Chan Ching Wah v. Chan Yeung Sun
Read the full judgment text of DCCJ 2028/2016 on BabelCite. This District Court judgment was delivered on 21 December 2018.
1. This is an action for libel.
Cites 13 cases
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DCCJ 2028/2016 [2018] HKDC 1585 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2028 OF 2016 -------------------------
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--------------------- JUDGMENT ---------------------- 1.This is an action for libel. 2.The allegedly defamatory statements were published by the defendant via an email dated 25 December 2015. INTRODUCTION 3.Before 11 December 2015, the plaintiff and the defendant were members of the management committee of the Incorporated Owners of Beacon Heights (“the IO”). 4.An annual general meeting of the IO took place on 11 December 2015 (“the AGM”). Members for the new management committee were to be elected during the AGM. 5.Both the plaintiff and the defendant stood for re-election. 6.Voting by proxies was allowed at the AGM. The procedure and mechanism of the subject proxy arrangement can be summarised as follows:-
7.According to the plaintiff, before the AGM began, he went to the counter to collect his proxy forms, but found that all of them were missing. 8.Upon the plaintiff’s enquiry, staff members of UPML informed him that his proxy forms were collected by the defendant, who had signed the corresponding Covering Form to acknowledge receipt. It is not disputed that the defendant did sign the Covering Form (“the Mistake”). 9.According to the defendant, he was given a pile of proxy forms by an officer of UPML who asked him to sign to acknowledge receipt. The defendant did so without checking. 10.It is also not disputed that the Mistake was discovered and rectified by UPML before the AGM began. 11.However, in the course of the AGM, just before the voting procedure was about to begin, the plaintiff raised this issue concerning the Mistake in front of all the owners in attendance. The relevant part of the AGM was taped and transcribed (“the Transcript”). 12.Neither the plaintiff nor the defendant was re-elected as a member of the IO. 13.On 23 December 2015, UPML apologised to the defendant in a formal letter, admitting that an officer of UPML had given the plaintiff’s proxy forms to the defendant by mistake (“UPML’s Letter”). 14.On 25 December 2015, the defendant issued an email (“the Email”) to 9 people, including the plaintiff, the manager of the UPML and the current members of the management committee (as they then were). The Email was not marked “Private and Confidential”. 15.The Email is in Chinese, and is reproduced in full as follows:-
16.The English translation that has been agreed to by the Parties is as follows:-
17.The underlined words are the allegedly defamatory statements (“the Relevant Words”). 18.On 28 December 2015, at the IO’s management committee meeting, which the defendant attended as a visitor, hard copies of the Email were further distributed to an additional 5 members of the management committee. 19.The 9 persons mentioned in paragraph 14 hereinabove and the 5 persons mentioned in paragraph 18 hereinabove (14 persons in total) are collectively referred to as “the Recipients”. THE ISSUES 20.The defendant does not dispute that he published the Relevant Words. The plaintiff' has also, sensibly, abandoned the claim for malicious falsehood and an injunction. 21.After the parties made their closing submissions, it became clear that the main issues in the present case are as follows:-
THE MEANING OF THE WORDS 22.Words are defamatory when they cause harm to one’s reputation. Three formulae have been particularly influential: (1) would the imputation tend to “lower the plaintiff in the estimation of right-thinking members of society generally?”; (2) would the imputation tend to cause others to shun or avoid the claimant?; and (3) would the words tend to expose the claimant to “hatred, contempt or ridicule”? (Richard Parkes, QC and others, Gatley on Libel and Slander (12th edn, Sweet & Maxwell 2017), paragraph 1.7). 23.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. In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd(2012) 15 HKCFAR 299, Ribeiro PJ explained at paragraphs 48-50 that:-
