Tam Heung Man v. The Incorporated Owners of Lung Poon Court (Blocks A-f)
Read the full judgment text of DCCJ 4380/2014 on BabelCite. This District Court judgment was delivered on 26 March 2019.
1. This is a libel claim brought by Tam Heung Man (“Ms Tam” or “the plaintiff”) against the Incorporated Owners of Lung Poon Court (Blocks A-F) (the “IO” or “the defendant”) in respect of two notices published on 16 June 2014 (“the 1 st Notice”) and 18 July 2014 (“the 2 nd Notice”; collectively, “the Notices”) respectively. For easy reference, this judgment is divided into the following parts:
Cited by 7 cases · Cites 19 cases
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DCCJ 4380/2014 [2019] HKDC 401 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4380 OF 2014 -------------------------
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----------------------- JUDGMENT ---------------------- 1.This is a libel claim brought by Tam Heung Man (“Ms Tam” or “the plaintiff”) against the Incorporated Owners of Lung Poon Court (Blocks A-F) (the “IO” or “the defendant”) in respect of two notices published on 16 June 2014 (“the 1st Notice”) and 18 July 2014 (“the 2nd Notice”; collectively, “the Notices”) respectively. For easy reference, this judgment is divided into the following parts:
I. BACKGROUND A. The parties 2.Ms Tam served as a District Councillor in the Lung Sing Constituency of Wong Tai Sin District between 2003 and 2007, and from 1 January 2012 onwards. Ms Tam previously served as a Legislative Councillor representing the accountancy functional constituency in the Legislative Council in the Hong Kong Special Administrative Region between 2004 and 2008. 3.Lung Poon Court (龍蟠苑) is a Home Ownership Scheme estate in Wong Tai Sin District, Kowloon, Hong Kong developed by the Hong Kong Housing Authority (“the HA”). It consists of 7 blocks of residential flats. The IO was incorporated on 22 June 2001. It is and was at all material times responsible for the overall management decisions of Lung Poon Court, Blocks A to F (“the Estate”). The IO engaged Hong Yip Service Company, Ltd (“Hong Yip”), a subsidiary of Sun Hung Kai Properties Ltd (“Sun Hung Kai”), to manage the Estate. The IO’s powers and duties are and were at all material times exercised and performed by a management committee (“the MC”). Lung Poon Court Commercial Centre (“the Commercial Centre”), which is situated within the Estate, is a commercial centre comprising a car park and retail areas. The Commercial Centre is owned by the HA, who engaged Pioneer Management Ltd (“Pioneer”) to manage it. Vehicular access to the Commercial Centre and the Estate is from Lung Poon Street, and the gate guarding vehicular access to the Shopping Centre and the Estate is under the management and control of Pioneer, whilst the driveways within the Estate are under the management and control of Hong Yip. 4.Cheung Ka Yau (“張家友”) (“Mr Cheung”) has been the Chairman of the MC since 2013. He was the Chairman of the MC when the IO issued the Notices. He has been a member of the MC since 2003. B. The 1st Notice and the 2nd Notice 5.On 30 May 2014, Ms Tam published the “Lung Poon Court (Blocks A-F) District Councillor Working Report 2013” (“龍蟠苑(A-F座)議員工作報告2013”) (“the Working Report”). The Working Report, as its name suggested, contained 6 issues relating to the work done by Ms Tam as a District Councillor concerning the Estate. Shortly thereafter, on 16 June 2014, the IO published the 1st Notice. Still later, on 18 July 2014, the IO published the 2nd Notice. 6.With respect to the 1st Notice, the words complained of by Ms Tam in the Amended Statement of Claim (“the SOC”) (“the 1st Words”) were contained in the heading, the opening paragraph, the 1st, 2nd, 3rd, 5th, 6th paragraphs and the concluding paragraph thereof. The words contained in the 1st, 2nd, 3rd, 5th and 6th paragraphs were respectively called Points 1, 2, 3, 5 and 6 in the SOC[1]. They related broadly to the following issues and were under the following sub-headings[2] in the 1st Notice:
7.With respect to the 2nd Notice, the words complained of by Ms Tam in the SOC were contained in the heading, the 1st, 3rd and 4th paragraphs thereof (“the 2nd Words” which, together with the 1st Words, are collectively referred to as “the Words”). 8.In this judgment, for ease of reference, I shall adopt the same terminology as used in the SOC. 9.The 1st Words and the 2nd Words are set out below:
10.The SOC contains a translation of the Words, which are not seriously disputed by Ms Wong, counsel for the IO. They are set out below.
C. The parties’ pleaded case 11.The plaintiff claimed that the Words were defamatory of her and commenced the present action on 6 November 2014. 12.In the SOC, the plaintiff pleaded that the Words referred and were understood to refer to her. She pleaded in paras.6 and 10 of the SOC the various meanings which the 1st Words and the 2nd Words in their natural and ordinary meanings meant and were understood to mean[3]. 13.The plaintiff pleaded that by reason of the defendant’s publication of the Words, her reputation as the District Councillor of the Lung Sing Constituency of Wong Tai Sin District has been severely damaged, her personal and professional reputation has been gravely injured, she has been exposed to public hatred, contempt and ridicule and she has suffered considerable distress and embarrassment. 14.The defendant raised a number of defences in the Amended Defence (“the Defence”)[4]. 15.First, the defendant made no admission of the natural and ordinary meanings of the 1st Words and 2nd Words as contended in paras.6 and 10 of the SOC. 16.Second, the defendant denied that the 1st Words and the 2nd Words were defamatory. 17.Third, the defendant raised the defences of justification, qualified privilege and fair comment on a matter of public interest. 18.In reply to the defence of qualified privilege, the plaintiff pleaded malice. She pleaded, inter alia, that the defendant published the Words maliciously, without honestly believing in the truth thereof or recklessly not caring whether they were true or false out of spite or ill will or animosity against the plaintiff and with intent to injure the plaintiff or arouse controversy towards the plaintiff, and that the defendant published the Words with the ulterior motive of damaging the plaintiff’s political goodwill and/or with intend to injure the plaintiff’s forthcoming election for the District Council due to take place in late-2015. II. CENTRAL ISSUES ON LIABILITY 19.The central issues on liability arising from the pleadings are:
20.I now proceed to deal with these issues in turn. In respect of the defences raised by the defendant, I shall deal with them in the following order: justification, qualified privilege and fair comment on a matter of public interest. III. ISSUE (1) – MEANINGS OF THE 1ST WORDS AND THE 2ND WORDS 21.The plaintiff pleaded that the 1st Words bore and were understood to bear the following natural and ordinary meanings[5]:
22.The plaintiff pleaded that the 2nd Words bore and were understood to bear the following natural and ordinary meanings:
23.Natural and ordinary meaning is the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them. The question is what would the words convey to the mind of the ordinary, reasonable, fair-minded reader? See: Gatley on Libel & Slander, 12th ed., para.3.17. The principles for determining the natural and ordinary meanings of alleged defamatory words have been helpfully set out in a recent judgment of David Lok J in Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at para.42 as follows:
24.Applying these principles, I find that the 1st Words bore and were understood to bear the natural and ordinary meanings set out in para.21(1) to (12) above, save and except that the words “Wong Tai Sin District” in para.21(1) above should be replaced with the word “Estate”, because the 1st Words did not refer to Wong Tai Sin District but referred only to the Estate. I also find that the 2nd Words bore and were understood to bear the natural and ordinary meanings set out in para.22(1) to (8) above, save and except that the words “Wong Tai Sin District” in para.22(1) above should be replaced with the word “Estate” for the same reason given above. In her closing, Ms Wong did not seriously dispute that the 1st Words bore and were understood to bear the natural and ordinary meanings set out in para.21(1) to (12) above (as modified herein) and that the 2nd Words bore and were understood to bear the natural and ordinary meanings set out in para.22(1) to (8) above (as modified herein). IV. ISSUE II: WHETHER THE 1ST WORDS AND THE 2ND WORDS WERE DEFAMATORY 25.The matters published are defamatory if they expose the claimant to contempt and ridicule by others and cause others to shun him. The matters would also be defamatory if they lower the claimant’s estimation in the eyes of right-thinking members of society and adversely affect his reputation: Multi-Winner, at para.43 per David Lok J; Lee Ching v Lau May Ming [2007] 3 HKLRD 623, at para.48 per Poon J (as he then was). 26.I have no doubt that the Words were defamatory of Ms Tam. By the Words, the IO alleged, inter alia, that Ms Tam misled the public, was motivated by selfish desire, made false accusations against the IO and destroyed the harmony of the Estate. On the whole, the Words involved serious attacks on Ms Tam’s integrity, honesty and propriety. It has been held that it is defamatory to publish of a person that he is dishonest or to impute “any dishonourable conduct to another though not involving a breach of positive law”: Gatley, para.2.28. 27.I reject Ms Wong’s submission that the Words would not lower Ms Tam in the estimation of right-thinking members of society[6]. The Words speak for themselves. With respect, Ms Wong’s reliance on McLaughlan v Orr Pollock & Co (1894) 22 R. 38 (where Lord McLaren said at pp.42-43 that there is “the utmost freedom in the discussion of the conduct and motives of those who take part in its public business, whether in the higher plane of statesmanship or in the conduct of local affairs. In such criticism, ridicule is just as legitimate as any other rhetorical artifice. If … this should take the form of rough language and unmannerly jests, the person aggrieved must put up with it”) is misplaced because, as pointed out in Gatley at §2.42, even those jurisdictions which give greater protection to “political speech” than does English law do not deny that the law of defamation is applicable to statements about politicians, and an accusation of corruption or “hypocrisy”, whether or not that imputes dishonesty, against a politician is as much as the same accusation against a civil servant. In any event, Lord McLaren also said in McLaughlan (at p.43) that injury to reputation is protected by the law of defamation “where private character is attacked, or when the criticism of public conduct is combined with the suggestion of base or indirect motives”, and this applies to the facts of the present case. V. ISSUE 3(a): IS THE DEFENCE OF JUSTIFICATION MADE OUT? A. Applicable legal principles 28.It is trite that a defendant who relies on justification has to identify the defamatory meanings which he is prepared to justify: Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd [1996] 4 HKC 519, at 532I-533A per Le Pichon J (as she then was). This is generally known as the pleading of Lucas-Box meanings, which derives its name from the English Court of Appeal decision in Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147. As Ribeiro PJ pointed out in Mak Shiu Tong v Yue Kwok Ying & Anor (2004) 7 HKLFAR 228, at para.22, ever since the Lucas-Box decision, the defendant’s pleadings “must make clear what meaning he is seeking to justify.” B. The present case 29.In the present case, para.12 of the Defence simply pleaded that the Words are “true in substance and in fact” without identifying what meanings the defendant is seeking to justify. The absence of any pleaded meaning sought to be justified by the defendant is fatal to the plea of justification and the only course available to the court is to reject it, which I hereby do. 30.In my view, it is not open to the defendant to contend that the meanings sought to be justified by it are pleaded in para.11(k) of the Defence, because according to para.12 of the Defence the matters pleaded in para.11(k) are particulars of justification and are not concerned with meaning. In any event, even if the defendant were allowed to make that contention, by reason of the matters stated in Section VII below, the justification defence also fails. VI. ISSUE 3(b): IS THE DEFENCE OF QUALIFIED PRIVILEGE MADE OUT? A. Applicable legal principles 31.At common law, privileged occasions are broadly classified into two categories: first, where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it; or secondly, where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient: Gatley, at para.14.9. 32.The authorities show that there is a common interest among the owners of a building with regard to matters relating to the affairs of the building: Multi-Winner, at para.69 per David Lok J. B. The present case 33.In the present case, the Notices related to the affairs of the Estate and were published by the IO to all the owners of the Estate. I find that the Notices were protected by common interest privilege and were published on occasions of qualified privilege. Mr. Deng, counsel for the plaintiff, fairly accepted that the Notices were protected by common interest privilege[7]. VII. DISCUSSION OF THE EVIDENCE 34.I now proceed to consider whether the defence of common interest privilege is defeated by malice. In my view, the issue of malice is a central issue in this case. As the issue of malice (i.e. issues 4 and 5 above) is a question of fact depending essentially on the credibility of Ms Tam and Mr. Cheung, the only 2 witnesses who gave evidence for the plaintiff and the defendant respectively, I digress to deal with the test for assessing credibility of witnesses. A. Test for assessing credibility of witnesses 35.In Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, Deputy High Court Judge Thomas Au (as he then was) observed that in assessing the credibility of a party’s case, the court should take into consideration the following (at para.53):-
