Yu Sau Ning Homer v. Wong Wan Keung and Others
Read the full judgment text of DCCJ 313/2016 on BabelCite. This District Court judgment was delivered on 17 March 2020.
1. This is the trial of the plaintiff’s claim for libel arising from two letters. The first letter was dated 20 November 2015, issued by the 1 st to 4 th defendants and a Cheung Chi Wan (transliteration), and addressed to the owners of Yue Cheung Centre (裕昌中心) in Fotan, New Territories (“the Building”). It was entitled “委員剖白書”. The second letter was dated 10 December 2015 and issued by the 2 nd defendant to the owners. It was entitled “裕昌當委員。人身欠安全”. I shall refer to them as “the first lette
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DCCJ 313/2016 [2020] HKDC 40 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 313 OF 2016 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ INTRODUCTION 1.This is the trial of the plaintiff’s claim for libel arising from two letters. The first letter was dated 20 November 2015, issued by the 1st to 4th defendants and a Cheung Chi Wan (transliteration), and addressed to the owners of Yue Cheung Centre (裕昌中心) in Fotan, New Territories (“the Building”). It was entitled “委員剖白書”. The second letter was dated 10 December 2015 and issued by the 2nd defendant to the owners. It was entitled “裕昌當委員。人身欠安全”. I shall refer to them as “the first letter” and “the second letter” below. 2.Yue Cheung Centre is an industrial building. It is 18-storey high and has over 250 units and about 30 parking spaces. There is a notice board on each floor. 3.When the first and second letters were issued, the management committee of the incorporated owners of the Building (“the IO”) was coming to the end of its 14th term. 4.The parties in this action were all members of its management committee of the 13th and 14th term:-
5.The election of the management committee for the 15th term was scheduled to take place on 25 November 2015 (“the Original Owners’ Meeting”). The plaintiff sought re-election as chairman. The 1st defendant was the only other candidate running for the same position. The election did not take place on that day and the Original Owners’ Meeting was adjourned to 15 December 2015 (“the Adjourned Owners’ Meeting”). 6.The first letter was issued just five days before the Original Owners’ Meeting. Among other things, it highlighted a number of issues concerning the past management of the Building. It stated that the majority of the former and existing members of the management committee did not support the plaintiff but instead supported the 1st defendant to run for chairman. It urged the owners to take part in the upcoming election. The second letter was issued just five days before the Adjourned Owners’ Meeting. The 2nd defendant made a number of allegations concerning the Original Owners’ Meeting and referred to a warning letter issued to him by the plaintiff’s solicitors. He urged the owners to actively participate in the Adjourned Owners’ Meeting, kick the chairman, who was not up to the job, out from the IO and elect a chairman who genuinely acted in the interest of the IO. 7.In the end, the 1st defendant was elected as chairman of the management committee of the 15th term at the general election held on 26 January 2016. The 2nd, 3rd and 4th defendants were elected as members. The plaintiff had chosen not to run. 8.The plaintiff contends that some of the words appearing in the first and second letters amounted to libel. The defendants deny liability. Their primary defences are qualified privilege and fair comment. Although pleaded, the defence of justification was abandoned in the defendants’ opening submissions. The plaintiff argues that the defences must fail. He seeks to establish malice on the part of the defendants. 9.The parties’ cases raise an extensive range of factual disputes which concern, first, the management of the Building while the plaintiff was the chairman in the 13th and 14th term of the management committee; and, second, the incidents which took place at the Original Owners’ Meeting and afterwards. These disputes, spanning over a period from 2011 to early 2016, need to be resolved primarily for the purpose of determining the issue of malice. 10.In essence, it is the plaintiff’s case that the words were untrue, and the defendants did not believe in the truth of the words in the first and second letters or were reckless as to their truth. Further, the plaintiff says that in the course of these proceedings, the defendants have been making false allegations concerning him, thereby displaying overt hostility towards him. This goes to support malice on their part. Hence, the truth or falsity of these allegations and the defendants’ subjective belief in them will have to be adjudicated upon. 11.This case features a number of contemporaneous documents. They include, most notably, minutes of the meetings held by the management committee in its 13th and 14th term. They concern the various projects carried out, and management issues discussed, by the IO which were referred to in the first letter. They are therefore relevant to the factual disputes concerning the management of the Building and were extensively referred to in cross-examination. There were about eight meetings held in the 13th term and about nine in the 14th term. In this judgment, I shall refer to any such meeting by its order, the term in which it was held and its date, eg, the 4th meeting in the 13th term held on 16 March 2012. 12.Apart from the parties, the evidence also features other members of the management committee and the staff of the management office. They are:-
13.At the trial, the plaintiff testified and called Tsang and Ting as his witnesses. The four defendants gave evidence. In addition, they called Ng and Wan to testify. 14.Just to complete the dramatis personae, the plaintiff was the majority shareholder holding 80% of the shares in a company called Season Yield Investment Ltd. The company owned a number of units on the 13th floor of the Building. The evidence also features another company of the plaintiff called Youthful Technology International Ltd. 15.It would be convenient to set out at the outset the content of the first and second letters and the meanings of the allegedly defamatory words, as pleaded by the plaintiff. THE FIRST AND SECOND LETTERS 16.The first letter read as follows (underline added):-
17.The plaintiff says that the underlined words are highly defamatory of him (“the first words”). He pleads that they bore the following meanings:-
18.The second letter read as follows (underline added):-
19.The plaintiff says that the underlined words are highly defamatory of him (“the second words”). He pleads that they bore the following meanings:-