24.It is also trite that (1) the context and circumstances of the Relevant Words in the Email must be taken into consideration, and the Email has to be read as a whole in order to ascertain the meaning of the Relevant Words (sometimes referred to as the “whole article rule” - see Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 70, D to H and Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at paragraph 42(viii)), and (2) courts would “reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation” (sometimes referred to as the “no strained meaning rule” – see Jones v Skelton [1963] 1 WLR 1362 and Multi-Winner (Supra) at paragraph 42(vii)). 25.I find that the meaning of the Relevant Words is relatively plain. Indeed, there is no material difference between the pleaded meaning of the Relevant Words by the parties, and it is plainly reasonable for the plaintiff to abandon the reliance on innuendo.[2] Subject to one issue on the meaning of the phrase “Mr Chan Ching Wah and Madam Yu Ching Chee (“Madam Yu”)” (see below), the meaning of the Relevant Words is not ambiguous at all and it is unhelpful to attempt to paraphrase the same. 26.By using the Relevant Words, the defendant accused the plaintiff of relying on the Mistake to make unreasonable accusations against him, to the extent that the plaintiff appears to have done so with an ulterior motive. The Relevant Words are therefore plainly defamatory. Mr Lam (who appears for the defendant) does not seriously dispute this. 27.Thus, the real issue is whether the defendant has a defence. QUALIFIED PRIVILEGE 28.The defendant’s primary case is that the Relevant Words are subject to the reply-to-attack qualified privilege. 29.The relevant principles are summarised in the recent case of Multi-Winner (supra) by Lok J:-
30.As regards the issue of whether a communication was published maliciously, the Court of Final Appeal has given useful guidelines in the recent case of Lu, Lu & Lu v Chan & Hui [2018] 3 HKC 136 at 144-H to 148-I & [2018] HKCFA 11 (at paragraph 17 and 18):-
31.Where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose: normally, that is the only inference which can reasonably be drawn. “Recklessness”, in this context, is to be understood in the sense described by Lord Diplock in Horrocks v Lowe: that is to say, “without considering or caring whether it be true or not” (Lu, Lu & Lu v Chan & Hui (Supra) at paragraph 22). 32.Recklessness means indifference to the truth or falsity of the allegation: it does not have to amount to wilful blindness, or to be accompanied by some other state of mind, in order to support a finding of malice (Lu, Lu & Lu v Chan & Hui (Supra) at paragraph 53). 33.Mr Ng contends, inter alia, that:-
34.I will consider these issues in turn. (1) Whether the plaintiff attacked the defendant’s character or conduct 35.The defendant’s case is that the plaintiff did attack the defendant’s character and conduct during the AGM. As stated above, thankfully, the relevant part of the AGM is fully recorded in the Transcripts. 36.The most critical issues[3] between the parties are as follows:-
37.I have listened to the audio recording of the Transcript and considered the oral evidence of the plaintiff and the defendant. I have also taken into account the very detailed analysis by Mr Ng and Mr Lam in respect of the meaning of the words used by the various people during the AGM. 38.In respect of the first issue, I have no doubt that the plaintiff did attack the defendant’s conduct. This is apparent from the following statements made by the plaintiff during the AGM:-
39.It is to be noted that:-
40.For the above reasons, I also reject the plaintiff’s case (and the plaintiff’s evidence) that by saying “當 “Conduct” 問題”, he “simply wanted to have a discussion with regard to the fact that the [d]efendant wrongly signed his proxy form but failed to give an explanation or apologise to the Plaintiff in the AGM.”[5] This suggestion is clearly an afterthought. 41.In fact, the plaintiff never approached the defendant during the entire AGM for any discussion of this matter. On the contrary, he waited until right before the commencement of the voting procedure to make the accusation. It is reasonable to infer that the plaintiff intended to attack the defendant’s reputation by making use of the Mistake at the opportune moment.[6] 42.The second issue arises[7] because the plaintiff did not himself use the word “integrity”. This word was used by Madam Yu in respond to the plaintiff’s said accusation of the defendant’s “conduct” problem.