36.This dicta was cited with approval by the Court of Appeal in Ageas Insurance Company (Asia) Ltd v Lam Hau Wah Inneo, CACV65/2014 (unreported, 9 January 2015) at para.38 perKwan JA. See: Singh Harjit v Determination Business Ltd t/a Muse Studio, DCEC 1082/2011 (unreported, 27 February 2015) at para.12 per Deputy District Judge Sanjay A Sakhrani. 37.In my view, the contemporaneous documents provide the best guide as to what actually happened. As the Court of Appeal observed in Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at para.158 at p.494, where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them. B. Discussion of Ms Tam and Mr. Cheung’s evidence 38.I shall apply the above principles in assessing the credibility of Ms Tam and Mr. Cheung. 39.Ms Tam gave evidence in a straightforward and candid manner and impressed me as a truthful witness. Applying the test set out above, I find that Ms Tam’s evidence is consistent with probabilities and generally with contemporaneous documents. 40.On the other hand, as a witness Mr. Cheung was unsatisfactory. His evidence is contradicted by contemporaneous documents, incoherent or self-contradictory. Furthermore, generally, where Mr. Cheung’s evidence conflicts with that of Ms Tam, I prefer the latter. I will explain this later when I deal with specific parts of their evidence below. 41.As a proper determination of the question of malice requires findings to be made with respect to facts, it is necessary to examine the evidence in detail to make the necessary factual findings. I shall discuss Mr. Cheung and Ms Tam’s evidence under the discrete but related issues under Section VII.B.1 to VII.B.14 below. Some of the issues relate to the Words, in which case I will identify the “Point” in the 1st Notice and the paragraph in the 2nd Notice to which they relate. Some of the issues do not relate to the Words, and strictly speaking it is not necessary for me to make any findings thereon. However, as these issues may be relevant to the issue of malice, and for completeness, I shall deal with them and make the necessary factual findings where appropriate. 42.As the Words were generally concerned with Ms Tam’s conduct as a District Councillor, I shall begin with the District Council election held on 6 November 2011. B.1 District Council election held on 6 November 2011 43.Wong Tai Sin District Council is one of the 18 District Councils in Hong Kong. For electoral purposes Wong Tai Sin District is divided into 25 constituencies, and Lung Sing is one of them. Lung Sing Constituency is the constituency in which the Estate is situated. 44.It is not in serious dispute that Ms Tam and Mr Choi were political rivals and that Mr Cheung was friendly with Mr Choi. In the District Council election held on 18 November 2007, Ms Tam and Mr Choi were candidates in the Lung Sing Constituency, and Mr Cheung was Mr Choi’s election agent. Mr Choi won the election. In the District Council election held on 6 November 2011, Ms Tam and Mr Choi were again candidates in the Lung Sing Constituency. This time she won the election. After the publication of the Notices, in the District Council election held on 22 November 2015, both Ms Tam and one Lam Chok were candidates in the Lung Sing Constituency, and Mr Choi and Mr Cheung campaigned for Lam Chok. Ms Tam won the election. 45.It is also not in serious dispute that Mr. Choi had a close relationship with the IO. He was the Chairman of the MC from 2004 to 2008, and the Secretary of the MC from 2008 to 2013. He has also been a member of the MC since a date unknown to the time of the trial. 46.It is the unchallenged evidence of Ms Tam that after she won the 2011 District Council election against Mr Choi, she requested the IO to allow her to use the notice boards of the Estate in the same manner as Mr. Choi as before for the purpose of communicating with the owners of the Estate. However, her request was refused by the IO without giving any proper reason. Ms Tam’s request is reflected in a letter from her to the IO dated 30 April 2013, and the IO’s refusal is reflected in a letter from Mr Cheung (in his capacity as the Chairman of the IO) to Ms Tam dated 17 July 2013. 47.In the aforesaid letter dated 30 April 2013, Ms Tam said that past District Councillors were allowed to use the notice boards of the Estate for the purpose communicating with the owners of the Estate and that since she had been elected as the District Councillor in the Lung Sing Constituency many owners in the Estate had complained to her that they were unaware of the promotion or information of her District Councillor’s Office. She requested the IO to reinstate the practice of allowing District Councillors to use the notice boards of the Estate for the purpose of communicating with the owners of the Estate. Ms Tam further stated that a refusal might give rise to a suspicion that the IO was adopting a double standard or was not adhering to the principle of fairness and justice. 48.In the aforesaid letter from Mr. Cheung dated 17 July 2013, he never denied that the IO had the practice of allowing past District Councillors to use the notice boards of the Estate for the purpose of communicating with the owners of the Estate, but rejected Ms Tam’s request on the pretext that the Estate did not have Councillors’ notice boards. 49.The above shows that Mr Cheung and the IO were unfriendly toward Ms Tam, had treated Ms Tam differently and unfavourably compared with Mr. Choi and had targeted her since at least the time she won the 2011 District Council election against Mr. Choi. B.2 Western doctor’s clinic (2nd issue of Point 5) 50.The letter from Pioneer to Ms Tam dated 15 January 2018 clearly shows that the tenant of shop 104, a western doctor, had delivered vacant possession of shop 104 to the HA as early as 26 July 2011. After Ms Tam won the 2011 District Council election against Mr. Choi, she requested the HA to provide her with a District Councillor’s Office so that she could start serving the people in her constituency. As Mr. Choi needed time to reinstate his District Councillor’s Office at shop 202A and could only vacate shop 202A by the end of January 2012, Ms Tam and the HA agreed that she could use shop 104 as a temporary office for about a months’ time until such time when shop 202A became available, which she started using since around early February 2012. 51.After using it for some time, Ms Tam found that the ground floor location of shop 104 was convenient to the elderlies, wheelchair users and the general public whilst shop 202A was not so convenient. On 7 and 14 February 2012, she had meetings with the HA in which she requested the HA to allow her to use shop 104 as a permanent office on the aforesaid bases. By a letter dated 14 February 2012, Ms Tam asked the IO to support her request. There does not appear to be any reply from the IO to her letter. Unbeknown to her, the IO had written two letters to the HA dated 20 January and 12 February 2012 respectively objecting to her request. 52.By a letter dated 2 March 2012, the HA stated that it understood that shop 104 was indeed convenient to the elderlies and wheelchair users and consented to Ms Tam’s request. The HA further asked Ms Tam to pay mesne profits for the use of shop 104 from 6 February 2012 until the new tenancy agreement in respect of shop 104 would become effective. 53.On or about 3 March 2012, there was a formal opening of Ms Tam’s District Councillor’s Office at shop 104. On the same night, a group of people (including Messrs Choi and Cheung) staged a protest in the Shopping Centre against Ms Tam’s use of shop 104 as her District Councillor’s Office. They displayed a big banner that bore the words “抗議房署包庇本區議員強佔龍蟠苑商場診所” (which can be translated as: “Objecting to the HA’s harbouring of District Councillor’s forcible occupation of the clinic in the Shopping Centre”) and two smaller banners that bore the words “議員強佔診所 損民利己” (which can be translated as: “District Councillor forcibly occupied clinic Harm others to benefit herself”) and “抗議房署包庇 強佔診所” (which can be translated as: “Objecting to the HA’s harbouring of forcible occupation of clinic”). Mr Choi was standing behind the big banner. Mr Cheung used a loudspeaker at the protest. 54.In my view, in the circumstances as described above, there is no basis for the allegation that Ms Tam had “forcibly occupied” (“強佔”) the western doctor’s clinic, when vacant possession of the same had been delivered to the HA over 7 months ago on 27 July 2012 before Ms Tam used it as her permanent District Councillor’s Office since about 5 March 2012. There is similarly no basis for the allegation that the HA was harbouring (“包庇”) any forcible occupation of shop 104 by Ms Tam. These allegations made by the group of individuals (including Mr Choi and Mr Cheung) against Ms Tam were untruthful. 55.Whilst Ms Wong sought to portray Mr Cheung’s protest as an expression of view by an owner of the Estate[8], the undisputed fact is that Mr Cheung actively participated in a protest against Ms Tam, who won the 2011 District Council election against Mr Choi, for whom he was the election agent, and associated himself with the untrue allegations in the big banner and the small banners (as I have found). Furthermore, at the time of the protest, Mr Cheung was a member of the MC, and Mr Choi was the Secretary of the MC, and that they were protesting against Ms Tam’s use of shop 104 as her District Councillor’s Office. Indeed, Mr Cheung’s objection to Ms Tam’s use of shop 104 as her District Councillor’s Office did not stop there, but had continued and intensified in June 2014 when the IO issued the 1st Notice and alleged that Ms Tam wrongly occupied shop 104 and wrongly set up her District Councillor’s Office thereat, which forced the western doctor’s clinic to be moved to the 2nd floor of the Shopping Centre and caused elderly patients and other patients to suffer further agony. 56.In or around 2014, after the renovation of the Shopping Centre, a western doctor’s clinic opened on the 2nd floor of the Shopping Centre, which was accessible by stairs as well as cargo lifts which had also been refurbished and was used by users of the Shopping Centre to reach the 2nd floor. 57.The above shows that Mr Cheung waged a personal vendetta and/or had harboured an ill feeling or grudge against Ms Tam since at least the time she won the 2011 District Council election against Mr. Choi.
58.At the owners’ annual general meeting held in January 2012, it was resolved that the management fees in the Estate would be increased by 18% with effect from April 2012. In or about February 2012, a number of owners of the Estate approached Ms Tam and voiced their dissent against the proposed increase in management fees. They asked her as to what steps they should take to oppose the proposed increase in management fees. She advised them to convene an owners’ meeting to discuss the proposed increase in management fees. 59.On 3 February 2012, Chan Kwok Chung (“Mr. Chan”), an owner of the Estate, issued a notice entitled “反對瘋狂加管理費” (which can be translated as: “Objecting to dramatic increase in management fees”) and asked the owners to sign the reply slip attached thereto, requesting the IO to convene an owners’ extraordinary general meeting to discuss, inter alia, the suspension or stay of the proposed increase in management fees. More than 5% of the owners had signed the reply slip. At the extraordinary general meeting held on 20 May 2012 (“the 2012 EGM”), owners representing 60.14% of all the undivided shares in the Estate resolved to, inter alia, suspend or stay the proposed increase in management fees. Ms Tam was given a proxy by an owner to attend the 2012 EGM and to observe the proceedings therein, but she did not vote thereat. 60.The IO and Mr Cheung alleged that Ms Tam used her loudspeaker to speak loudly to the owners present at the 2012 EGM and to disrupt the meeting. I do not accept their allegation. The IO and Mr Cheung’s allegation is unsupported by any contemporaneous documents. Despite the fact that the 2012 EGM was video-recorded, no video-recording was produced to substantiate their allegation. Their allegation was made for the first time in the IO’s Defence. I accept Ms Tam’s evidence that at the 2012 EGM, the IO restricted the number of owners allowed to speak, limited the time each owner was allowed to speak and deliberately turned down the volume of the loudspeaker. Ms Tam therefore went back to her office to fetch her loudspeaker and lend it to the owners. I also accept her evidence that she used the loudspeaker to test if it worked and to demonstrate to the owners present how to operate it and that she did not use the loudspeaker to disrupt the meeting.