THE PLAINTIFF’S CASE 20.In addition to his role as the chairman of the IO, the plaintiff has been a successful businessman and has nearly 40 years of experience in the wholesale and retail sale of cosmetics and perfumery, household products and information technology products. He is the chief executive officer of a group of companies comprising Cheong Hing Store Ltd, Cheong Hing VinSac and Youthful Technology. He is actively involved in community services in Hong Kong and China and holds a number of titles with industry bodies, public bodies and political organisations. 21.In June 2011, the plaintiff was elected as chairman of the 13th term of the management committee without any opposition. He was re-elected as the chairman of the 14th term in August 2013, again unchallenged. 22.The plaintiff attended all the meetings of the management committee in the 13th and 14th term. The minutes of these meetings were prepared and drafted by Tsang, reviewed by the secretary and finally signed by the plaintiff. 23.In cross-examination, the plaintiff described his own management style as “management through others”. He would chair the management committee meetings, follow the agenda and control the time. He would first ascertain whether the proposed motions could be passed unanimously. If not, he would not put up the motion for voting. Throughout these two terms, none of the defendants or Ng had expressed any dissatisfaction or made any complaint to the plaintiff before the general election of the 15th term. Publication 24.Copies of the first letter were inserted into the letterboxes of the owners of the Building except the units owned by Season Yield. 25.Copies of the second letter were inserted into the letterboxes of the owners of the Building, again, except the units owned by Season Yield. Copies were also posted on all the notice boards of the Building and had remained there until one or two days after the general election held on 26 January 2016. The first and second words 26.The plaintiff’s case is that the first and second words were defamatory of him and were untrue and, further, that the defendants either did not honestly believe in them or were reckless as to whether they were true or false. 27.It is necessary to look at each of the projects and incidents referred to in the first and second letters, and also the allegations made by the defendants in this action. They fall within four broad categories:-
28.Item (a), in turn, covers the following projects or issues:-
29.As regards the management of the Building, the crux of the plaintiff’s case is that the allegations made in the first letter were untrue and that is amply demonstrated by the minutes of the meetings of the management committee. Broadly speaking, the defendants alleged that the plaintiff’s management of the Building was seriously deficient and he did not care about the efficiency and benefits of the various projects but nonetheless had caused them to be carried out. The plaintiff says that the defendants’ allegations are contradicted by the discussions and resolutions recorded in the minutes. The truth is that the Building is an old one and works needed to be done to improve its facilities, such as the lifts. Resolutions were passed by the management committee approving these projects. Each committee member had a responsibility to understand the projects and had the right to voice out different opinions. At the time of the meetings, however, no one raised any objection to him. These complaints were only made afterwards. Lift improvement 30.In the first letter, the 1st to 4th defendants wrote, “升降機，一擲伍拾多萬元更改裝備（未経業主授權，違反條例第344章）”. 31.The plaintiff says that the above allegation that the plaintiff had caused the IO to incur more than $500,000 on the lift improvement project was false and the defendants either did not honestly believe in the allegation or were reckless as to its truth. The allegation was false for a number of reasons. 32.First, the plaintiff did not cause the IO to incur the expenditure. The expenditure was approved by the management committee in its 13th term. The approval was documented in the minutes. 33.At the 4th meeting of the 13th term held on 16 March 2012, the lift improvement project was discussed. The minutes show that the plaintiff, the 1st, 3rd and 4th defendants were present. Para (二)(10) recorded that an outline was given by the lift company called “好歷香港升降機有限公司” (“Holake”) on the proposed equipment to be added to the lifts and the government’s “Energy Efficiency Projects” subsidy (“能源效益項目”) and the deliberation of the management committee. The latter included a discussion of the estimated costs of over $500,000, the government subsidy of half of the costs and the savings that the proposed equipment could be expected to generate. The management committee unanimously resolved to apply for the government subsidy. I reproduce an extract of para (二)(10) below:-
34.At the 8th meeting of the 13th term held on 8 January 2013, the project was brought up for discussion. The minutes show that the plaintiff, the 2nd, 3rd and 4th defendants were present. Para (二) recorded the progress made so far, including the successful application of the government subsidy and the tendering process. The management committee unanimously resolved that the project would be carried out by Holake who was one of the five invitees for the tender and had tendered the lowest bid of $510,000. The management committee proposed that a briefing session be convened to inform the owners. I reproduce an extract of para (二) below:-
35.In light of the above, the plaintiff contends that it was the management committee who resolved to carry out the lift improvement project and that it was not him who caused the expenditure to be incurred. At the time of the first letter, the defendants knew that to be the case since all of them had attended at least one of the above two meetings and they voted in favour of the resolutions. 36.Secondly, the IO did not incur the whole costs of the project in the sum of about $500,000, as the first letter would appear to suggest. As a matter of fact, half of the costs were reimbursed by the government under the “Energy Efficiency Projects” subsidy. 37.The government’s approval of the subsidy was documented in a letter dated 26 September 2012 sent to the IO by the Environment and Conservation fund. 38.Furthermore, the IO had received the subsidy in the sum of $229,500 by 31 March 2015. This is supported by the following documentary evidence:-
39.At the time of the first letter, the defendants should have been aware of the application for the subsidy. Further, they either knew that the subsidy had indeed been received by the IO or did not care whether that was the case or not. Nonetheless, they proceeded to say in the first letter “一擲伍拾多萬元更改裝備”, without mentioning the government subsidy at all. Under cross-examination, the defendants described their knowledge (or the lack of it) at that time about the receipt of the subsidy money as follows:-
