consent, a consent previously given could be withdrawn by notice, but the withdrawal must be effectively communicated before it could be considered effective. On the facts of this case, that only occurred after Mr Kwok took advice on the Demand Letter which he could not read without assistance. In such circumstances, Mr Yiu plainly could not complain about the timing of the removal of the Words. Quantum 113.Having considered the cases on quantum cited by the parties, including Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27th November 2012, DHCJ Au-Yeung) and 梁偉訴倫國祥 (HCA 2657/2002, 11th September 2003, DHCJ Cheung), even if I were wrong on the issue of liability, I would only have awarded general damages in the sum of HKD 80,000 to Mr Yiu. Whilst the Pleaded Meanings were plainly serious, the number of people who had read the Words was bound to be small, and the defence of justification was also reasonably raised so that even if it failed, this would not be a case where an award of aggravated damages would be necessary, reasonable or proper. Mr Chow sensibly abandoned the pleaded claim for exemplary damages, there being no evidential basis for the same. 114.The above was, of course, obiter, given that I ruled against Mr Yiu on liability, and the issue of quantum did not in fact arise. Costs 115.Mr Chow sensibly conceded that costs should follow the event, and I ordered Mr Yiu to pay costs to Mr and Mrs Kwok accordingly. 116.As Yuen JA of the Court of Appeal aptly observed in Chang Wa Shan v Esther Chan Pui Kwan [2017] 5 HKLRD 57 at 65 (paragraph 15.3), the law of defamation is “technical and complex”. It was reasonable, proper and plainly necessary for Mr and Mrs Kwok to engage Counsel to defend this action, especially since the issue of consent arose on the facts. I granted Certificate for Counsel to Mr and Mrs Kwok accordingly. Final Remarks 117.In my judgment, Mr Yiu was never entitled to any relief, and this action should never have been commenced by Mr Yiu. 118.I shall leave it to Mr and Mrs Kwok to decide for themselves whether they would like to provide copies of my Reasons for Judgment to the police. Application for leave would not be required, as these Reasons for Judgment are public. Mr and Mrs Kwok’s complaints to the police in relation to suspected criminal activities on the part of Mr Yiu would appear to be protected by absolute privilege: Westcott v Westcott [2009] QB 407 at 423 paragraph 36 (per Ward LJ) and 424 paragraphs 41-43 (per Stanley Burnton LJ). 119.I thank Counsel for their most able assistance.
Mr Enzo Chow, instructed by Jackson Ho & Co, for the Plaintiff Mr Damian Wong, instructed by Johnnie Yam, Jacky Lee & Co, for the Defendants | ||||||||||||||||||||||||||||||||||||||||||||||||||||
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