61.Before the 2011 District Council election held on 11 November 2011, by a letter dated 17 October 2011, Ms Tam suggested the HA to “rejuvenate” (“活化”) the Shopping Centre, which should include the introduction of new shops such as western medical clinic and dental clinic and the building of barrier-free access. She sent a similar letter to the owners of the Estate. 62.After she won the election, on 9 March 2012, Ms Tam had a meeting with the HA in which she expressed her views on the rejuvenation of the Shopping Centre. By a letter dated the same day, she thanked the HA for listening to her views and requested the HA to provide more detailed information about its plan to rejuvenate the Shopping Centre. On 15 March 2012, Ms Tam (and a staff of her District Councillor Office) had another meeting with the HA in which they discussed and exchanged views about the rejuvenation of the Shopping Centre. They discussed the overall plan for the renovation of the Shopping Centre, improvement of the exterior of the shops and the duration of the tenancies of the shops. Ms Tam made a contemporaneous record of this meeting. By a letter dated 16 March 2012, the HA thanked Ms Tam for her valuable views and stated that it would seriously consider the same. 63.By a letter dated 7 December 2012, Ms Tam suggested the HA to, inter alia, cover the slope on the entrance to the Shopping Centre near Lung Chu Court (Block C) of the Estate (“the Area”) with anti-slippery material. By a letter dated 23 January 2013, the HA informed Ms Tam that it had instructed Pioneer to cover the Area with anti-slippery material. 64.However, by a notice dated 17 January 2014, the IO informed the owners of the Estate that due to the efforts of the IO over the years, the HA had started renovating the Shopping Centre, and the renovation works included replacing floor tiles. 65.By a letter dated 26 March 2014, the HA confirmed that according to their record, only Ms Tam had by her letter dated 7 December 2012 suggested to cover the Area with anti-slippery material and to replace the floor tiles thereat. B.5 2012 Legislative Council election 66.Ms Tam was a candidate for the Kowloon East Constituency in the 2012 Legislative Council election held on 9 September 2012. On 25 July 2012, she submitted her nomination form. On the next day, 26 July 2012, the IO filed a Notification of Decision on Electioneering Activities with the returning officer of the Kowloon East Constituency (“the Notification”) which was signed by its then Chairman Lee Ning Chung (“李寧中”) (“Mr. Lee”), stating that it would not consent to any electioneering activities to be carried out within the Estate. 67.The office of Ms Tam’s election campaign team was situated at the Shopping Centre. During the period from around 7 to 20 August 2012, Hong Yip monitored the locations of Ms Tam’s election campaign vehicles within the Estate. Photos were taken and incident reports prepared. Most of the photos show that Ms Tam’s election campaign vehicles were parked at the loading bay of the Shopping Centre, which was under the management and control of the HA/Pioneer[9]. None of the incident reports contained any complaint from any owner of the Estate about nuisance caused by Ms Tam’s election campaign vehicles. Indeed, in the incident report dated 8 August 2012, it is stated that Ms Tam’s election campaign vehicle NF5171 did not turn on the loudspeaker and did not cause nuisance to the owners. 68.It is unclear whether the IO’s non-consent to any electioneering activities to be carried out within the Estate included prohibiting election campaign vehicles from entering the Estate altogether. If that were so, it would pose hardship on Ms Tam’s election campaign because, as noted, the office of her election campaign team was situated inside the Management Office and it is her evidence (which I accept) that her election campaign vehicles were used for transporting her and her election term as well as election materials. It is also her evidence (which I also accept) that as the carpark was under the management of Pioneer, her election campaign team had earlier enquired with the HA, and the HA had confirmed that it had no objection to the use of the carpark by her election campaign vehicles. 69.It appears that at least up to 15 August 2012 the IO did not consider that it had the right to prohibit election campaign vehicles from entering the Estate. That this is the case can be seen from the letter from the IO to the HA dated 15 August 2012, in which the IO stated that as the gate guarding vehicular access to the Estate was under the management of Pioneer, it asked the HA to prohibit all election campaign vehicles from entering the Estate. By this letter, the IO complained about election campaign vehicles entering the Estate. Although the letter did not identify the election campaign vehicles complained of as belonging to Ms Tam, all the photos enclosed with the letter show Ms Tam’s election campaign vehicles only. 70.By a letter dated 17 August 2012, the HA informed the IO that the HA had no power to prohibit any vehicle from entering the Estate, that the IO was the only entity that had the power to prohibit any vehicle from entering the Estate but that should the IO decide to take any action, such action should not affect the right of other owners. 71.By a letter dated 17 August 2012, addressed to Ms Tam, the IO stated that Ms Tam’s election campaign vehicles had entered the Estate on multiple occasions and alleged that this was in violation of the election rules of the Estate and the Registration and Election Office (“the REO”). The IO further stated that should Ms Tam’s election campaign vehicles continue to enter and park at the Estate (including the driveways, roundabout and loading bay), the IO would impound them without further notice. 72.On 20 August 2012, the MC held a meeting in which Messrs Choi and Cheung attended. It was resolved that private security firms would be hired to enforce the IO’s rules of not allowing any electioneering activities to be carried out within the Estate. The minutes of the meeting mentioned that “a candidate” had entered the Estate to campaign and cause nuisance to the owners (“某候選進入本苑作宣傳及滋擾居民“). Although the name of the candidate was not mentioned, there is no doubt that this was a reference to Ms Tam. 73.On 21 August 2012, Ms Tam orally complained to the Executive Officer of the Wong Tai Sin District Council about the IO’s unfair treatment. The incident that she complained about was that on 20 August 2012 when her election campaign vehicle entered the carpark of the Shopping Centre and parked at the loading bay, the driver was warned by the IO that if her election campaign vehicles entered the Estate again the IO would impound them, but that the election campaign vehicle of another candidate, Wu Chi-wai (“Mr. Wu”), was allowed to enter and park at the Estate without any warning from the IO. The fact that Mr. Wu’s election campaign vehicle had entered and parked at the Estate on 20 August 2012 is confirmed by an incident report of Hong Yip dated 20 August 2012. 74.By a letter dated 29 August 2012, the IO complained to the REO about the alleged electioneering activities carried out by Ms Tam within the Estate. In the letter, the IO further referred to an incident on 20 August 2012 in which a member of the MC was assaulted by the driver of Ms Tam’s election campaign vehicle[10]. 75.By a letter dated 14 September 2012, addressed to the REO, Ms Tam again complained that the election campaign vehicle of Mr Wu was allowed to park at the carpark without receiving any warning from the IO. 76.The above shows that the IO was unfriendly toward Ms Tam, had treated Ms Tam differently and unfavourably compared with the other candidate, Mr. Wu, and had targeted Ms Tam. This can best be seen by the photos taken on 23 and 24 August 2012, which depicted a security guard of Hong Yip holding a sign bearing the words “嚴禁宣傳” (which can be translated as: “Promotion forbidden”). This security guard would move to a position behind Ms Tam’s election campaign vehicle, holding the sign for the camera so that photos could be taken of him holding the sign and Ms Tam’s election campaign vehicle together. This was done for the sole purpose of showing that Ms Tam’s election campaign vehicles were allegedly in violation of the Estate’s election rules. No such photos had been produced by the IO in respect of the election campaign vehicles of the other candidate, Mr. Wu. B.6 The incident of the alleged assault of Mr. Cheung 77.On 21 August 2012, after Ms Tam’s election campaign vehicle had entered the Estate, Mr Cheung, then a member of the MC, asked the driver to leave. He alleged that he was assaulted by the driver. However, whether in the IO’s Defence or in Mr. Cheung’s witness statement, no particulars of the alleged assault were given. His witness statement contained only a short paragraph on this issue, in which he simply alleged that he was “assaulted” by the driver, and the only contemporaneous record of the alleged assault are two photos, with the 1st one showing that he was lying on the ground next to Ms Tam’s election campaign vehicle with his head facing the ground, and the 2nd one showing that he was lying next to a stretcher after an ambulance had arrived. 78.On the other hand, it is Ms Tam’s case that Mr Cheung voluntarily fell onto the ground. On 22 August 2012, Ms Tam made a formal complaint to the REO about the false accusation made by Mr. Cheung. 79.It is common ground that an ambulance and the police attended the scene and Mr. Cheung was taken to the hospital. Under cross-examination, Mr Cheung alleged that (1) a staff of Hong Yip was present at the scene and took a video of the incident (the 1st photo mentioned in para.77 about shows that a staff of Hong Yip was taking a video or photo of the incident with a telephone); (2) he was taken to the hospital and, although he believed that his injury was serious, he was able to be discharged from the hospital and go to work the next day; (3) the doctors suggested him to take an MRI scan but he did not do so; (4) he only took Panadol. 80.However, no video or medical reports were produced at the trial. 81.By a letter dated 14 December 2012, the IO followed up the matter with the police. This letter was on the IO’s letterhead and signed by Mr. Lee (in his capacity as the then Chairman of the IO) and Mr. Cheung. On 25 January 2013, The IO sent another follow-up letter to the police. By a letter dated 28 January 2013, the police informed the IO that they had completed investigation and the matter had been passed to the Department of Justice for advice. On 6 May 2013, the IO’s solicitors sent a further follow-up letter to the police. Despite the various letters sent by the IO and its solicitors, no criminal prosecution had been brought against the driver. By a letter dated 2 January 2018, Ms Tam asked the police to provide her with the police statements and other relevant information relating to this matter. By a letter dated 22 January 2018, the police informed Ms Tam that after completion of the investigation, the police statements and other relevant information relating to this matter had been destroyed. 82.Therefore, before the publication of the Notices, there was a prior personal altercation between Mr Cheung and Ms Tam, with both sides complaining against the other side.
83.By a notice dated 30 November 2012, the IO informed the owners that based on a questionnaire survey of the owners of the Estate undertaken by the IO in early October 2012, 51.89% of the owners were in favour of increasing the management fees by 18%, and therefore it had decided to increase the management fees by 18% with effect from 1 January 2013. 84.By a notice dated 10 December 2012, Mr. Chan referred to the resolution of the owners passed at the 2012 EGM to suspend or stay the increase in management fees and asked the owners to sign the reply slip attached thereto, requesting the IO to, inter alia, hold an owners’ meeting to discuss the suspension or stay of the increase in management fees and provide copies of certain accounting documents of the IO from 2007 to 2012. 85.On 4 February 2013, Ms Tam accompanied Mr. Chan and 4 other owners to submit to the IO a letter dated 1 February 2013 enclosing the signatures of 266 owners of the Estate, being not less than 5% of the owners of the Estate, by which they requested the IO to, inter alia, convene an extraordinary general meeting to discuss the suspension or stay of the increase in management fees and provide copies of various accounting documents of the IO from 2007 to 2012 86.By a letter dated 26 February 2013, the IO acknowledged receipt of the signatures of not less than 5% of the owners of the Estate and stated that the extraordinary general meeting would be held on 9 March 2013. 87.The IO and Mr Cheung alleged that on 1 March 2013, Ms Tam and certain owners attempted to destroy the proxy collection box placed on the ground floor lobby of each block of the Estate. On 5 March 2013, the IO issued a notice entitled “數名業戶及某區議員滋事企圖蓄意破壞授權書收集箱影響箱內授權書” (which can be translated as: “Several owners and a District Councillor caused troubles and attempted deliberately to damage the proxy collection box and tamper with the proxy forms therein”), accusing Ms Tam and several owners of deliberately attempting to damage the proxy collection box and to tamper with the proxy forms therein on 1 March 2013. 88.I do not accept the IO and Mr. Cheung’s allegation. As is made clear by the letter from the police dated 5 February 2018, Ms Tam was the only person who reported the matter to the police on 1 March 2013 (report no. 13007860). This is consistent with Ms Tam’s evidence (which I accept) that on 1 March 2013 she received a call from Mr. Chan stating that the number of proxy forms in the proxy collection box in his block appeared to be less than what he saw in the morning, and as a result she attended the block and called the police to investigate the matter, and that the police and she reviewed the CCTV footage and found that a security guard had used a ruler to press the proxy forms down the proxy collection box. 89.I reject Ms Wong’s submission that by the letter dated 5 February 2018, the police “replied that it could not retrieve each case to confirm whether [Ms Tam] was the only person who called the police on that occasion”[11]. This submission is contradicted by the letter itself. I also rejected Ms Wong’s submission that Ms Tam’s oral testimony on this issue is incredible because it is inconsistent with her witness statement[12]. Whilst there are slight differences between the two, I find that Ms Tam’s evidence on this issue is on the whole consistent and credible: in both her witness statement and oral testimony, the focus is on her calling the police after receiving Mr Chan’s call, and the review of the CCTV footage of the proxy collection box by her and the police. Her version of event is also supported by the aforesaid letter from the police dated 5 February 2018. 90.As Ms Tam was the only person who reported the matter to the police on 1 March 2013, I find that the IO’s allegation in the notice dated 5 March 2013 that Hong Yip had reported the matter to the police and that the police was investigating the matter (“管理公司當時已報警，現交由警方處理”) is false. I also find that the IO’s allegations in the notice dated 5 March 2013 that Ms Tam and certain owners deliberately attempted to destroy the proxy collection box and to tamper with the proxy forms therein were false and defamatory of Ms Tam. 91.On 9 March 2013, the IO published a notice entitled “澄清失實通函” (which can be translated as “Clarification of untrue notice”), replying to a notice issued by a group of owners of the Estate (“一群龍蟠苑 (A-F座) 坊眾”). There is no evidence that Ms Tam was involved in the preparation or issue of that notice. However, in the notice dated 9 March 2013, the IO accused Ms Tam of attacking the IO, destroying the harmony of the Estate and creating confusion (“此舉絕對使人懷疑此議員的實際目的: 真的是為人民請命? 還是，藉此攻擊法團，破壞龍蟠苑安寧和諧、是為其政治目的呢? 區議員的職責是建設社區，並不是破壞屋苑和諧、製造混亂”). In my view, there is no basis for these allegations. I find that these allegations were false and defamatory of Ms Tam. 92.According to the notice dated 9 March 2013, the only reason that the IO made the allegations against Ms Tam was that she had assisted the owners of the Estate to oppose the increase in management fees. Even assuming that Ms Tam had assisted the owners to oppose the increase in management fees (as noted, she had advised them to request the IO to convene an extraordinary meeting to discuss this matter), this did not justify the IO to unnecessarily dragged Ms Tam into this matter and make false and defamatory allegations against her. In my judgment, the false and defamatory allegations made by the IO in the notices dated 5 and 9 March 2013 revealed the grudges and animosity harboured by the IO and Mr Cheung against Ms Tam. 93.The IO and Mr Cheung alleged that at the extraordinary general meeting held on 9 March 2013 (“the 2013 EGM”), Ms Tam allowed certain owners to use her loudspeaker to speak loudly to the other owners present thereat, thereby causing nuisance to the meeting. Similar to their allegation concerning the 2012 EGM, the IO and Mr Cheung’s allegation concerning the 2013 EGM is also unsupported by any contemporaneous documents. Even in the notice issued by the IO two days later on 11 March 2013[13] (see below), no such allegation was made against Ms Tam. This allegation was made for the first time in the IO’s Defence. I accept Ms Tam’s evidence that similar to the 2012 EGM, the IO imposed similar restrictions on the owners, and that in an attempt to speak at the meeting some of the owners requested to borrow her loudspeaker, but that they behaved in a civilized manner and did not cause any nuisance during the meeting[14]. 94.The IO and Mr Cheung also alleged that at the 2013 EGM, a security guard was assaulted and injured by Lam Yan Tat (“Mr Lam”)[15], an owner of the Estate. The police was called, and Mr Lam was subsequently charged with assaulting the security guard. However, whether in the IO’s pleading or witness statements, no particulars of the alleged assault were given. 95.Two days after the 2013 EGM, on 11 March 2013, the IO issued a notice entitled “保安人員維持業主大會秩序被業戶強行推撞倒地導致受傷” (which can be translated as: “A security guard was forcibly pushed by an owner, fell on the ground and was injured whilst carrying out his duty in maintaining order of the owners’ meeting”), alleging that a security guard was forcibly pushed and injured by an owner who was rude and impolite, and had to be sent to the hospital immediately (“管理公司一名的員工維持會場秩序被一名業户不禮貌對待，更被推撞倒地導致受傷，需即時送院醫治”; “而該名粗暴業戶亦當場被警方帶返警署，警方正跟進此事”). 96.Mr Lam denied the charge. In the subsequent criminal proceedings brought against him, Mr Lam obtained a video recording of the 2013 EGM. There is no dispute that the footage in the video recording originated from the IO. The video recording was played in Court during Mr Cheung’s cross-examination. I accept that para.3.35(6) of Mr. Deng’s closing submission is an accurate summary of what was captured in the video recording, namely, after falling onto the ground, the security guard stood up immediately and used the phone and was not injured at all. Ms Wong accepted in para.58 of her closing submission that the video recording showed that Mr Lam “bumped” into the security guard. She made no submission that Mr Lam forcibly pushed (“強行推撞”) the security guard causing him to fall. 97.Incidentally, I note that the IO has not disclosed the video recording in these proceedings; instead it was Ms Tam who disclosed the same. 98.As a result of the production of the video recording at the criminal proceedings, Mr Lam was acquitted of the charge. After his acquittal, by two letters both dated 11 July 2013, Mr. Lam complained to Sung Hung Kai and Hong Yip about being falsely accused by the security guard. Mr. Lam stated in the letters that when he was about to attend the 2013 EGM, 2 security guards (whom he identified by name) alleged that he was attempting to take photos and asked him to leave. Mr. Lam further stated that the 2 security guards falsely accused him of pushing them and were injured by him. Mr Lam asked Sun Hung Kai and Hong Yip to investigate into the matter and punish the security guards concerned. 99.On 24 August 2013, Ms Tam accompanied Mr Lam and 4 other owners to have a meeting with the general manageress in Hong Yip’s Kwun Tong District to complain about the security guards. During the meeting, the general manageress promised them that if the complaint against the security guards were found to be established, then they would be punished. 100.However, on 20 September 2013, the IO issued a notice entitled “保安員盡忠執行職務 竟遭某議員及數名業主無理投訴及要求撤換” (which can be translated as: “Security guard was doing his utmost to discharge his duties A District Councillor and several owners unreasonably complained about him and demanded his dismissal”), stating that the security guard was doing his utmost to discharge his duties loyally and that the IO was surprised at and extremely dissatisfied with the absurd statements and unreasonable demands of Ms Tam and the owners concerned (“本法團對某議員及數名業戶之荒謬言論及無理要求感到驚訝及極表不滿”). The IO further demanded Ms Tam and the owners concerned not to falsely accuse and defame the security guards who had worked with heart and soul and not to attempt to destroy the morale of the staff and create unrest in the Estate (“本法團極力要求該名業主及某議員不要再胡亂誣告及誹謗我們盡心盡力的保安員，不要企圖打擊駐苑員工士氣，乘機製造不安”). 101.In my view, the allegations in the IO’s notice dated 20 September 2013 were grossly exaggerated. For what Ms Tam did was to accompany some of the owners to have a meeting with the general manageress in Hong Yip’s Kwun Tong District, in which they demanded Hong Yip to investigate into the matter. As noted, the general manageress promised them that if the owner’s complaint was found to be established then the security guard would be punished. As an owner of the Estate who had been charged with a criminal offence but was acquitted after the defence disclosed the video recording of the 2013 EGM, Mr Lam was entitled to complain to Sun Hung Kai and Hong Yip about the security guard, and Ms Tam, as the District Councillor in the Lung Sing Constituency, was entitled to accompany Mr Lam to make the complaint. In my view, Mr Lam’s complaint was seized upon by the IO to attack Ms Tam, and the grossly exaggerated allegations in the notice dated 20 September 2013 revealed the grudges and animosity harboured by the IO and Mr Cheung against Ms Tam.