40.Thirdly, the project has led to significant benefits to the Building. The benefits included reduced electricity expenses, reduced fire risk, improved stability and safety of the lifts which now balance with the floor level and reduced maintenance costs. Yet, the defendants omitted to mention any of these in the first letter. 41.Fourthly, the defendants never complained about the project in any of the meetings of the management committee. This is, the plaintiff argues, highly indicative of the fact that the defendants had never before had any problem with it. They raised their complaint about the lift improvement project for the first time in the first letter. This fact suggests that the defendants were making use of the project as a false pretence to harm the plaintiff and attack his integrity and sincerity. 42.Fifthly, no owners’ resolution at a general meeting was required for the project since the value did not exceed the threshold set out in section 20A(2B) of the Building Management Ordinance, Cap 344. In any event, in cross-examination, the plaintiff emphasised that the lift improvement project was executed and overseen by Holake, as resolved by the management committee. And, according to Holake, it was not necessary to hold an owners’ meeting. Instead, a briefing session was held to explain the project to the owners. LED replacement 43.In the first letter, the 1st to 4th defendants wrote, “主席好大喜功，未知效益，祇求想像、花費數以拾萬元，將全幢大廈可用光管全部更換、…”. 44.The plaintiff says that the above allegation that the plaintiff had caused the IO to incur tens of thousands of dollars to replace all of the light tubes in the Building was false and the defendants either did not honestly believe in the allegation or were reckless as to its truth. The allegation was false for a number of reasons. 45.First, the plaintiff did not cause the IO to incur the expenditure. The expenditure was approved by the management committee at the 5th meeting of the 14th term held on 15 September 2014. The minutes show that the plaintiff, the 2nd, 3rd and 4th defendants were present. Para (二)(3) recorded that the LED tubes were to be provided by the IO and quotations had been obtained from four contractors for the installation. It was unanimously resolved that a contractor called “文興水電工程” be appointed to undertake the replacement. I reproduce an extract of para (二)(3) below:-
46.In light of the unanimous resolution, the plaintiff contends that it was the management committee who decided to carry out the LED replacement project and that it was not him who caused the expenditure to be incurred. At the time of the first letter, the defendants knew that to be the case since three of them had in fact attended the meeting and voted in favour of the resolution. 47.Secondly, the project has led to significant benefits to the Building. The existing light tubes in the Building were aging. The benefits included reduced electricity bills in 2015 by a total sum of about $66,000. This was documented in an undated notice to the owners. Due to the durability of the new tubes, there was also a reduction in the rate of replacement of light tubes. The temperature of the lobby was also reduced as a result of the replacement. 48.In light of the express approval of the project by the management committee and its substantial benefits, it was wrong for the defendants to knowingly make the allegation that the plaintiff had caused money to be lavishly spent on the LED replacement project without caring what benefits it would bring (“主席好大喜功，未知效益，祇求想像”). 49.In respect of this project, the 2nd defendant made further allegations in relation to the plaintiff’s purchase of the LED light tubes in his witness statement:-
50.The plaintiff says that the above allegation that the plaintiff was conspiring with Tsang to use false document or data to inflate the amount of LED light tubes to defraud the IO is patently false. That allegation is tantamount to saying that the plaintiff had committed a serious crime. 51.In his testimony, the plaintiff explained the circumstances relating to the purchase of the LED light tubes. Youthful Technology asked Queen’s Cosmetics Co Ltd, a company of the plaintiff’s friend, to purchase 860 light tubes for it from China at the price of $32. Youthful Technology then re-sold 600 pieces to the IO at the same price. Some of the unused pieces were kept in reserve for future replacement. There was nothing improper about the purchase. And there was no conspiracy between him and Tsang to use false document to defraud the IO. 52.Hence the allegation is simply false. 53.Mr Lawrence Ng, who appeared for the plaintiff with Mr Victor Lui, pointed out that the allegation was not even put to the plaintiff in cross-examination. Furthermore, the 2nd defendant accepted in his oral testimony that in late 2016 or early 2017, the ICAC had replied to him that the investigation concerning the plaintiff had been completed and they had concluded that the plaintiff had not engaged in any corrupt activity. Notwithstanding this, the 2nd defendant failed to mention the latest development in his supplemental witness statement filed in September 2017. Thus, by his written evidence, he gave the false impression that the matter was still under investigation. Ground floor toilet renovation 54.In the first letter, the 1st to 4th defendants wrote, “主席好大喜功，未知效益，祇求想像 … 豪裝一個管理員工專用廁所”. 55.The plaintiff says that the above allegation that the plaintiff had caused the IO to incur tens of thousands of dollars to lavishly renovate a toilet which was exclusively used by the staff was false and the defendants either did not honestly believe in the allegation or were reckless as to its truth. The allegation was false for a number of reasons. 56.First, the plaintiff did not cause the IO to incur the expenditure. The expenditure was approved by the management committee in its 14th term. The discussion was documented in the minutes of the management committee. 57.At the 8th meeting of the 14th term held on 13 July 2015, the renovation of the male and female toilets located on the ground floor was discussed. The minutes show that the plaintiff, the 1st and 3rd defendants were present. Para (二)(2) recorded that the two toilets had been in use for over 20 years and had become dilapidated. It was suggested that they be renovated. The suggestion was approved and the management office was tasked with compiling the tender document and seeking quotations. A Mr Chung (宗先生), one of the committee members, was to follow up. I reproduce below the content of para (二)(2):-
58.At the next meeting, which is the 9th meeting of the 14th term held on 15 October 2015, Mr Chung made a report on the progress. The minutes show that the plaintiff, the 1st, 2nd, 3rd and 4th defendants were all present. Para (二)(2) recorded that quotations had been obtained from two contractors for the switching and renovating of the two toilets. It was reported that the lower bid was accepted, the renovation had commenced and Mr Chung would be responsible for supervising the project. I reproduce an extract of para (二)(2) below:-
59.The plaintiff says that none of the defendants, who were present at the meeting, raised any objection or complaint. 60.Secondly, the toilets on the ground floor were not exclusively used by the staff. 61.Tsang explained that they were accessible and were used by owners, tenants and visitors of the Building. In the female toilet, two cubicles were locked but a key was placed at the locker outside the management office. A third cubicle was unlocked and could be used by the public. 62.Mr Ng submitted that the defendants’ evidence under cross-examination support this:-