43.In the context of the Transcript, I find that the plaintiff has plainly endorsed Madam Yu’s comments. I note that the plaintiff continued to, inter alia, question the defendant’s reason for making the Mistake after Madam Yu’s comments. In particular, right after the plaintiff said that this matter had nothing to do with “integrity”, the plaintiff followed up with the comment that “你睇證據！我個名嚟架唔係你個名吖嘛 … 你仲喺度咁大聲！”. Even if the plaintiff did subjectively believe that he was not endorsing Madam Yu’s comments (which I do not believe to be the case)[8], there is no doubt that he gave those who had attended the AGM (including the defendant) such an impression. 44.Thus, I find that the plaintiff did attack the defendant’s character and conduct, and the reply-to-attack qualified privilege is engaged when the defendant issued the Email and published the Relevant Words in reply to the plaintiff’s attack. (2) Whether the Relevant Words are fairly relevant to the accusations made against the plaintiff 45.The gist of the Relevant Words is as follows:-
46.I find that the Relevant Words were fairly relevant to the plaintiff’s accusations. In coming to this conclusion, I take into account, inter alia, the following matters. 47.I find that the Mistake was mainly caused by UPML. As stated above, UPML had admitted this in the UPML’s Letter. 48.I also find that the defendant was merely careless when he signed the Covering Form. This is a sensible conclusion – it would be too stupid a scheme for the defendant to deliberately take the proxy forms of the plaintiff in the hope that this would not be discovered. I do not find that the defendant’s conduct of not carefully checking the Covering Forms to be “reckless” or otherwise culpable – it was reasonable for the defendant to have trusted the staff members of UPML. 49.The correctness and relevance of the Relevant Words have to be considered with regard to these matters. 50.As to Statement (1), it is apparent from my conclusion above that I find that (i) both the plaintiff and Madam Yu tried to make use of the Mistake to attack the defendant, (ii) the accusations about the defendant’s conduct or integrity were unjustified, considering, inter alia, the fact that the defendant had only made an innocent mistake, and (iii) they did deliberately exaggerate the impact or magnitude of the Mistake. This is particularly in view of the timing of when the plaintiff raised the accusation, the wording and tone of the accusations made by both the plaintiff and Madam Yu, and the fact that the Mistake was rectified before the AGM. 51.Mr Ng contends that it was incorrect for the defendant to suggest that both the plaintiff and Madam Yu “defamed [the defendant’s] conduct and integrity”, as the plaintiff did not conspire with Madam Yu or otherwise endorse her comments. 52.As stated above, I found that the plaintiff did endorse Madam Yu’s comments. But in any event, I am of the view that, in the circumstances of the present case, the allegation that the defendant has a “conduct” problem is not materially different from the allegation that the defendant was without integrity – both the plaintiff and Madam Yu were suggesting that the defendant’s conduct was unreasonable or questionable, beyond mere carelessness. Further, one should not lose sight of the fact that it was the plaintiff who raised the issue of the defendant’s “conduct” problem, with Madam Yu echoing and amplifying the plaintiff’s accusation. It was therefore reasonable for the defendant to deal with their accusations together in the Email. This is well within the “considerable degree of latitude” referred to in Gatley (Supra). 53.As to Statement (2), as stated above, it was correct for the defendant to say that he did try to explain his position from time to time during the AGM, but the plaintiff and Madam Yu chose to continue to attack him irrespective of his explanation. 54.As to Statement (3), I find that (i) taking into account all the circumstances, the plaintiff and Madam Yu did make the accusations with an ulterior motive, namely, to bad-mouth the defendant before the commencement of the voting procedure and to reduce his chance of being re-elected. This was the reason why they chose to exaggerate and amplify the effect of the Mistake during the AGM; and (ii) in any event, the defendant truly believed, and it was reasonable for him to have formed such a belief, that the plaintiff and Madam Yu made the accusations with an ulterior motive. It was not surprising that the defendant thus felt angry, helpless and disappointed about their behaviour. The fact that the defendant harboured such strong feelings was clearly shown in the Transcript. 55.As to Statement (4), as stated above, I found that the accusations were indeed unreasonable. 56.In view of the above, I am of the view that the gist of the Relevant Words correctly reflected what had happened during the AGM, and the matters stated in the Email, including the Relevant Words, were fairly relevant and responsive to the plaintiff’s attack of the defendant’s character and conduct. 