102.For more than a decade, the Tung Wah Group of Hospitals (“TWGH”) has authorized the IO to organize, in the name of TWGH, an annual fundraising event at the Estate. The fundraising event normally takes place in the last weekend of November and the first weekend of December. During the event, more than 20 stalls selling a variety of goods for charitable purposes would be erected in the Estate’s common areas. Also, a banner bearing the words “歡樂滿東華” would be displayed behind the stalls. 103.During the fundraising event in December 2012, Mr. Chan approached Ms Tam and raised concerns about the propriety of the IO’s fundraising activities. Mr. Chan told her that the stalls did not have designated donation collection boxes. Mr. Chan also informed her of the rumours that the IO was collecting rent from the occupiers of the stalls in violation of TWGH’s rules. On 9 December 2012, Ms Tam had a meeting with Ms Wong, the fundraising manageress of TWGH, to discuss the concerns raised by Mr. Chan. 104.On 27 December 2012, Ms Wong wrote to the IO, conveying the owner’s concern to the IO. Subsequent correspondence between TWGH and the IO ensued. It is readily apparent that the IO had not fully answered TWGH’s queries. In particular, by a letter dated 17 January 2013, Ms Wong asked the IO whether TWGH’s rules for the fundraising event issued on 3 October 2012 had been brought to the attention of the owners of the Estate and whether all of the donations were deposited into TWGH’s designated donation collection boxes. TWGH’s rules provided (at paras.9 and 11 respectively) that all the donations must be deposited into TWGH’s designated donation collection boxes (“所有捐款必須即時由善長直接放入東華三院的捐款箱內”) and that the participant must not charge rent for the stalls (切勿採用賭博或收取賣物攤位租金而讓租賃者售貨謀利的形式籌款…) 105.In its reply letter dated 22 January 2013, the IO did not specifically answer TWGH’s questions, but simply stated that fundraising posters had been posted at various conspicuous locations of the Estate and that the donations were deposited into the designated donation collection boxes. 106.By a letter dated 13 February 2013, Ms Tam sent to Ms Wong two fundraising leaflets issued by the IO to the owners of the Estate in 2007 and 2012, in which the IO stated that it would charge rent for the stalls for $800 a day or $1,500 for two days. In the letter, Ms Wong also stated that the IO had violated TWGH’s fundraising rules. 107.By a letter dated 18 March 2013, Ms Wong informed Mr Chan that as the fundraising leaflets issued by the IO in 2007 and 2012 showed that the IO had charged rent for the stalls, TWGH suspected that the IO had violated TWGH’s fundraising rules. Ms Wong further stated in the said letter that TWGH had decided to reprimand the IO and suspend the IO from participating in TWGH’s fundraising event for a period of 3 years (“本院已決定譴責該法團，並將於三年內不再邀請該法團參加《歡樂滿東華籌款活動》，直至另行通知為止”). 108.It appears that the IO had responded to the aforesaid decision of TWGH. By a letter dated 21 March 2013 (which was unsigned and was disclosed by the IO on the 8th day of the trial), the IO protested against the aforesaid decision of TWGH, stating that the decision was unfair, that the IO did not charge any rent for the stalls and that the “rent” charged was in fact “fees charged for charity stalls”. 109.On 27 March 2013, the IO issued a notice to the owners of the Estate, stating that (1) in order to raise more funds the IO charged fees for the stalls for $800 a day or $1,500 for two days; (2) all the funds raised were donated to TWGH; and (3) certain stalls might have failed to follow TWGH’s fundraising rules. 110.On 3 April 2013, the IO issued another notice to the owners of the Estate. The IO attached thereto a letter dated 3 April 2013 from the TWGH to the chairman (Li Tak-hong) and vice-chairman (Wong Kam-Chiu) (“Mr. Wong”) of the Wong Tai Sin District Council, in which TWGH stated that after careful consideration it decided to actively consider any application by the IO for participating in TWGH’s future fundraising events (“決定積極考慮龍蟠苑日後參加《歡樂滿東華》之申請”). However, in the said notice dated 3 April 2013, the IO stated that TWGH had confirmed that it had not suspended the IO from participating in TWGH’s fundraising events for a period of 3 years (“沒有禁止本苑三年內再參加籌款活動”) and that TWGH would continue to welcome the IO’s participation in its future charitable events (“東華三院確定本法團進行籌款活動過程中，沒有出現任何個人利益情況，故該院會繼續歡迎法團參加往後的慈善活動”). 111.Ms Tam then followed up with TWGH, the Social Welfare Department and the Legislative Council about this matter by her letters dated 6 April, 23 May and 28 May 2013 respectively. The Social Welfare Department and the Legislative Council Secretariat replied by their letters dated 9 September 2013 and 21 October 2013 respectively. Ms Tam further followed up with TWGH by her letter dated 9 September 2013, to which TWGH replied by its letter dated 19 September 2013. On 8 October 2013, Ms Tam sent a further letter to TWGH. 112.On 13 November 2013, the IO issued a notice to the owners of the Estate, stating that it had successfully participated in TWGH’s 2013 fundraising event (“已成功參加「歡樂滿東華2013」屋苑籌款活動”). Thereafter, in or around November 2013, banners bearing the words “龍蟠苑各界聯合籌備委員會主辦 (which can be translated as: “Organized by Lung Poon Court’s preparation committee”) (“the Preparation Committee”) and “龍蟠苑 (A-F) 業主立案法團全力支持” (which can be translated as: “Fully supported by the Incorporated Owners of Lung Poon Court (Blocks A-F)”) appeared within the Estate. 113.By a letter dated 19 November 2013, Ms Tam asked TWGH to request the IO to clarify to the owners of the Estate whether it had been approved by TWGH to be the organizer of TWGH’s fundraising event for 2013. 114.In its reply letter dated 27 November 2013, TWGH confirmed that it had asked the Preparation Committee to remove the banners containing words referring to the IO (“本院已於11月16日聯絡「龍蟠苑各界聯合籌備委員會」，並促請對方把印有龍蟠苑(A-F座)業主立案法團之橫額及告示除下). 115.On 5 January 2014, Mingpao published an article entitled “出租義賣檔 容檔主牟利 屋苑籌款違規5年東華始喊停” (which can be translated as: “Renting out charitable stalls Allowing renters to make profit Estate was only stopped by Tung Wah after violating fundraising rules for 5 years”) (“Mingpao’s January 2014 Article”), reporting on the fundraising event organized by the IO in 2012. Mr Choi, then a member of the IO, was reported to have said that the IO’s charge of rent for the stalls was wrong but the IO did so for charitable purposes and that TWGH’s decision to suspend the IO for a period of 3 years was unfair (“雖然出租攤檔籌款的作法有錯，但他們也是為了善事，有籌款義工給他公開信，指多年來出錢出力，東華三院卻以違規為由禁止法團參與籌款3年，做法不公道”). 116.Finally, by a letter dated 31 October 2014, TWGH informed Ms Tam that the suggestion in 2013 to suspend the IO from participating in TWGH’s fundraising events for a period of 3 years continued to be effective. 117.The contemporaneous documents set out above clearly show that TWGH had as early as 18 March 2013 decided to suspend the IO from participating in its fundraising events for a period of 3 years due to the IO’s violation of TWGH’s fundraising rules. TWGH’s said decision is shown in the letter from TWGH to Mr Chan dated 18 March 2013 and the letter from TWGH to Ms Tam dated 31 October 2014. It was also admitted by Mr. Choi, a member of the MC. That the IO had been so suspended by TWGH is indirectly supported by the fact that for the year 2013, the entity which purported to organize TWGH’s fundraising event at the Estate was not the IO but the Preparation Committee. 118.In my view, in stating that the IO had not been suspended (“沒有禁止”) and was welcome to participate in TWGH’s future fundraising events (“歡迎參加往後活動”), the IO’s notice dated 3 April 2013 was misleading because TWGH’s letter to Messrs Li and Wong also dated 3 April 2013 clearly shows that TWGH would only actively consider the IO’s application to participate in TWGH’s future fundraising events. I am also of the view that in stating that the IO had successfully participated in TWGH’s fundraising event in 2013, the IO’s notice dated 13 November 2013 was also misleading because in fact it had not done so. 119.Mr. Cheung admitted in cross-examination that (1) the IO made an application to participate in TWGH’s 2013 fundraising event but did not receive any feedback from TWGH; (2) Mr Wong, who was a member of the Preparation Committee, therefore proposed to him that the Preparation Committee would organize the event and the IO could support the Preparation Committee; (3) the banners were probably prepared by the Preparation Committee; and (4) he knew that including the IO’s name on the banners was in violation of TWGH’s rules and that the IO had been told that the banners had to be taken down. Thus, Mr. Cheung knew that TWGH’s suspension of the IO from participating in TWGH’s fundraising event for the period of 3 years remained effective for 2013. B.9 Unconscious old lady 120.On 19 May 2013, it was reported that an old lady was found unconscious at the corridor outside her unit in the Estate. 121.In the news article published by HK Headline, Ms Tam was quoted to have said that this incident highlighted the risk of elderly people living by themselves, that security guards should be more vigilant to prevent strangers from entering the building and that there were complaints by residents that security guards of the Estate had fallen asleep in the past. (“今次事件凸顯獨居長者存在危險，大廈保安必須提高警覺、防止陌生人進入大廈…過往曾有住客投訴發現保安員「瞌眼瞓」”). 122.In another news article published by Oriental Daily, Ms Tam was quoted to have said that she had received complaint from residents that the security measures in the Estate should be strengthened (“曾接獲屋苑居民稱，認為屋苑要加強保安”). 123.I accept Ms Tam’s evidence, which was not seriously challenged by Ms Wong, that she only knew about the case when she was first approached by the reporters, and that her extent of knowledge was from those who reported the case, and that therefore she was merely addressing the reporters’ enquiries based on the information she was provided. After Ms Tam made the comments to the reporters, it transpired that the old lady had falsely reported the incident herself. However, this was not known to Ms Tam at the time. 124.However, on 23 May 2013, the IO published a notice entitled “龍蟠苑業戶自編迷暈劫案事宜” (which can be translated as: “An owner of Lung Poon Court self-directed her falling unconscious and being robbed”), accusing Ms Tam of spreading the fallacy that the management company mismanaged the Estate and that the safely and security of the Estate was not good enough, which caused panic among the owners of the Estate and destroyed the morale of the staff of the management company (“在此案件發生後，本區區議員顯得份外關心，在警方調查期間，該議員已即時向傳媒說三道四，宣稱管理公司管理不善，苑內治安欠佳等等謬論，嚴重影響屋苑及管理公司形象及聲譽，更引起屋苑業戶恐慌乃人心惶惶。對於一直盡忠職守的前線保安職員加添壓力，大大打擊員工士氣，影響工作表現”). The IO further stated that Ms Tam’s conduct showed that she was careless and sloppy, that she had no contribution to the Estate at all, that she was pouring oil on the flames, that she were spreading false information to the media and the owners, that she destroyed the reputation of the Estate and failed to fulfill her duty as a District Councillor (“該議員的行為顯出她為人草率、做事毫無建樹，她沒有要求警方人員到場了解苑內保安設施及提供意見，反而在事件上自我宣傳及火上加油, 向傳媒及業户散播不實信息，破壞屋苑聲譽，完全沒有盡其議員應有的本份”). 125.In my view, the IO’s allegations in the notice dated 23 May 2013 were grossly exaggerated. I fail to see how Ms Tam’s comments would cause panic among the owners of the Estate, or reflect that she was careless and sloppy or that she had no contribution to the Estate or that she failed to fulfill her duty as a District Councillor. This incident was seized by the IO to attack Ms Tam, and the grossly exaggerated allegations in the notice dated 23 May 2013 revealed the grudges and animosity harboured by the IO against Ms Tam. B.10 The privacy issue (Point 3) 126.On 6 July 2013, certain owners of the Estate received an anonymous letter informing them that they had been secretly photographed by Hong Yip’s head of security and that their photos had been posted on a poster (“the VIP Poster”) in the security guards’ changing room located on the ground floor of Block A, with the words “opposition VIP” (“反對派VIP”) and “colleagues beware” (“各同事留意”) marked thereon. There were altogether 11 owners whose photos were posted on the VIP Poster, with their names and residential addresses stated beneath their photos (“the 11 VIP Owners”). It is indisputable that the 11 VIP Owners were those who had previously opposed to the IO’s proposed increase in management fees in early and late 2012. 127.On 16 July 2013, Ms Tam complained to Sun Hung Kai about the conduct of Hong Yip’s staff and requested Sun Hung Kai to investigate this matter. It appears that a similar letter was also sent by Ms Tam to the Privacy Commissioner. 128.On 31 July 2013, Mr. Cheung (in his capacity as the Chairman of the IO) wrote to Ms Tam, stating that (1) upon detailed inquiry with Hong Yip, the IO formed the view that the VIP Poster was for internal purposes to facilitate the staff’s management of the Estate and that there was no breach of privacy; (2) The MC had the duty to maintain the security and order of the Estate and therefore it had reminded Hong Yip’s staff to carefully handle the requests of the more aggressive owners (“較激進業戶”); and (3) the IO believed that the anonymous letter may have been sent by a staff of Hong Yip, in which case Hong Yip would punish the staff; or it may have been sent by someone who had sneaked into the changing room without permission to secretly take photos of the VIP Poster for an improper purpose, in which case the IO would report the matter to the police. 129.Upon receipt of the IO’s letter dated 31 July 2013, by a letter dated 1 August 2013, Ms Tam informed Mr Cheung that she would pass the letter to the Privacy Commissioner. 