63.Thirdly, the renovation of the toilets has led to significant benefits to the Building. The plaintiff said that due to the hillside location of the Building, it was humid and the concrete in the ground floor toilets was in decay and would peel off easily. As a result, the toilets constantly required maintenance which was costly. Separately, before the switch, the female toilet was smaller than the male one. The cleaning lady had to store her equipment and supplies in the male toilet. It also made sense to have a larger female toilet since there were four female staff members – two at the management office and two cleaning ladies. 64.In summary, the plaintiff contends that it was the management committee who resolved to carry out the renovation project and it was not him who caused expenditure to be incurred just for the sake of spending money lavishly and without knowing the benefits. It was wrong for the defendants to say that the toilet was exclusively used by the staff. There were significant benefits brought about by the renovation. At the time of the first letter, the defendants knew that to be the case since all of them attended either one or both meetings in which the renovation was discussed, approved and followed up on and the benefits were there for all to see. Floor painting 65.This project was not mentioned in the first letter. It was an allegation made by the defendants in their pleading and witness statements. In the amended defence, the defendants complained about the plaintiff’s misconduct in relation to this project:-
66.The plaintiff contends that this allegation was false and the defendants either did not honestly believe in the allegation or were reckless as to its truth. 67.The matter was discussed at the 4th meeting of the 13th term held on 16 March 2012. The minutes show that the plaintiff, the 1st, 3rd and 4th defendants were present. Para (二)(9)(a) recorded, among other things, that the plaintiff proposed that the floors of the 2nd and 4th floor be re-painted since they were quite dirty but the 3rd defendant considered that all the floors should be re-painted in the interest of fairness. Discussion on how and by whom the work should be done followed. It was concluded that the 4th defendant and Mr Lau Wai Shan do follow up and report. I reproduce below an extract of para (二)(9)(a):-
68.Furthermore, Tsang testified that it was in fact Mr Lau who asked the management office to purchase the paint. 69.In light of the above, there was no basis for the defendants to make the allegation. Parking issues 70.In the first letter, the 1st to 4th defendants wrote, “縱容委員違規泊車，管理處職員欠缺管理”. 71.The plaintiff says that the above allegation that the plaintiff had condoned the improper parking by committee members and that the management office staff had not been managing the issue was false. The defendants did not honestly believe in the allegation or were reckless as to its truth. 72.The issue was discussed at the 5th meeting of the 13th term held on 14 June 2012. The minutes show that the plaintiff and all the defendants were present. Para (六) recorded that it was the plaintiff who brought up the issue of improper parking encroaching on public areas. I reproduce the content of para (六) below:-
73.The plaintiff points out that there was no further discussion of the parking issue in the subsequent meetings in the 13th and 14th term. Outstanding management fees 74.In the first letter, the 1st to 4th defendants wrote, “應收帳款不收，有些商戶欠費超過一年，累積應收帳廿萬元餘”. 75.The plaintiff says that the above allegation that (a) there were outstanding management fees of over $200,000 and (b) the plaintiff had failed to collect them was false. The defendants did not honestly believe in the allegation or were reckless as to its truth. 76.First, the collection of management fees was a matter for the management committee as a whole. 77.Secondly, the management committee had in fact taken active steps over the years to recover the outstanding management fees. 78.The main persistent defaulter was the owner of units 9E, 9F and 10P. The following minutes show that the issue of outstanding management fee owed by that owner had been a topic of discussion in a number of management committee meetings in the 13th and 14th term, which were attended variously by the defendants, and that negotiations and progressive actions were taken:-
79.There was therefore no basis for the defendants to knowingly make the allegation in the first letter. Adjustment of management fees, carpark rent and staff salaries 80.In the first letter, the 1st to 4th defendants wrote, “而余壽寧先生在位四年，管理費已加二次，加月租車位費，車場入閘費等，法團盈餘不旦沒増加，反而下降。” 81.The plaintiff contends that the increase in the management fees, carpark rent and staff salaries over the years had been approved by the management committee in meetings in the 13th and 14th term, which were attended variously by the defendants:-
82.Insofar as the defendants were suggesting in the first letter that the plaintiff’s management of the Building was deficient and he had poor financial management skills because of the increases in the management fees, carpark rent and staff salaries, the suggestion was plainly wrong. The minutes clearly demonstrate that the increases on various occasions were discussed and approved in meetings. At the time of the first letter, the defendants did not honestly believe in the allegation or were reckless as to its truth. Recovery of the charging system of the carpark 83.This issue was not mentioned in the first letter. 84.It was however mentioned in the witness statement of the 1st defendant. He complained that the plaintiff demanded that the IO return the carpark charging system to him at the beginning of the 15th term. The 1st defendant said:-
85.The plaintiff explained that the charging system installed at the management office and the carpark was his own personal property and was designed by him. He denied that he had made the demand to take back the system. He only asked the IO to arrange for the maintenance of the system. Many members of the management committee were dissatisfied with the performance of the plaintiff 86.In the first letter, the defendants wrote: “縱容管理處主管權力獨大，對各業主訴求推三檔四、好事領功，出事就閃，使很多業主對其表現非常不滿”. 87.The plaintiff emphasised in his evidence that throughout the 13th and 14th term, the defendants and Ng had never made any complaint or expressed any dissatisfaction into him. His evidence was supported by Tsang’s testimony. Overall, management of the Building by the plaintiff as chairman 88.In the first letter, the 1st to 4th defendants wrote:-
