Go Fun Group Holdings Ltd and Another v. Sun Chengye and Another

HCA 753/2019

[2019] HKCFI 2308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 753 OF 2019

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Before: Hon K Yeung J in Chambers

Date of Hearing: 11 September 2019

Date of Decision: 11 September 2019

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D E C I S I O N

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1.This is the application of the plaintiffs (“Ps”) by summons dated 23 July 2019 for judgment against both defendants (“Ds”) in default of both Acknowledgement of Service and Defence.

2.The Writ was taken out by Ps on 30 April 2019.  According to Ps’ Statement of Claim, both of them are Hong Kong companies.  P1 carries on the business of investment, whilst P2 carries on that of food and beverages.  It is their case that D1 and D2, using aliases, on various dates in March and April 2019 posted various statements in a WeChat group “containing allegations of false, improper, wrongful and defamatory remarks against P1 and/or P2”. They seek against both defendants:

(a) damages, including aggravated damages (§1 of the prayer);

(b) “a permanent injunction to restrain D1 and D2 from publishing in any form, in any medium, the same or similar or related statements of or concerning P1 and/or P2, their servants, or agents and/or P1’s and P2’s group and/or affiliated companies” (§2 of the prayer); and

(c) costs.

The RHC pursuant to which the Summons was taken out

3.On the face of the Summons, it was taken out pursuant to Order 13 rule 2. Given the fact that an injunction is being sought, that is clearly the wrong Order.  The correct one should be Order 19 rule 7.

4.In this regard, I accept the submissions of Ms Wong, counsel for Ps, that if I am otherwise satisfied that the judgment may be granted under the correct Order, the fact that the Summons was taken out under the wrong Order ought not to be an unsurmountable difficulty.  But as I am to explain, I am not satisfied that the judgment sought should be granted.

Service of the Writ

5.Given, according to Ps’ pleaded case, the use of aliases by Ds, the proof of their identities and address for service are important.

6.Ps seek to prove service of the Writ and the Statement of Claim by the affirmations of Chui Wai Yiu (“Chui”) dated 24 May 2019 (“Chui#1”) and 17 July 2019 (“Chui#2”).

7.In Chui#1, Chui (at §2) said that he inserted the Writ (and other documents required to be served) into the letter box of both Ds’ address.  He proceeded to state what that address was (the “said Address”).  Then, he asserted at §3 that:

“ The [said Address] is the usual or last known address of [D1] and [D2].”

8.In Chui #2, Chui stated that one of his employer’s businesses is the provision of private investigation, that his employer was instructed by Ps to trace the identities of the senders of the messages pleaded in the Statement of Claim and their whereabouts, and that he was assigned by his employer to organize and conduct the investigation for Ps.  He said at §§6 and 7 that:

“ 6. The outcome of the investigation shows that [Ds] were the sender of the respective messages as pleaded in the Statement of Claim. Their identities were initially traced with reference to their mobile telephone numbers as registered with WeChat through which the said messages were sent / uploaded in the Platform. Their identities were ascertained with reference to information such as those contained in the register of members of [Ps] and its group companies.

7. The addresses of [Ds] (for service of the Writ of this Action) were eventually ascertained by the surveillance activities that I organized.”

9.I note that particulars of the “information such as those contained in the register of members of [Ps] and its group companies” (mentioned in §6 of Chui#2) have not been revealed.  More importantly, particulars of “the surveillance activities” (mentioned in §7 of Chui#2) have also not been revealed.  It should further be noted that the alleged “surveillance activities” were not said to have been conducted by Chui, but only “organized ” by him.  In the absence of such particulars, and even assuming that D1 and D2 had somehow associated with the said Address, I have nothing from which any inference can be drawn that the said Address was Ds’ “usual or last known” address.

10.I am not satisfied on the evidence that due service of the Writ had been effected.

The terms of the Injunction sought vague

11.I have set out above the terms of the Injunction sought. The terms are vague.  What are “the same or similar or related statements of or concerning…” Same as, or similar to what?  Who is “P1’s and P2’s group”? And who are their “affiliated companies”.

12.Injunctions are not to be lightly granted.  This is trite.  Their effects are coercive, and their breaches can result in contempt.  Their terms should be carefully and specifically drafted. 

13.Given its vague terms as presently drafted, I am in any event not prepared to grant the Injunction sought.

Conclusion and disposition

14.For the above reasons, I refuse the application.  I make no order as to costs.   

Ms Wong Lok Yu, instructed by Raymond Chu & Co,  for the 1^st and 2^nd Plaintiffs

The 1^st and 2^nd Defendants were not represented and did not appear