57.It is apparent from the Transcript that the defendant indeed had a humiliating experience during the AGM. It was also plain that the defendant did not (and could not) completely vindicate himself during the AGM, as, inter alia, that the plaintiff and Madam Yu (and potentially others who heard their accusations) were not receptive of the defendant’s explanation on the spot, and the staff members of UPML did not come forward to speak for him. It was therefore natural for him to have a strong desire to clear his name. 58.It was suggested that it might be sufficient for the defendant to clear his name just by sending the UPML’s Letter to the Recipients. 59.While with (considerable) hindsight, it might have been more prudent for the defendant to refrain from using the Relevant Words, he was entitled to use them as a matter of law, as he should be afforded “a considerable degree of latitude” in protecting his name, and is not restricted to doing the “bare minimum”. Indeed, it was not unreasonable for the defendant to explain in a covering email why the UPML’s Letter was sent to the Recipients. (3) Whether the defendant published the Relevant Words with malice 60.The plaintiff’s main allegation is essentially that malice can be inferred by the fact that (1) the Relevant Words were false and unfounded, and the defendant knew or ought to have known this, and (2) the Email, which was not marked “private and confidential”, was sent to the members of the IO and UPML. [9] 61.Since I have found that the gist of the Relevant Words did correctly reflect what had happened during the AGM, the plaintiff’s main case falls away. It goes without saying that I also find that the defendant did not know, and ought not to have known, that the Relevant Words were false. 62.I do not understand why I can infer malice by the identity of the Recipients – in order to clear his name, the defendant would have to send the Email to the relevant people, ie the residents of Beacon Heights. Indeed, the fact that the Email was only sent to a small number of people tends to suggest that the defendant was acting reasonably and with restraint. 63.In any event, I find that the dominant purpose of the defendant’s publication of the Relevant Words was to clarify the misunderstanding caused by the attack by the plaintiff and Madam Yu during the AGM and to clear his name. I accept that the defendant indeed felt humiliated and aggrieved by the whole saga, and was concerned to clear his name once he obtained proof from UPML that the Mistake was not caused by him. The defendant was unshaken by the able cross-examination of Mr Ng on matters concerning the issue of malice, and I have no reason to doubt the defendant’s evidence on this matter at all. 64.It should be noted that it is not the plaintiff’s pleaded case that there were any previous grudges or bad blood between the plaintiff and the defendant. It is common ground that the plaintiff had little interaction (“冇兩句”) with the defendant before the AGM. 65.I accept the defendant’s evidence that he had no motive to injure the plaintiff’s reputation or image. Throughout the cross-examination by Mr Ng, I can see no convincing suggestion as to why the defendant would have any motive to injure the plaintiff.[10] 66.During the trial, Mr Ng raised a new point, namely, that there was animosity between the defendant and Madam Yu as they always had arguments at the meetings of the management committee. It is impermissible to raise this unpleaded case belatedly. But in any event, the defendant explained that there was no such animosity between him and Madam Yu, and no cogent evidence was adduced to rebut to his evidence on this issue. 67.By reason of the aforesaid, the defendant has made out the defence of qualified privilege. 68.I therefore conclude that:-
69.It is therefore unnecessary to address the issues of justification and damages. However, for the sake of completeness, I will deal with them briefly below. JUSTIFICATION 70.In establishing a defence of justification, only the substantial truth of the imputation needs to be proven by the defendants. In other words, the defendants have to prove that “the main charge, or gist of the libel” is true. A defence of justification would still succeed even if the publication is inaccurate in some minor respects provided that it is not one of material inaccuracy. Slight inaccuracy therefore would not defeat the defendants’ reliance on the defence of truth (United Muslim Association of Hong Kong & Others v Yusuf Yu & Others (unreported, HCA 640/2012, 14 May 2015, paragraph 106 & 107)). 71.Since I have concluded that the gist of the Relevant Words was correct,[11] it follows that the defence of justification is established.[12] QUANTUM OF DAMAGES 72.The purposes and objectives for awarding damages for defamation are trite. For present purposes I rely on the summary given by the Court of Final Appeal in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others (2012) 15 HKCFAR 299.