89.In this action, the defendants rely on the various projects and management issues in support of the above words. In his witness statement, the 1st defendant alleged that in the 13th and 14th term, the plaintiff was engaged in a lot of improper conduct (“有太多不當事件”). He then referred to, among others, the floor painting project and the ground floor toilet renovation and explicitly claimed that these two matters corroborate the claim that the plaintiff spent lavishly, without paying regard to the actual benefit (“未知效益，祇求想像”). The same two incidents were relied on by the 2nd defendant in his witness statement to make good the same point. Further, in their oral testimony, all the defendants repeatedly confirmed that the above words are true. 90.The plaintiff says that what the defendants said about the various projects and management issues were untrue and they did not honestly believe in what they said or were reckless as to its truth. It follows that at the time of the first letter, they did not honestly believe in the words quoted under this heading or were reckless as to their truth. Events leading to the Original Owners’ Meeting: the proxy forms pre-printed with the plaintiff’s name 91.In the first letter, the 1st to 4th defendants wrote, “這次選舉可能是歷屆選舉中最激烈、最黑暗、最卑劣的選舉，有人無所不用其極，運用權力，以偷步封殺的不法行為，指使管理處作為其個人競選總部，更未公佈參選名單前，偷步印製余壽寧先生競選授權書進行非法拉票，誤導業主，以為一人參選，對另一參選者王雲强先生極不公平。”. 92.The above words, the plaintiff says, bear the meaning that the plaintiff was engaged in illegal, unscrupulous and unethical conduct in the election of the chairman, and that he deliberately misled the owners into believing that he was the only candidate in the election when that was not the case. 93.More specifically, they mean that the plaintiff directed the management office to be his campaign headquarters and to prepare proxy forms pre-printed with his name so as to canvass votes illegally and mislead owners. 94.The plaintiff contends that these allegations were patently false and that the defendants either did not honestly believe in them or were reckless as to their truth at the time of the first letter. 95.Tsang gave a more detailed account of the events concerning the proxy forms.
96.The plaintiff emphasises that the proxy forms were prepared after the plaintiff signed up to run but before the 1st defendant signed up. At that time, the management office was simply following the past practice of preparing pre-printed proxy forms. As there was only one candidate at the time of preparation, only proxy forms with the plaintiff’s name were prepared. 97.There is therefore no proper basis for the defendants to say in the first letter that the plaintiff was “jumping the gun” or blocking others in the election (“偷步封殺的不法行為”) or was otherwise engaging in illegal, unscrupulous and unethical conduct in the general election. The Original Owners’ Meeting 98.In the second letter, the 2nd defendant wrote, “在十一月廿五日主席選舉中，…有人指使其員工，竟然在現場偷拍，這種行為就是對不同意見委員心理上的震懾。”. 99.Further, in his supplemental witness statement, the 2nd defendant stated:-
100.The plaintiff says that the allegation that at the Original Owners’ Meeting, the plaintiff had instructed his staff to secretly take recordings and that such behaviour was a psychological intimidation to members of the IO who held different opinions was false. Further, the 2nd defendant either did not honestly believe in the allegation or was reckless as to its truth. 101.There were three individuals taking photographs at the meeting. They were staff of the plaintiff’s companies. Two of them held the title of general manager and the other one marketing manager. Each was a proxy appointed by Season Yield. The appointments were supported by proxy forms. 102.The plaintiff’s son did not attend the meeting. 103.The plaintiff says that the photographs were taken for record and they were not taken secretly. There are previous examples of photographs taken at meetings, such as at the briefing session of the lift improvement project held on 31 January 2013. A photograph taken on that occasion was disclosed in this action. 104.Ting said in cross-examination that people spoke very loudly at the meeting, someone was asking why photographs were taken, and she did feel a little scared as that happened. 105.In cross-examination, the 2nd defendant gave contradictory evidence on whether he knew that that three individuals were the plaintiff’s staff when he issued the second letter. Initially, he said he definitely did not know about it. However, shortly afterwards, his evidence took a u-turn and he admitted that he in fact did. 106.In the end, the general election did not take place. The meeting was adjourned to 15 December 2015. After the Original Owners’ Meeting: the plaintiff’s demand letters 107.In the second letter, the 2nd defendant wrote, “十一月廿七日，本人接到余壽寧主席的律師警告信，對本人形同威嚇。以一個為連任，竟然對委員作出震懾、威嚇，委員人身安全受到威脋… 一個用不當手段以震懾丶威嚇委員的主席，對法團運作是嚴重事件”. 108.The plaintiff says that the allegation that he tried to intimidate and frighten members of the management committee and causing them to fear for their personal safety was false. Further, the 2nd defendant either did not honestly believe in the allegation or was reckless as to its truth. 109.The letter issued by the plaintiff to the 2nd defendant on 27 November 2015 was a demand letter. It set out the plaintiff’s complaints about the first letter and his demands. It is plain from its contents that it did not amount to any intimidation or threat. 110.In fact, in cross-examination, the 2nd defendant’s own evidence was that the contents of the demand letter were not serious and he felt that there was no need to reply to it. Hence he could not have believed that the plaintiff was engaging in intimidating and threatening conduct towards the members of the IO. The Adjourned Owners’ Meeting 111.At the Adjourned Owners’ Meeting, three matters were discussed. 112.In accordance with the usual practice, Tsang took notes at the meeting and later prepared the minutes. That is the version on which the plaintiff now relies. A copy of that was posted on the notice boards of the Building on 12 January 2016. The plaintiff says the minutes accurately recorded the discussion which had taken place. It covered three items:-
113.In his testimony, the plaintiff emphasised that when he tendered his apology at the Adjourned Owners’ Meeting, he was only doing so in respect of the preparation of the pre-printed proxy forms by the management office but not in respect of other matters. He was apologising on behalf of the management office, solely with a view to resolving the conflict between the office and some of the owners over this subject-matter. 114.The plaintiff’s account of what happened at the meeting, in particular, his apology, is supported by Tsang’s testimony. However, Tsang maintained the view that there was nothing wrong with the preparation of the pre-printed proxy forms since the management office was just following past practice. 115.The plaintiff’s account is also supported by Ting’s evidence. The tape recording of the Adjourned Owners’ Meeting 116.Like all management committee meetings and owners’ meetings, the Adjourned Owners’ Meeting was recorded on a cassette tape. The cassette tape for that meeting was kept by the management office and was never in the possession of the plaintiff. The plaintiff had not listened to the cassette tape before the commencement of the present action. 117.For preparing the minutes of the Adjourned Owners’ Meeting, as was her usual practice, Tsang relied on her handwritten notes and did not listen to the cassette tape. The tape was stored inside a drawer in the management office. 