130.On 16 November 2013, Mingpao published an article entitled “反龍蟠苑加管理費 11業主被「點相」” (which can be translated as: “Opposing to increase in management fees in Lung Poon Court 11 owners were identified”) (“Mingpao’s November 2013 Article), reporting, inter alia, that when one of the 11 VIP Owners walked pass the changing room he found that the VIP Poster was affixed to the walls therein and that a reporter of Mingpao had also conducted a site visit and found that the door of the changing room was always kept open. 131.By a letter dated 29 January 2014, addressed to Ms Tam, the Privacy Commissioner enclosed therewith reasons for its decision not to continue with the case (“the Reasons”). In the Reasons, the Privacy Commissioner stated (at para.18) that the 11 VIP Owners’ personal information was collected so that Hong Yip’s staff would know about the “more aggressive” owners (“較激進的業戶”), that Hong Yip had on or about end of June 2013 removed and destroyed the VIP Poster and had also issued guidelines to its staff to remind them that they were not allowed to post any personal information of the owners in their work stations or to disclose such personal information to any third parties. The Privacy Commissioner did not find any breach of the Personal Data (Privacy) Ordinance (“PDPO”). B.11 Extension of free parking-time (Point 2) 132.Shortly before 19 September 2013, Ms Tam had been receiving complaints from the owners of the Estate that the 5 minutes free-parking time for cars entering the Estate was not enough, especially for the elderlies and wheelchair users. On 19 September 2013, Ms Tam wrote to the HA to request for an extension of free-parking time from 5 to 15 minutes for taxis and private cars entering the Estate. Ms Tam stated in the letter that she had received complaints from owners of the Estate stating that many taxi drivers refused to pick up elderly people from the carpark of the Commercial Centre as the free-parking time was only 5 minutes, which was not enough for the elderlies to get in and out of the cars. 133.By a letter dated 12 November 2013, Pioneer informed Ms Tam that as the public driveways within the Estate were under the IO’s management it had conveyed her request to the IO and that the IO had, after careful consideration, agreed to extend the free-parking time for cars picking up wheelchair and mobility aid users to 10 minutes (“立案法團經詳細考慮後，回覆表示同意延長接載使用輪椅或行動輔助器人士的車輛在屋苑內的免費停留時間至10分鐘”). 134.On 6 January 2014, Ms Tam wrote to thank the IO for agreeing to extend the free-parking time for cars picking up wheelchair and mobility aid users to 10 minutes. Ms Tam however stated that this was not followed up with any signage informing the public of the change. She also requested the IO to extend the free-parking time further to 15 minutes for all cars entering the Estate. 135.However, by a letter dated 30 January 2014, Mr Cheung (in his capacity as the Chairman of the IO) replied to Ms Tam’s letter dated 6 January 2014, stating that the IO had always had a special arrangement for wheelchair and mobility aid users and that there was no need for Ms Tam to be concerned about the affairs of the Estate (“本法團一直以來早已對傷健人士之車輛有特別安排，故毋需閣下操心本苑事宜”). But Mr Cheung did not deny that the IO had agreed to extend the free-parking time for cars picking up wheelchair and mobility aid users to 10 minutes as stated in Ms Tam’s letter dated 6 January 2014. 136.However, on 1 April 2014, the IO issued a notice entitled “龍蟠苑停車場免費停車時間被某議員誤導” (which can be translated as: “A District Councillor misled the owners about the free-parking time in the car park of Lung Poon Court”), stating Ms Tam, for the purposes of self-promotion, had announced to the owners of the Estate that she had successfully lobbied to have a 10 minutes free-parking (“某議員為求自我宣傳，向業戶自作宣告成功 「為有需要車輛爭取10分鐘免費停車」”), that Ms Tam dared to take advantage the Estate’s daily operations to mislead the owners to believe that it was her achievement (“某議員竟然斗膽將本苑日常運作，誤導業户當成自己的功績’) and that Ms Tam had wrongfully claimed credit for something that she had not done and had destroyed the harmony of the Estate (“抽水領功，破壞本苑安寧”). 137.Finally, by a letter dated 16 November 2016, Pioneer confirmed that after discussion with the IO in November 2013, the IO had agreed to extend free-parking time for car picking up wheelchair and mobility aid users to 10 minutes. 138.The contemporaneous documents clearly show that as a result of Ms Tam’s request contained in her letter dated 19 September 2013 for an extension of free-parking time, which request was conveyed by the Pioneer to the IO, and the IO agreed to extend free-parking time for cars picking up wheelchair and mobility aid users to 10 minutes. This is confirmed by the letters from Pioneer dated 12 December 2013 and 16 November 2016 respectively. 139.In my view, by reason of the matters aforesaid, the allegations contained in the IO’s notice dated 1 April 2014 as set out above were false and defamatory of Ms Tam. The false and allegations made in the notice dated 1 April 2014 revealed the grudges and animosity harboured by the IO and Mr. Cheung against Ms Tam. B.12 Inspection of the IO’s accounts (Point 6) 140.By the aforesaid letter dated 26 February 2013[16], the IO stated that paragraph 1A of Schedule 6 of the BMO only required it to allow the owners to inspect the financial documents but did not require the IO to provide copies of the financial documents and asked Mr. Chan to identify the provisions in the BMO under which the IO was obliged to provide the owners with copies of the financial documents. It appears that Mr Chan did not follow up with the IO’s letter dated 26 February 2013 until on or about 27 February 2014. 141.By a letter dated 27 February 2014, Mr. Chan, Cho Kwok Sun and Yu Hing Kwok (the latter two are also owners of the Estate), referred to the IO’s earlier letter dated 26 February 2013 and asked the IO to allow the owners to inspect the financial documents of the IO[17]. 142.By 3 letters dated 18 March 2018 addressed to Messrs Chan, Cho and Yu, Mr. Cheung (in his capacity as the Chairman of the IO) stated that as the IO had not received the signatures of not less than 5% of the owners of the Estate, their requests would not be acceded to. 143.By a letter dated 27 March 2014, addressed to Mr Cheung (in his capacity as the Chairman of the IO), Messrs Chan, Cho and Yu stated that the former Chairman Mr Lee had by his letter dated 26 February 2013 acknowledged receipt of the signatures of not less than 5% of the owners of the Estate and queried why Mr Cheung said that the IO had not received the same. 144.By a letter dated 29 April 2014, Mr Cheung (in his capacity as the Chairman of the IO) stated that the former Chairman Mr Lee had already in his letter dated 26 February 2013 explained why the IO rejected Mr Chan’s request. He also accused Messrs Chan, Cho and Yu of taking advantage of a crisis for personal gain, deceiving one-self and others (“渾水摸魚，自欺欺人”). B.13 The Working Report 145.As noted, on 30 May 2014, Ms Tam published the Working Report. In the preamble, Ms Tam mentioned the two articles published by Mingpao, namely, Mingpao’s January 2013 Article and Mingpao’s November 2013 Article. Ms Tam also reproduced Mingpao’s January 2013 Article and Mingpao’s November 2013 Article on the Working Report. 146.On the front of the Working Report, Ms Tam listed 6 issues relating to her work at the Estate. 5 of the 6 issues corresponded broadly to Point 1, Point 2, Point 3, 1st issue of Point 5 and Point 6 in the 1st Notice[18]. These 5 issues were:
147.As to Point 1, Ms Tam reproduced Mingpao’s Jan 2014 Article and extracted some of the words therein which stated, inter alia, that TWGH had decided to suspend the IO from participating in its future fundraising events for a period of 3 years. She also reproduced the letter from TWGH to Messrs Li and Wong dated 3 April 2013 and the notice issued by the IO dated 3 April 2013 and commented that TWGH’s response that it would actively consider the IO’s application in the future had been interpreted as TWHG not suspending but welcoming the IO to participate in TWHG’s future activities (“東華三院回覆「積極考慮日後參與之申請」被解讀為「沒有禁止、歡迎參加往後活動」”). 148.As to Point 2, Ms Tam stated that the IO’s implication that she falsely claimed credit for something she had not done had insulted her and her political personality. 149.As to Point 3, Ms Tam mentioned the VIP Poster, the complaint to Sun Hung Kai and the Privacy Commissioner. Ms Tam also reproduced Mingpao’s February 2014 Article, her letter to Sun Hung Kai dated 16 July 2013 and the IO’s letter dated 31 July 2013. At the end, Ms Tam questioned the IO’s justification for its action (法團(A-F座)憑甚麼理據進行這次行動), asking whether it was right to invade the owners’ privacy, monitor and exclude owners who held different opinions (“是否可以維持屋苑秩序為理由而侵犯各業戶的私隱，監控並排除異己”) and whether silencing and blocking different opinions would be conducive to the good long-term management of the Estate (“滅聲封殺是否長久的管理良方”). 150.As to the 1st issue of Point 5, Ms Tam stated that she had since 7 December 2012 suggested the HA to cover the Area with anti-slippery material, that the HA agreed to cover the Area with anti-slippery tiles and that the project was completed in January 2014. Ms Tam reproduced HA’s letter to her dated 26 March 2014. She referred to the IO’s notice dated 17 January 2014, stating that she would not allow others to steal the fruits of her efforts (“但本人亦絕不容許有任何冒認領功的行為，此等竊取他人辛勞成果為己功的低劣行為，實屬可恥”). She attached two photos showing renovation works being carried out at the Area and the completion of the renovation works thereat. 151.As to Point 6, Ms Tam referred to the letter dated 18 March 2014 in which the IO stated that it had not received the signatures of not less than 5% of the owners of the Estate, but she said that the former Chairman of the IO had already in his letter dated 26 February 2013 acknowledged receipt of the same. She further stated that the IO was still unwilling to allow the owners to inspect the financial documents of the IO, but instead accused the owners of taking advantage of a confused situation, and deceiving one-self and others (“渾水摸魚 自欺欺人”), which was insulting to the owners. Ms Tam also reproduced the letter issued by Mr Cheung dated 28 April 2014. 152.About two weeks later, on 16 June 2016, the IO published the 1st Notice. In the opening paragraph of the 1st Notice, the IO referred to the Working Report. The heading, opening paragraph, the 1st, 2nd, 3rd, 5th and 6th paragraphs and the concluding paragraph of the 1st Notice, which contained the Words, have been set out in paras.6 and 9 above. Broadly speaking, the 1st Notice contained a point-to-point reply to the Working Report. B.14 Hong Yip’s tendering practice for small projects of under $5,000 153.After the publication of the 1st Notice, in about July 2014, certain owners of the Estate approached Ms Tam and complained about improper tender procedure of Hong Yip. She also received an anonymous letter enclosing the minutes of a meeting of Hong Yip’s district managers held in the second half of 2013. The minutes showed that Hong Yip had adopted a policy of obtaining a single quotation from its affiliated company Lik Kai Engineering Company Limited (“Lik Kai”) for small projects of under $5,000 and that the remuneration of Hong Yip’s staff was linked to whether the staff was able to give small projects of under $5,000 to Lik Kai. Ms Tam therefore informed a reporter of Ming Pao and sked him to investigate the matter. 154.On 13 July 2014, Ming Pao published an article entitled “康業服務涉違競爭法 小型工程單一報價聯號公司 稱確保質素” (which can be translated as: “It is suspected that Hong Yip had violated the Competition Ordinance Small projects involved a single quotation from affiliated company It is claimed that this was for the purpose of ensuring quality”) (“Mingpao’s July 2014 Article”) in respect of Hong Yip’s policy of obtaining a single quotation from its affiliated company for small projects of under $5,000. Mingpao’s July 2014 Article reported, inter alia, that:
155.On 15 July 2014, Ms Tam set up a street stall in the Estate, asking the owners of the Estate to sign a petition requesting the IO to allow the owners to inspect certain financial documents of the IO. She also sent a letter dated 18 July 2014 to the IO, referring to Mingpao’s July 2014 Article, asking the IO whether Hong Yip had adopted a policy of obtaining a single quotation from its affiliated company for projects of under $5,000 and asking the IO to follow up with this matter. 156.On 18 July 2014, the IO published the 2nd Article. In the 2nd Article, the IO alleged, inter alia, that the IO’s policy was that contracts of over $2,000 would be vetted by the Chairman and committee members of the IO, that contracts of over $15,000 would be approved at the meetings of the IO and that projects of less than $5,000 was not undertaken by Hong Yip’s affiliated company alone. However, the 2nd Article did not address the issue of whether Hong Yip had adopted a policy of obtaining a single quotation from its affiliated company for small projects of less than $5,000, which, according to Mingpao’s July 2014 Article, Hong Yip had admitted. VIII. ISSUE 4: IS THE DEFENCE OF QUALIFIED PRIVILEGE DEFEATED BY MALICE? A. The law on malice 157.In Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, the Court of Final Appeal laid down a definitive ruling on the meaning of malice in the context of the qualified privilege defence. The judgment was given by Lord Reed NPJ, with whom Ma CJ, Tang and Fok PJJ and Chan NPJ agreed. 158.The Court of Final Appeal agreed (at para.16) with Lord Nicholls’ exposition in Cheng & Another v Tse Wai Chun (2013) 3 HKCFAR 339 (at 355) that “express malice is to be equated with use of a privileged occasion for some purpose other than that for which the privilege is accorded by the law”, which, as the Court of Final Appeal observed, is consistent with Lord Diplock’s analysis in Horrocks v Lowe [1975] AC 135 (at 149) that “if [the defendant] uses the occasion for some other reason he loses the protection of the privilege.” The Court of Final Appeal acknowledged (at para.20) that issues concerning the defendant’s state of mind in relation to the truth or falsity of what is communicated sometimes caused particular difficulty in practice, but emphasized that in relation to such issues, evidence bearing on the defendant’s knowledge or belief as to the truth or falsity of what is communicated is only relevant in so far as it affects the critical question of whether the defendant used the occasion for a purpose other than that for which the privilege was accorded. The Court of Final Appeal further observed (at paras.22 and 23) that 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 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” (at 150), and is a matter of inference from the circumstances. The Court of Final Appeal concluded (at para.50) that Lord Diplock’s analysis on the issue of malice is clear, and remains authoritative in the law of Hong Kong. 159.The Court of Final Appeal (at para.29) reiterated the caution given by Lord Diplock in Horrocks and Lowe (at p 150) that “judges and juries should … be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity”. B. Malice of a corporation 160.Malice is pleaded in paras.2 and 4 of the Re-Amended Reply (“the Reply”) and particulars given therein[19]. On 6 February 2018, during the course of the trial, the plaintiff filed further and better particulars of the Reply, seeking to identify Mr. Cheung as the individual who was responsible for, participated in and/or approved and/or authorised the publication of the Notices and who had the state of mind required to constitute malice at law. I allowed the plaintiff to do so on the grounds that (1) it is not in dispute that Mr. Cheung, the Chairman of the IO, participated in and/or approved and/or authorised the publication of the Notices; (2) there is no prejudice to the defendant, who has already filed a witness statement and a supplemental witness statement of Mr. Cheung and will call Mr. Cheung as a witness; (3) the plaintiff’s further and better particulars are consistent with authorities which show that where malice is alleged against a corporation it is necessary to identify a person or persons for whom the corporation is liable who participated in the publication of the words complained of and who did so with the necessary malicious motive: Webster v British Gas Services Ltd [2003] EWHC 1188, at para.30 per Tugendhat J; Akinleye v East Susses Hospitals NHS Trust at para.25 per Richard Parkes QC; ; Bray v Deutsche Bank [2008] EWHC 1263, at para.16 per Tugendhat J; Monks v Warwick District Council [2009] EWHC 959, at para.23(ii) per Sharp J; Gatley, at §28.6; and (4) the issue of whether Mr Cheung’s state of mind could be attributed to the IO is largely a question of law. 161.I also granted leave to the defendant to file a further supplemental witness statement of Mr. Cheung to deal with the further and better particulars of the Reply, which the defendant did by filing the 2nd supplemental witness statement of Mr. Cheung on 8 February 2019. 162.As to the attribution of state of mind of an individual to a company, in his seminal judgment in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 511, Lord Hoffmann provided a tripartite classification of attribution in company law: (1) primary rules of attribution, derived from company law statures and the articles of association of the company concerned; (2) “general rules of attribution which are equally available to natural person, namely, the principle of agency”; and (3) exceptional cases “… when a rule of law, either expressly or impliedly, excludes attribution on the basis of the general principles of agency and vicarious liability”. See also: Moulin Global Eyecare Trading Ltd v Commissioner of Inland Revenue (2014) 17 HKCFAR 218, at para.77 per Lord Walker NPJ. 163.In the present case, applying the ordinary principles of agency, the state of mind of Mr Cheung, the Chairman and an agent of the IO who was responsible for the publication of the Notices, could be attributed to his principal, the IO, under the “general rules of attribution” in Lord Hoffmann’s tripartite classification in Meridian. In various letters on the IO’s letterhead, such as the letters respectively dated 31 July 2013, 30 January 2014 and 26 July 2014 issued to Ms Tam, and the 3 letters dated 18 March 2014 issued to Messrs Chan, Cho and Yu, Mr Cheung identified himself with the IO and affixed his personal chop thereon. 164.It is therefore unnecessary to deal with the submission of Ms Wong that it is necessary to identify a “directing mind and will” of the IO to attribute its state of mind to the IO[20]. As Lord Hoffmann pointed out in Meridian, at 511B-C, the phrase “directing mind and will” will “often be the most appropriate description of the person designated by the relevant attribution rule, but it might be better to acknowledge that not every such rule has to be forced into the same formula.” And as the Court of Final Appeal observed in Moulin Global (at para.106(2) per Lord Walker NPJ), it might be better if the “directing mind and will” concept were to fade away as a general concept. C. Attribution of the state of mind of Mr. Cheung to the IO? 165.In the present case:
166.In these circumstances, I find that the state of mind of Mr Cheung ought to be attributed to the IO. D. The present case – Has malice been established? 167.In his closing submissions, Mr. Deng categorized malice under 4 grounds:
D.1 Falsity of the Words or recklessness as to their truth or falsity 168.I shall deal with the 1st Notice first. I shall deal each of the points in the sequence as they appeared in the 1st Notice. 169.As to Point 1, in my judgment, by reasons of the matters stated in Section VII.B.8 above, including my findings therein, there is simply no basis for Mr Cheung and the IO to allege that Ms Tam wrongly obstructed and complained about fundraising events carried out by the IO which resulted in a significant reduction of donations to help people in need, when it was the IO’s own violation of the fundraising rules that resulted in TWGH’s decision to suspend the IO from participating in TWGH’s fundraising activities for a period of 3 years. I find that the words complained of by Ms Tam relating to Point 1 were false and that Mr. Cheung and the Plaintiff knew that they were false or were reckless as to their truth and falsity. 170.Mr. Cheung and the IO’s knowledge of the falsity of the words relating to Point 1, or their recklessness as to their truth and falsity, can also properly be inferred from, inter alia, his admissions in cross-examination set out in para.119 above. 171.I reject Ms Wong’s submissions that TWGH had “changed”[21] or “revoked”[22] its decision to suspend the IO from participating in TWGH’s future fundraising events. I also reject her submission that it was “unclear” whether the IO was suspended from participating in TWGH’s future fundraising events[23]. These submissions are contradicted by the contemporaneous documents set out in Section VII.B.9 above and must be rejected. 172.As to the Point 2, in my judgment, by reasons of the matters set out in Section VII.B.11 above, including my findings therein, there is simply no basis for Mr. Cheung and the IO to allege that Ms Tam wrongly claimed credit for matters achieved by the IO and pretended that such matters were her personal achievements. As Chairman of the MC, Mr. Cheung knew or must have known that the IO had agreed to extend the free-parking time for vehicles picking up wheelchair and mobility aid users to 10 minutes upon receiving Ms Tam’s request for extension of free-parking time as conveyed to it by Pioneer. In the 1st Notice, the IO itself admitted that Pioneer had conveyed Ms Tam’s request (“當商場管理公司早前反映該議員的意見時…”). I find that the words complained of by Ms Tam relating to Point 2 were false and that Mr Cheung and the IO knew that they were false or were reckless as to their truth and falsity. 173.Mr Cheung and the IO’s knowledge of the falsity of the words relating to Point 2, or their recklessness as to their truth and falsity, can also properly be inferred from, inter alia, the IO’s notice dated 1 April 2014 containing the words set out in para.136 above, which I have found to be false, and the letter from Mr. Cheung (in his capacity as the Chairman of the IO) dated 30 January 2014, in which he never disputed Ms Tam’s statement in the first paragraph of her letter dated 6 January 2014 that the IO had agreed to extend free-parking time for vehicles picking up wheelchair and mobility aid users time to 10 minutes. 174.As to Point 3, in my judgment, by reason of the matters set out in Section VII.B.10 above, including my findings therein, whether there was a breach of the PDPO or not, there is no justification for Hong Yip to single out the 11 VIP Owners on the basis they were “more aggressive” and to disclose their personal information in the VIP Poster. I rejected Mr Cheung’s evidence that this was to ensure the safety of the more aggressive owners. When asked how the action could ensure the safety of these owners, Mr Cheung could not provide any satisfactory answer. Obviously, the purpose of the VIP Poster was to let Hong Yip’s staff to be familiar with the “more aggressive” owners and to monitor them. As Hong Yip was engaged by the IO to manage the Estate, the act of Hong Yip’s staff must have been authorized by the IO. In any event, the IO stated in its letter dated 31 July 2013 that it had the duty to remind Hong Yip’s staff to carefully handle the requests of the more aggressive owners. 175.I do not find the Working Report’s summary relating to Point 3 misleading or contrived, notwithstanding the omission to mention the Reasons. In my judgment, there is simply no basis for Mr Cheung and the IO to allege that, by her summary relating to Point 3 in the Working Report, Ms Tam wrongly incited public opinion, alienated the relationship between the IO and owners of the Estate, and interfered with the affairs of the Estate in order to achieve personal aim. I find that the words complained of by Ms Tam relating to Point 3 were false and that Mr Cheung and the IO knew them to be false or were reckless as to their truth and falsity. 176.As to the 1st issue of Point 5, in my judgment, by reason of the matters set out in Section VII.B.4 above, including my findings therein, there is no basis for Mr. Cheung and the IO to allege that Ms Tam wrongly appropriated the achievements of Mr. Choi and the previous session of the MC as her own and falsely claimed credit for the same. In respect of the past achievement of Mr. Choi, according to his flyer distributed on or about 10 October 2011, he claimed that upon years of lobbying, the HA finally agreed to install a vertical lift platform in the Shopping Centre. However, in the Working Report, Ms Tam did not mention about the vertical lift platform at all. As to the achievement of the IO, the minutes of the meeting between the IO and the HA dated 22 April 2010 show that at that meeting the HA suggested renovating the toilets in the Shopping Centre, following which the IO suggested installing ventilation system in the toilets. At that meeting, the IO’s representative (its former Chairman Mr. Lee) also suggested building a barrier-free incline in the Shopping Centre. Mr Cheung, then a member of the MC, also attended the meeting. However, in the Working Report, Ms Tam did not mention about the barrier-free incline at all. The contemporaneous documents do not show any other achievements of Mr. Choi or the IO at all. I find that the words complained of by Ms Tam relating to the 1st issue of Point 5 were false and Mr Cheung and the IO knew that they were false, or were reckless as to their truth and falsity. 177.In fact, it was the IO who wrongly claimed in the notice dated 17 January 2014 that the replacement of tiles in the Shopping Centre was a result of many years of lobbying on its part. The IO’s claim is wrong because the replacement of anti-slippery tiles at the Area was the result of lobbying by Ms Tam, not the IO. Mr Cheung and the IO knew and must have known that this claim was wrong. Under cross-examination, Mr Cheung admitted that Ms Tam was the only person who suggested to cover the Area with anti-slippery material and to replace the floor tiles, although he said that other people might have suggested before. I rejected Mr Cheung’s testimony, given for the first time in the witness box, that the IO had discussed with the HA an entire plan to renovate the interior and the exterior of the Shopping Centre. This testimony is unsupported by any contemporaneous documents and has not even been raised in his witness statement. Mr Cheung made up his evidence as he went along in the witness box. 178.I reject Ms. Wong’s submission that Ms Tam’s statement relating to the 1st issue of Point 5 in the Working Report would “only create confusion to the owners”[24]. I find that the Working Report contained an accurate description of the 1st issue of Point 5. There is also no basis for her submission[25] that Ms Tam’s statement relating to the 1st issue of Point 5 in the Working Report had “interfered with” the IO’s daily operation. 179.As to the 2nd issue of Point 5, in my judgment, by reasons of the matters set out in Section VII.B.2 above, including my findings therein, there is simply no basis for Mr Cheung and the IO to allege that Ms Tam wrongly occupied shop 104 and wrongly set up her District Councillors’ Office thereat, which forced the western doctor’s clinic to move to the 2nd floor of the Shopping Centre and caused elderly patients and other patients to suffer from further agony. It is particularly untrue for Mr Cheung and the IO to allege that Ms Tam’s use of shop 104 had “forced” the western doctor’s clinic to move to the 2/F (“西醫診所被迫遷上二樓”), because by the time Ms Tam used shop 104 as her District Councillor’s Office, the western doctor had delivered vacant possession of shop 104 to the HA for over 6 months. I found that the words complained of by Ms Tam relating to this issue were false and Mr Cheung and the IO knew that they were false, or were reckless as to their truth and falsity. 