73.Mr Ng cited various cases in support of the plaintiff’s case on quantum, including, Charles Sin Cho Chiu v Tin Tin Publication Development Ltd (unreported, HCA 6662/1997, 11 January 2002), Oriental Press Group Ltd v Fevaworks Solutions Ltd [2012] 1 HKLRD 848, Lo Sam Shing v Li Fong (unreported, HCA 1803/2011, 12 March 2014), Yiu Shing Yin v Kwok Yik Ho & Another(unreported, DCCJ 4437/2016, 28 March 2018), 梁偉對倫國祥 (unreported, HCA 2657/2002, 11 September 2003), Kwan Siu Wa, Becky v Marla Susilo (unreported, DCCJ 5396/2007, 17 May 2011) and 東廬大樓業主立案法團 對 徐偉業 (unreported, DCCJ 3333/2011, 4 August 2014). 74.But these cases are not apposite. 75.The allegedly defamatory statements in these cases concern serious allegations of misconduct which are criminal, or at least highly dishonourable, in nature. Since the most important factor when assessing damages is the gravity of the libel, it is not surprising that relatively large awards were made in those cases. 76.On the other hand, the allegations contained in the Relevant Words are on any view minor. Putting the allegations at the highest, it only meant that the plaintiff wrongfully took advantage of the defendant’s mistake and made a mountain out of a molehill. The impact on the plaintiff’s reputation is minimal at best. 77.In this regard, I reject the plaintiff’s evidence that he suffered any pecuniary loss as a result of the publication of the Relevant Words. Such alleged loss has not been particularised in the plaintiff’s pleaded case and his witness statement. During cross-examination, he alleged that he had work partners who lived in the same estate, and negotiations between them gradually stopped, probably because those partners started to doubt the plaintiff’s credibility. I give no weight to this vague and highly speculative evidence. In any event, it is most unlikely that he would suffer any pecuniary loss simply by reason of the publication of the Email. 78.It should also be noted that the plaintiff was not re-elected as the IO member even before the Email was published. 79.I agree with Mr Lam that the authorities referred to in paragraphs 47 to 54 of Choi Yuet Wing v Tang Sai Cheong [2014] 5 HKLRD 260 are more applicable to the present case. This is also plainly not an appropriate case to award aggravated or exemplary damages. 80.Having carefully considered all the circumstances in accordance with the guidance given in the authorities, in particular, the fact that (1) the allegations were not serious, (2) the impact or damage to the plaintiff was minimal, (3) the Email was only sent to a small number of people, and (4) to date, the defendant has not apologised, if I were wrong on the issue of liability, I would award HKD$10,000 to the plaintiff. ORDER 81.By reasons of the foregoing, I dismiss the plaintiff’s case. 82.I make an order nisi that the plaintiff do pay the defendant the costs of this action, to be taxed if not agreed. Having considered the complexity of the issues involved, I also grant certificate for one counsel. This costs order nisi will become absolute unless an application to vary the same is made within 14 days from the date hereof. 83.Last but not least, I would like to thank Mr Ng and Mr Lam for their able assistance.
Mr Ng Man Kin of Kwok, Ng & Chan for the plaintiff Mr Kenneth K Y Lam and Mr Anson Tso, instructed by Lui & Law, for the defendant [1] The plaintiff’s counsel has confirmed that the plaintiff will not rely on “innuendo” [2] See paragraph 4 of the Statement of Claim and paragraph 4 of the Defence [3] For avoidance of doubt, I have considered all the issues raised by the parties in their respective submissions. The fact that I have not specifically dealt with them does not mean that I have not taken them into account. [4] In fact, the plaintiff’s evidence is that he believed the defendant deliberately or “arbitrarily” signed the Covering Letter. This is consistent with the plain meaning of the words that the plaintiff used. [5] The plaintiff’s closing submissions at paragraph 40 [6] I also observe that the plaintiff has consistently taken a high-handed approach when handling this matter: shortly after he had knowledge of the publication of the Email (dated 25 December 2016), he sent a legal letter to the defendant without any prior private communication. [7] Given my finding above in respect of the meaning of the phrase “conduct” problem, it is techically not necessary to resolve this issue for the purpose of determining whether the plaintiff did attack the defendant’s character or conduct. Yet, as will be made plain below, this factual dispute is also relevant to the resolution of other issues. [8] Mr Ng suggested that the various matters had not been put to the plaintiff by Mr Lam. But the subjective intent of the plaintiff is largely immaterial to the issues in the present case, and I came to the conclusion relying on the objective evidence before this court (except on issues such as malice for which the court necessarily has to consider the evidence of the defendant). [9] See generally the Statement of Claim paragraph 7(n)-(s) and the Reply, paragraphs 6 and 7 [10] eg having lost the election, the defendant “lost face” and tried to shift the blame to the plaintiff [11] See in particular paragraphs 45 to 58 above [12] The plaintiff did not seek to argue that the Relevant Words were statements of opinion which concerned value judgments that could not be said to be true or false. See Cruddas v Calvert & Ors [2013] EWHC 2298 (QB) at §56. In any event, I agree that the Relevant Words were indeed statements of fact (which I have found to be true). | ||||||||||||||||||||||
Cases cited in this judgment