118.One or two days after copies of the minutes of that meeting were posted on the notice boards, the 1st defendant went to the management office and demanded Tsang to hand over the cassette tape. Tsang acceded to his request. A few days later, on about 18 January 2016, the 1st defendant returned the cassette tape to Tsang and alleged that some of the contents were missing. Tsang did not follow up at that time. This is partly because she seldom listened to the cassette tapes recording the meetings anyway and therefore was not paying much attention to whether the content was complete or not. Tsang simply put the cassette tape back to the drawer and locked it up. No one approached her for the cassette tape up until the day she left employment. 119.After the general election for the 15th term in January 2016, the plaintiff is no longer a member of the management committee. The first time he listened to the content of the recording made of the Adjourned Owners’ Meeting was after the action was commenced. 120.The relevant chronology of events surrounding the tape recording is as follows:-
121.The plaintiff denies the serious allegation made by the defendants that he had erased the recording relating to his “admission” of wrongdoings. He emphasises that the cassette tape was never in his possession. Subsequent events 122.Just to complete the chronology, I set out below others events which took place subsequently. 123.On 21 January 2016, the plaintiff commenced the present action. 124.On 26 January 2016, members of the management committee for the 15th term was elected. 125.Tsang’s last working day was 4 February 2016. Injury to reputation 126.As a result of the publication of the first and second words, the plaintiff says that his reputation has been gravely injured. He has been exposed to public hatred, contempt and/or ridicule and has suffered considerable distress and embarrassment. 127.In addition to the demand letter sent to the 2nd defendant as mentioned above, demand letters were also sent by the plaintiff, through his solicitors, to the other defendants in respect of the first letter and to the 2nd defendant in respect of the second letter. The plaintiff demanded the defendants to tender an apology, among other things. However, the defendants failed to reply to the demand letters. 128.Although the first letter was co-issued by Cheung Chi Wan, the plaintiff has not brought any court suit against him. Cheung posted a letter on the notice board of the Building on about 13 January 2016. It was entitled “收回誹謗言論的通告”. In essence, Cheung formally withdrew his words in the first letter. He admitted that the libellous words were not true and were written to damage the plaintiff’s election prospect. He made an apology and promised not to issue any such libel in the future. 129.In contrast with Cheung’s stance, none of the defendants tendered an apology to the plaintiff. The plaintiff therefore had no choice but to commence the present action to vindicate his reputation. THE DEFENDANTS’ CASE 130.I set out below the defendants’ case, broadly following the structure I have used to recount the plaintiff’s case. Publication 131.Copies of the first letter were inserted into the letterboxes of all the owners by the 4th defendant and Ng. The defendants deny that they omitted to place copies in the letterboxes owned by Season Yield. 132.Copies of the second letter were similarly inserted into the letterboxes of all the owners of the Building. The 2nd defendant does not admit that he had posted copies on all the notice boards in the Building. He puts the plaintiff to proof. The plaintiff’s management in general 133.The defendants were dissatisfied with the performance of the plaintiff as chairman in the 13th and 14th term. The 3rd defendant described the management committee under the chairmanship of the plaintiff as “一言堂”, suggesting that opposing views would be ignored. The 3rd defendant also said in cross-examination (but not in his witness statements) that the plaintiff had said at a meeting that if people said wrong things, he would sue them. 134.The defendants believed that there was discontent among other members of the management committee. Many former and existing members were not supportive of the plaintiff’s decisions. 135.However, the plaintiff had on his side a sufficient number of committee members who would support him and help him pass resolutions. The rest of the voices were therefore rendered powerless. In his supplemental witness statement, the 1st defendant said that as they were outnumbered by those in the plaintiff’s camp, they were not able to object and could only accept the decisions reluctantly (“在一些委員會上，我們以少敵多，沒有反對的權利，無奈只好一次又一次接受這些工程”). 136.The defendants were also dissatisfied with the performance of Tsang as the supervisor of the management office, as she was not doing her job properly. The role of the management office was to support the work of the IO and the owners. However, Tsang often did not deal with complaints raised by the owners. Yet, the plaintiff did not take steps to better manage Tsang. He in fact condoned her wrongdoing. Tsang had made many mistakes. But the plaintiff did not even give her any warning. 137.In their witness statements, the defendants said that the first letter was issued because while the plaintiff was in office, there were many improper incidents. The 1st defendant referred to them as “太多不當事件”, the 2nd and 4th defendants described them as “太多失職事件” whereas the 3rd defendant referred to them as “不公的事”. 138.Another general theme running through the defence evidence is that notwithstanding that the minutes recorded that the resolutions had been passed unanimously (“一致通過”), it was not, or could not be, the case in some instances. Sometimes, members had raised objections at the meeting but these objections were not subsequently recorded in the minutes. Some of the minutes therefore did not truly reflect the full discussions which had taken place at the meetings. The 1st, 2nd and 3rd defendants gave oral testimony to that effect. Since being a member of the management committee was entirely voluntary, none of them would spend too much time on reviewing the minutes. 139.The 1st defendant also testified that he had in fact confronted Tsang in a meeting, demanding her to explain why she had failed to record the objecting views in the minutes. Later on, in his oral testimony, he also expressed his intrigue about why the minutes did not record many of the things which he had said at meetings. However, since the work of a management committee member is voluntary, he would not be over concerned about it at the time. 140.When the first and second letters were issued, the election for the 15th term was coming up. The defendants considered that it was their duty and in the interest of all the owners that the wrongdoings of the plaintiff were made known to them. 141.In cross-examination, the defendants explained their motives behind the first letter and, in the case of the 2nd defendant, the first and second letters.