180.Mr Cheung and the IO’s knowledge of the falsity of the words relating to the 2nd issue of Point 5, or their recklessness as to their truth or falsity, can also properly be inferred from, inter alia, Mr Cheung’s admissions under cross-examination that he knew at around the time of the District Council election on 11 November 2011 that the western doctor who originally occupied shop 104 had moved out and that at the time of the 1st Notice, there was no western doctor who applied to use shop 104. 181.As to Point 6, in my judgment, by reason of the matters set out in Section VII.B.12 above, including my findings therein, there is no basis for Mr Cheung and the IO to allege that Ms Tam frequently instigated the owners and instilled wrong information to ignorant people, with the intention of disrupting the regular order of the Estate and that these acts were conducted in order to satisfy the personal desire of Ms Tam, and Ms Tam caused various individuals to be innocently dragged into matters against their wish. I find that the words complained of by Ms Tam relating to Point 6 were false, that Cheung and the IO knew that they were false or were reckless as to their truth or falsity. 182.Mr Cheung and the IO’s knowledge that the words relating to Point 6 were false, or their recklessness as to their truth or falsity, can also properly be inferred from, inter alia, the fact that Mr Cheung knew or must have known that the IO had received the signatures of not less than 5% of the owners of the Estate on or about 26 February 2013 but that in his letter dated 18 March 2014 he falsely denied that the IO had received the same. 183.The words complained of by Ms Tam in the heading, the opening paragraph and the concluding paragraph of the 1st Notice are general allegations and can be said to be conclusions arrived at from Points 1, 2, 3, 5, and 6 therein. As I have already found that Mr Cheung and the IO knew that the words relating to Points 1, 2, 3, 5 and 6 were false, or were reckless as to their truth and falsity, it follows that Mr Cheung and the IO also knew that the words complained of by Ms Tam in the heading, the opening paragraph and the concluding paragraph of the 1st Notice were false, or were reckless as to their truth and falsity. 184.In conclusion, I find that in publishing the 1st Words, Mr Cheung and the IO knew that they were false, or were reckless as their truth and falsity. They were thus guilty of malice on this ground. 185.The 2nd Words are set out in para.9 above. They are all general allegations and are substantially similar to the general allegations contained in the heading, the opening paragraph and the concluding paragraph of the 1st Notice. As I have found that Mr Cheung and the IO knew that the words complained of by Ms Tam in the heading, the opening paragraph and the concluding paragraph of the 1st Notice were false, or were reckless as to their truth and falsity, it follows that they also knew that the 2nd Words were false, or were reckless as to their truth or falsity. They are thus guilty of malice on this ground. D.2 Improper motive 186.A defendant who publishes defamatory statements is guilty of malice if his sole or dominant intent is to harm the claimant: Gatley, at para.17.5. 187.I have already found that since at least the time she won the 2011 District Council election against Mr. Choi, Mr Cheung and the IO were unfriendly toward Ms Tam, had treated Ms Tam differently and unfavourably compared with Mr. Choi and Mr. Wu and had targeted her[26], that Mr Cheung waged a personal vendetta and/or had harboured an ill feeling or grudge against Ms Tam[27] and that there was a prior personal altercation between Mr Cheung and Ms Tam[28]. I have found that the allegations in the notice dated 23 May 2013 and 20 September 2013 were grossly exaggerated and revealed the grudges and animosity harboured by the IO and Mr Cheung against Ms Tam[29]. I have also found that the words contained in the notices issued by the IO dated 5 March 2013[30], 9 March 2013[31] and 1 April 2014[32] were false and defamatory of Ms Tam and revealed the grudges and animosity harboured by Mr Cheung and/or the IO against Ms Tam. 188.Having considered all the circumstances of the case, I find that in issuing the Notices, Mr. Cheung and the IO’s sole or dominant motive was to harm Ms Tam. They are thus guilty of malice on this ground. 189.From my findings in Section VIII.D.1 above, I also drew the inference that Mr. Cheung and the IO did not publish the Notices for a proper purpose. As pointed out by the Court of Final Appeal in Jonathan Lu (at paras.22 and 23 per Lord Reed), normally, that is the only inference which can reasonably be drawn from the defendant’s knowledge that the matter was false when he communicated it, or his recklessness as to whether it was true or false.
190.Other defamatory words published by the defendant about the plaintiff can be relied upon as evidence of malice, even though they are not the subject of the action: Gatley, §32.39; Barrett v Long (1858) 3 HLC 395; 10 ER 154 per Parke B at 414. 191.In the present case, apart from the Notices, the IO had issued many other notices making false and defamatory allegations against Ms Tam. I refer to my findings in paras.90 to 92 and 139 above relating to, respectively, the notices issued by the IO dated 5 March 2013, 9 March 2013 and 1 April 2014. 192.I find that the IO’s systematic practice of making false and defamatory allegations about Ms Tam, as shown by the notices issued by the IO set out above, is convincing evidence that Mr Cheung and the IO were actuated by malice in publishing the Notices. D.4 Language of the words 193.The language used in a libel, though under other circumstances justifiable, may be so much too violent for the occasion and circumstance as to form strong evidence of malice, and that an inference of actual malice may be drawn from its use: Spill v Maule (1869) L.R. 4 Ex. 232 at 235 per Cockburn CJ; Edmondson v Birch & Co Ltd [1907] 1 KB 371 at 381, Collins MR;Gatley, para.32.40. In Turner v MGM Pictures, Ltd [1950] 1 All ER 449, at 455E-F, Lord Porter observed that “grossly exaggerated language” may be evidence of malice. 194.In the present case, I find that the words used in the Notices, such as “粗暴誣衊”, “搞風搞雨”, “斷章取義”, “無事生非”, “製造混亂”, “煽動民意”, “離間”, “乘機干預”, “抽水冒功”, “刻意破壞”, “謬論”, “是非之地”, “惡勢力”, “粗暴干預”, “搬弄是非”, “毫無根據”, “故意抹黑”, “無風起浪”, “不擇手段”, are grossly exaggerated and are strong evidence of malice. 195.In conclusion, by reason of the matters aforesaid, I find that the defence of common interest qualified privilege is defeated by malice.
A. Applicable legal principles 196.In Mak Shiu Tong v Yue Kwok Ying & Anor, at §24, Ribeiro PJ cited with approval the following observation of Nicholls LJ in Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183 at.p.189:-
See also: Lam Yi Lai v Ip Kwok Chung & Anor., CACV 194/2009 (unrep., 12.3.2010), at §47 per Kwan JA. 197.The necessary ingredients of the defence of fair comment were set out by Lord Nicholls in Cheng and Another v Tse Wai Chun (2000) 3 HKCFAR 339 at 347C-J (see also Gatley, §12.2):
198.The ultimate determinant of whether the words are comment or fact is how they would strike the ordinary, reasonable reader. All the circumstances are to be taken into account, and it must be remembered that the ordinary reasonable reader does not parse and pore over the published matter as the lawyers are inclined to do at trial. In determining this question, one takes into account “all the circumstances in which the publication was made, include the manner of speaking, the context, the tone of voice, the relationship between the material relied upon and the alleged comment, and the surrounding circumstances.” The court should approach this in accordance with common sense and first impression: Centa-City Index Co Ltd v Hong Kong Economic Journal Co & Anor [2016] 4 HKC 53, at para.34 per Kwan JA. 199.The burden of establishing that a comment falls within the above limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence: Cheng (supra) at 348Aper Lord Nicholls. B. The present case 200.In the present case, although para.11 of the Defence pleaded that the Words were “fair comment made in good faith and without malice upon the facts hereinafter pleaded, and which are matters of public interest and/or common interest for the management of the Estate”, the IO has completely failed to spell out what is the comment which the defendant will seek to say attracts the fair comment defence. This failure is fatal to the defence of fair comment and the only alternative open to the Court is to dismiss it, which I now do. 201.In any event, even if the defence of fair comment is available to the IO, by reason of my findings set out in Section VIII above, Mr. Cheung and the IO did not have honest belief in the comments they made, and the defence of fair comment is also defeated by malice. X. IS THE DEFENCE OF REPLY TO ATTACK PRICILEGE MADE OUT? IF THE ANSWER IS IN THE AFFIRMATIVE, IS IT DEFEATED BY MALICE? 202.As I have already found that the common interest privilege defence is defeated by malice, it is strictly speaking not necessary for me to deal with reply to attack privilege, which even if established must similarly be defeated by malice. For completeness, I shall deal with it briefly below. A. Applicable legal principles 203.The “reply to attack” form of qualified privilege is described in Gatley as follows (at para.14.51):
204.In Tung Lo Court (IO) v Tsui Wai Yip [2015] 4 HKLRD 397, the Court of Appeal emphasized (at para.55 per Poon J (as he then was), giving the judgment of the Court of Appeal comprising also Yuen and Chu JJA) that the reply must be “reasonable, proportionate and relevant.” B. The present case 205.Applying the law to the facts of the present case, I find that the IO’s reply in the 1st Notice to each of the points raised by Ms Tam in the Working Report is not protected by reply to attack privilege because the IO’s reply was unreasonable and/or disproportionate and/or irrelevant 206.First, in relation to Point 1, I have already found as a fact in Section VII.B.8 above that the TWGH had as early as 18 March 2013 decided to suspend the IO from participating in TWGH’s fundraising events for a period of 3 years. The fact of the suspension was known to Mr Cheung and the IO. In the Working Report, Ms Tam reproduced the Mingpao’s Jan 2014 Article, the letter from TWGH to Messrs Li and Wong dated 3 April 2013 and the notice issued by the IO dated 3 April 2013 and commented on this issue. The IO’s reply that Ms Tam wrongly obstructed and complained about fundraising activities carried out by the IO which resulted in a significant reduction of donations to help people in need was unreasonable and/or disproportionate and/or irrelevant. This is particularly so when Mr Cheung admitted under cross-examination that the IO had applied to participate in TWGH’s 2013 fundraising event but did not receive any feedback from TWGH. 207.Second,in relation to Point 2, I have already found as a fact in Section VII.B.11 above that as a result of Ms Tam’s request contained in her letter dated 19 September 2013 for an extension of free-parking time to 15 minutes, the IO agreed to extend free-parking time for vehicles picking up wheelchair and mobility aid users to 10 minutes. In the Working Report, Ms Lam stated that the IO’s implication in its notice dated 1 April 2014 that she falsely claimed credit for something she had not done was insulting to her and her political personality. The IO’s reply in the 1st Notice that Ms Lam wrongly claimed credit for matters achieved by the IO and pretended that such matters were her personal achievements was unreasonable and/or disproportionate and/or irrelevant. 208.Third, in relation to Point 3, I have found in Section VII.B.10. above that whether there was a breach of the PDPO or not, there is no justification for Hong Yip to single out the 11 VIP Owners on the basis that they were “more aggressive” and to disclose their personal information on the VIP Poster. In the Working Report, Ms Tam reported on the VIP Poster, the complaint to Sun Hung Kai and the Privacy Commissioner. Ms Tam also reproduced Mingpao’s February 2014 Article, her letter to Sun Hung Kai dated 16 July 2013 and the IO’s letter dated 31 July 2013. The IO’s reply in the 1st Notice that by her summary relating to Point 3 in the Working Report, Ms Tam wrongly incited public opinion, alienated the relationship between the IO and owners of the Estate, and interfered with the affairs of the Estate in order to achieve personal aim was unreasonable and/or disproportionate and/or irrelevant. 209.Fourth, as to the 1st issue of Point 5, I have found as a fact in section VII.B.4 above that the replacement with anti-slippery floor tiles on the Area was the result of lobbying by Ms Tam, not Mr. Choi or the IO, and that it was wrong for the IO to claim in its notice dated 17 January 2014 that the replacement with anti-slippery tiles at the Area was the result of many years of lobbing on the part of the IO. In the Working Report, Ms Tam stated that she had since 7 December 2012 suggested the HA to cover the Area with anti-slippery material, that the HA agreed to cover the Area with anti-slippery tiles and that the project was completed in January 2014. Ms Tam reproduced HA’s letter to her dated 26 March 2014 on the Working Report. The IO’s reply in the 1st Notice that Ms Tam wrongly appropriated the achievements of Mr. Choi and the previous session of the MC as her own and falsely claimed credit for the same was unreasonable and/or disproportionate and/or irrelevant. 