142.The defendants rely on various incidents to demonstrate the shortcomings of the plaintiff and his mismanagement of the IO affairs. Lift improvement 143.The defendants hold a number of grievances over the lift improvement project. 144.First, in the first letter, the defendants’ complaint about the lift improvement project was that it was carried out without the authorisation of the owners. 145.It is an objective fact that no owners’ meeting was held to approve the project. It was the management committee who resolved to carry out the project. In this action, the plaintiff relies on two resolutions passed in respect of the project – see paras 33 to 34 above. 146.The defendants point out that there was in fact an intervening resolution which was passed at the 7th meeting of the 13th term held on 22 October 2012. I shall refer to the resolutions in the order of time as the “first”, “second” and “third” resolutions in this section. 147.In her closing submissions, Ms Candy Fong, counsel for the defendants, contended that there is a clear discrepancy between the second and third resolutions. 148.The second resolution was passed in October 2012 and was recorded in para (三) of the minutes:-
149.As is clear from the underlined words, the resolution expressly contemplated that an owners’ resolution should be passed in respect of the project. 150.Nevertheless, in the next (and third) resolution passed in January 2013, the owners’ resolution was omitted: “一致通過交由較低標「好歷香港升降機有限公司」承造是項工程。委員建議出通告知會業主，召開「升降機改善工程」簡介會，由秘書孔先生負責跟進”. The owners’ resolution originally contemplated was replaced by a briefing session for the owners. 151.The 2nd defendant said that he doubted the authenticity of the minutes of the third meeting. On its face, it was dated 5 February 2013, followed by a remark “Amended” (“修訂”). In any event, Ms Fong submitted that the second and third resolutions are contradictory. 152.Furthermore, the defendants say that the value of the lift improvement project exceeded $500,000. As a matter of law, it therefore required an approval from the owners. 153.All these clearly support the defendants’ honest claim expressed in the first letter about the lift improvement project, namely “未経業主授權，違反條例第344章”. 154.Secondly, the lift improvement project was problematic for another reason. The defendants say that only two bids had been received for the project, the three other invitees not having submitted any bid. The process was therefore not in compliance with para 11 of the Code of Practice on Procurement of Supplies, Goods and Services. In such a situation, it requires the committee to resolve to accept or reject the tender exercise. The plaintiff failed to explain why there was such non-compliance. 155.Thirdly, as regards the plaintiff’s argument that it was the responsibility of the management committee, not him alone, to carry out the project legally, the defendants contend that the plaintiff was the person who signed the minutes, contracts and cheques and Tsang was the person who prepared the relevant documentation and proceeded with the administrative matters for execution. Hence, the defendant say that their complaints and objections would be ignored if the plaintiff continued to be chairman. 156.Fourthly, the defendants disagree with the plaintiff’s contention that at the time of the first letter, they knew or ought to have known that the government subsidy had been received by the IO. 157.The government subsidy was granted in stages and only upon certain energy saving requirements being met. There was therefore no guarantee at the beginning of the project that the subsidy would be paid. The IO had to, and did, make an upfront payment itself. The members of the committee in fact did not know exactly when the subsidy was actually received from the government. It was for Holake to report on the completion of the project. The Income Statements, now relied on by the plaintiff, was not even signed. The other document relied on, namely the auditors’ report for the year ended 31 May 2015, was only completed on 21 April 2016. 158.Based on the above, Ms Fong submitted in closing that at the time of the first letter, the defendants had no knowledge of the receipt of the government subsidy. The plaintiff’s contention in this regard is an attempt to cover up or cloud the illegality of the plaintiff’s act of not seeking the owners’ approval of the project. Hence, the allegation that “升降機，一擲伍拾多萬元更改裝備” in the first letter was true. The defendants honestly believed in them when the letter was issued. 159.Fifthly, as to whether the electricity expenses were saved due to the project, the defendants say that there is no direct evidence in support of this. Even if there was any saving, it could have been caused by the arrangement approved in the 8th meeting of the 14th term held on 13 July 2015 that two lifts would be suspended during night time. Para (二) (4)(a) of the minutes read:-
160.Notwithstanding the above, among the benefits alleged by the plaintiff, the 4th defendant accepted that after the improvement works, the lift floor in fact levelled with the building floor a little better than before. LED replacement 161.In the first letter, the defendants wrote: “主席好大喜功，未知效益，祇求想像、花費數以拾萬元，將全幢大廈可用光管全部更換”. 162.Their primary discontent was that the plaintiff proceeded to have the LED light tubes in the entire Building replaced in one go. 163.This was contrary to the earlier resolution passed in the 2nd meeting of the 13th term held on 22 July 2011. Para (二)(2) of the minutes read:-