210.Fifth, as to the 2nd issue of Point 5, I have also found as a fact in Section VII.B.2 above that the western doctor had vacated shop 104 as early as 26 July 2011, that Ms Tam had the consent of the HA to use shop 104 as a temporary office since around early February 2012 and that on or about 2 March 2012 the HA also consented to Ms Tam’s request to use shop 104 as a permanent office. In the Working Report, Ms Tam did not mention about the western doctor’s clinic at all. The IO’s allegation in the 1st Notice that Ms Tam wrongly occupied shop 104 and wrongly set up her District Councillors’ Office thereat, which forced the western doctor’s clinic to move to the 2nd floor of the Shopping Centre and caused elderly patients and other patients to suffer from further agony, was not a reply to the Working Report at all and was in any event unreasonable, disproportionate and irrelevant. 211.Sixth, as to Point 6, in the Working Report, Ms Tam referred to the letter dated 18 March 2014 in which the IO stated that it had not received the signatures of not less than 5% of the owners of the Estate, but the then Chairman of the IO had by his letter dated 26 February 2013 acknowledged receipt of the same. She further stated that the IO was still unwilling to allow the owners to inspect the financial documents, but instead accused the owners of taking advantage of a confused situation (“渾水摸魚”) and deceiving others and deceiving oneself (“自欺欺人”), which was insulting to the owners. The IO’s reply in the 1st Notice that Ms Tam frequently instigated the owners and instilled wrong information to ignorant people, with the intention of disrupting the regular order of the Estate and that these acts were conducted in order to satisfy the personal desire of the plaintiff, and the plaintiff caused various individuals to be innocently dragged into matters against their wish, was unreasonable and/or disproportionate and/or irrelevant. 212.Finally, for completeness, I also find that the words complained of by Ms Tam in the heading, the opening paragraph and the concluding paragraph of the 1st Notice and the 2nd Words were either not a reply to the Working Report or alternatively, if they were a reply to the Working Report, they were unreasonable and/or disproportionate and/or irrelevant. 213.In any event, as noted above, even if the IO can establish reply to attack privilege, such defence is defeated by malice, and I refer to my findings in Section VIII above. XI. QUANTUM A. General damages 214.In Oriental Daily Publisher Ltd & Anor v Ming Po Holdings Ltd (2012) 15 HKCFAR 299, Ribeiro PJ observed (at para.35):-
215.In Chu Siu Kuk Yuen v Apple Daily Ltd & Ors [2002] 1 HKLRD 1, at 14B-D, Yuen J (as she then was) held that general compensatory damages serve three functions: they are to console the plaintiff for hurt and distress suffered, to repair the harm that has been done to his reputation (including his business reputation) and to vindicate his reputation. B. Aggravated damages 216.In Sutcliffe v Pressdram [1991] 1 QB 153, Nourse LJ (at 184) set out various factors which the Court may take into account in awarding aggravated damages to a Plaintiff:
217.Gatley said at para.9.18 that:
C. Relevant precedents 218.In Lee Ching (supra), theplaintiffs were experienced and dedicated volunteer members of a charitable organization that had a membership of about 200 members. The defendant, who was the chairman of the board of governors, issued a letter to all members accusing the plaintiffs of failure to perform their duties as governors, spreading rumours and malicious slander and wrongful accusations against the defendant that threatened the organization's coherence and quality of service and affected the defendant's personal health, and also engaging in inappropriate and illegal tricks to seize power. Poon J (as he then was) awarded general damages of $200,000 to each plaintiff. The learned Judge also awarded aggravated damages of $200,000 to each plaintiff due to the defendant’s malice in publishing the defamatory words and the defendant’s refusal to offer an apology to the plaintiffs when she was asked to do so by the letter before action. 219.In周啓邦律師事務所訴何秀武 (unreported, HCA 2360/2007, 4 October 2010), the defendant was a District Councillor. The 1st plaintiff was a partner of a solicitors firm, a member of the Liberal Party, and a Legislative Councillor who supported the defendant’s opponent in the District Council election. The defendant’s election team distributed several tens to a hundred election leaflets accusing the 1st plaintiff of misuse of his public office and unsuitability for the office. DHCJ Auyeung (as she then was) awarded the 1st plaintiff $100,000 as general damages and $20,000 as aggravated damages. 220.In Mok Kam Kwai v Lam Mo Fat (unreported, HCA 1868/2010, 6 March 2014), The defendant displayed banners at conspicuous spots of Pai Tau Village, Shatin which alleged the plaintiff as being, inter alia, incompetent, unfit to hold his office as the chairman of the rural committee and had “sold out” (or betrayed) those he represented and acted in the interest of a party whose interests conflicted with those which the plaintiff represented. General damages of $400,000 were awarded. 221.In Lo Sam Shing v Li Fong (unreported, HCA 1803/2011, 14 March 2014), the defendant sent a letter to about 25 recipients which alleged the plaintiff, a candidate for the Tai Po District Council election, as being dishonest and failed to keep his promise to the defendant, guilty of undue delay in his informing the defendant of the decision of the government departments about the defendant’s complaint, incompetent and failing to discharge his duty as a District Councillor, not only failing to uphold the interests of the people in the Tai Po District, but was only interested in fame and glory, thereby causing harm to his constituency and “messing” up its business. To J awarded general damages of $200,000. The learned Judge also awarded aggravated damages of $100,000, observing (at para.157) that the defendant knew the allegations were false, particularly as he concocted them, and hence the defendant must have known his defence of justification, fair comment and qualified privilege is bound to fail. Yet, the defendant chose to contest the action to its very end, thereby unnecessarily increasing the anxiety caused to the plaintiff. 222.In Chan Iu Seng v Ko Choi Hin & Others(unreported, HCA 2901 & 2935/2004, 28 January 2010), which is not cited by counsel, the plaintiffs and the defendants are allmembers of a clan association. In a circularapparently sent or circulated to all members of the association (about6,000), the defendants made unpleasant and serious attacks againstthe plaintiffs' integrity, honesty and propriety in conduct, includingconduct in the affairs of the association. The court awarded general damages of $300,000. D. The present case 223.Although I have set out in Section XI.C above the relevant precedents, I bear in mind what Le Pichon J (as she then was) said in Hung Yuen Chan Robert v Hongkong Standard Newspapers Ltd [1996] 4 HKC 519 at 536G-H:
224.In the present case, in considering the award of general damages, I bear in mind that Ms Tam is a District Councillor who had served the Lung Sing Constituency since at least 2012, that the Words were serious and attacked her integrity, honesty and propriety in her conduct as a District Councillor. The Notices were published to all the owners of the Estate, which consists of 6 residential blocks (A to F) with about 3,340 units in total, and so the circulation was wide. Having considered all the circumstances, I agree with Mr Deng that the award in the present case should be on par with Lee Ching and award general damages of $200,000 for each of the Notices. 225.As I have found that the IO published the Notices with malice, it is only right to award aggravated damages. The fact that the IO did not offer an apology to Ms Tam when it was asked to do so by the letter before action from Ms Tam’s solicitors dated 16 September 2014 is, in the circumstances of the present case, also a relevant factor that supports an award of aggravated damages. In fact, in the reply letter from the IO and Mr Cheung’s solicitors dated 22 September 2012, not only did the IO and Mr Cheung not offer any apology to Ms Tam, but they also threatened to institute defamation proceedings against Ms Tam in relation to 2 banners displayed by her at the Estate from about 1 August to September 2014, but in the end no defamation proceedings had been instituted by the IO against Ms Tam and no counterclaim had been instituted against Ms Tam in this action. This also supports an award of aggravated damages. 226.Having considered all the circumstances, I also agree with Mr Deng that the award of aggravated damages in the present case should be on par with Lee Ching and shall award aggravated damages of $200,000 for each of the Notices. XII. ORDERS 227.I will enter judgment against the defendant for the plaintiff in the sum of $800,000 with interest at the judgment rate from the date of the writ until payment. 228.I will grant an injunction restraining the defendant, whether by itself or by or through its member(s), servant(s) or agents(s) whosoever where appropriate, from howsoever publishing and/or causing the publication of and/or participating in the publication of the words complained of by the plaintiff or other similar words defamatory of and concerning the plaintiff. 229.Finally, costs should follow the event. I will make an order nisi that the defendant do pay the plaintiff costs of the action, including any costs reserved, to be taxed if not agreed, with certificate for one counsel, save and except that the costs of the plaintiff’s application for amending the SOC by Summons dated 22 January 2018 must be paid by the plaintiff to the defendant, to be taxed if not agreed, with certificate of counsel. The plaintiff’s summons was returnable before me on the first day of trial. After hearing submissions, I dismissed the plaintiff’s summons on the grounds of, inter alia, delay and lack of explanation for the delay. As it turned out, the dismissal of the plaintiff’s summons has no impact on the outcome of the present case. 230.Last but not least, I thank counsel for their assistance.
Mr Earl Deng leading Ms Tara Liao, instructed by J C C Cheung & Co, for the plaintiff Ms Emma Wong, instructed by Chung & Kwan, for the defendant [1] In the SOC, the plaintiff made no complaint about the 4th paragraph of the 1st Notice. [2] In the SOC, the plaintiff made no complaint about the sub-headings of the 1st Notice. [3] I will set out these meanings in paras.21 and 22 below. [4] In paras.5 and 9 of the Defence, the defendant admitted that the 1st Words and the 2nd Words were understood to refer to the plaintiff. [5] These have been slightly modified to reflect the terminology used in this judgment, but the modifications do not affect the meanings of the Words pleaded by the plaintiff. [6] See: §155, defendant’s closing submissions. [7] The IO also relies on reply to attack privilege. I will deal with this issue after dealing with the issue of malice. [8] See: para.23, the IO’s closing submissions. [9] Mr. Cheung admitted that the captions of the photos, which contained allegations that Ms Tam was in violation of the Estate’s election rules, were prepared for the purpose of litigation. Little value could be placed on them. [10] The member concerned was Mr Cheung. I will discuss this incident in Section VII.B.6 below. [11] See: para.55 of the IO’s closing submissions. [12] See: para.56 of the IO’s closing submissions. [13] See para.95 below. [14] Again, the captions to the photos of the 2013 EGM produced by the IO, which alleged that “譚香文支持激進業主滋擾大會進行” (which can be translated as: “Tam Heung Man supported aggressive owners to disrupt the progress of the owners’ meeting”) were prepared for the purpose of litigation. Again, little value could be placed on them. [15] In both the Defence and Mr Cheung’s witness statement, the allegation is that the security guard was injured by “owners” of the Estate. In §5.36(5) of his closing submissions, Mr. Deng accepted that the owner concerned was Mr Lam. [16] See para.86 above. [17]Paragraph 1A of Schedule 6 to the Building Management Ordinance (Cap.344) (“the BMO”) provides:
[18] As noted, the plaintiff made no complaint of the 4th paragraph in the 1st Notice. [19] The Amended Reply was re-amended on 6 February 2018 but the re-amendments are immaterial to the issue of malice. [20] Ms Wong relied on Next Magazine Publishing Ltd & Anor v Ma Ching Fat (2003) 6 HKCFAR 63 at para.46. [21] See: defendant’s closing submissions, para.85. [22] See: defendant’s closing submissions, para.90. [23] See: defendant’s closing submissions, para.94. [24] See: defendant’s closing submission, para.103. [25] See: defendant’s closing submission, para.103. [26] See my findings in paras.49 and 76 above. [27] See my findings in para.57 above. [28] See my findings in para.82 above. [29] See my findings in para.101 and 125 above. [30] See my findings in paras.90 to 92 above. [31] See my findings in paras.90 to 92 above. [32] See my findings in para.139 above. [33] Lord Nicholls’ fourth proposition has been rewritten by Lord Phillips PSC in Joseph v Spiller [2011] 1 AC 852 at §102 to read “… the comment has to identify, at least in general terms, the matters on which it is based.” | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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