164.It had clearly been contemplated that the replacement should be carried out in stages so that the effect and quality of the new tubes could be observed and monitored. In any event, it would accord with common sense that the tubes should be replaced in phases. 165.Furthermore, the wholesale replacement was contrary to the usual practice in the Building that the light tubes would be replaced one by one as and when one failed to function. The 2nd defendant described this in his oral testimony as “壞一枝換一枝”. 166.The second area of discontent about the project was that the number of light tubes paid for by the IO did not match with the number actually installed. Up till now, the defendants could not find the surplus light tubes. 167.Thirdly, the defendants do not accept that there was any energy saving from the new light tubes. The plaintiff has failed to produce any documentary evidence on the alleged actual savings. 168.The defendants say that the minutes of the 5th meeting of the 14th term held on 15 September 2014, relied on by the plaintiff, was ambiguous and was open to different interpretations. Although it was expressly resolved that the project be undertaken by an outside contractor, the resolution did not go on to say expressly whether the light tubes should be replaced in one go or in stages. At that time, the defendants did not pay attention to such details. And, in light of all the above circumstances, at the time of the first letter, they honestly believed that by replacing all the LED light tubes in the Building in one go, the plaintiff had spent too much on the LED replacement project without knowing whether the benefits, if any, would outweigh the expenses (“好大喜功，未知效益，祇求想像”). 169.Fourthly, the defendants have strong objection to how the plaintiff had sourced the LED light tubes, ie through Youthful Technology:-
Ground floor toilet renovation 170.The defendants contend that the plaintiff had overspent unnecessarily on the ground floor toilet which is primarily used by the staff (“豪裝一個管理員工專用廁所”) for no benefit. They have a number of complaints about the renovation project. 171.The background to it was that there is a male toilet on the upper floor. It underwent refurbishment in 2012 at a cost of about $60,000. The renovation was considered to be satisfactory – see the minutes of the 5th meeting of the 13th term held on 14 June 2012, para (一)(4): “效果滿意”. There was one toilet on the ground floor, which was divided into male and female toilets. The defendants say that the ground floor toilet is primarily used by the staff. The owners all have toilets located within their own units. Also, the ground floor toilet was tucked away and not used by the public or visitors to the Building. That was why they stated in the first letter that the toilet was for staff use. 172.Their first area of discontent is that the defendants had not been aware that there was going to be an interchange of the male and female toilets. This was not mentioned in the first resolution. Even in the second resolution, the defendants complain that the interchange was only mentioned in the table but not the heading. The drafting appeared to be “ambiguous and sneaky”. This casts doubt on the credibility of the author of the document. 173.Secondly, the defendants complain that by the time the project was put before the management committee for approval, part payment had already been made and the project had already been in progress. 174.There were two resolutions passed in respect of the renovation of the ground floor toilets – see paras 57 to 58 above. I shall refer to them as the “first” and “second” resolutions in this section. 175.According to the first resolution, Chung was tasked with following up on the project. However, before the second resolution, a cheque in the sum of $56,000 payable to the contractor had been prepared by Tsang and signed by the plaintiff on 22 September 2015. The defendants rely on (a) an invoice dated 21 September issued by the contractor for that sum, which represented 40% of the total fee, (b) a voucher dated 22 September for that sum approved by the plaintiff, and (c) the cheque dated the same date. 176.Thus, payment had preceded the second resolution of the management committee. 177.Further, according to the defendants’ oral testimony, during the second meeting, members were invited to go downstairs to inspect the toilet and they found that the works were already under way and almost completed. In the circumstances, there was simply no room for the defendants to raise any objection at that stage. The 1st defendant described the plaintiff’s conduct as “先斬後奏” in his supplemental witness statement. 178.The third area of discontent lies in the fact that the project was costly and the interchange did not bring about any real benefit. It cost much more than the renovation of the upper floor toilet. Further, the costs exceeded $200,000 and should require an owners’ resolution. However, the plaintiff chose to treat the renovation of the male and female toilets as two projects, each under the limit of $200,000, thus getting round the requirement. This casts doubt on his credibility. 179.In respect of the project, Ms Fong submitted in writing as follows:-
180.For the above reasons, at the time of the first letter, the defendants honestly believed that the plaintiff had spent unnecessarily and lavishly on the ground floor toilet renovation which brought no real benefit to the owners. Floor painting 181.In respect of the floor painting project, the defendants’ grievances against the plaintiff concern two matters. First, the plaintiff endorsed in the painting of all the floors without proper committee resolution. Second, he caused to purchase too much paint before the trial result, thus causing wastage of the IO’s funds. 182.In his witness statement, the 1st defendant said:-
183.This was supported by the 2nd defendant’s evidence in his witness statement. 184.The discussion referred to at the end of the above written testimony took place at the special meeting held by the management committee on 5 April 2012 in a restaurant. Among those in attendance were the 1st, 2nd and 4th defendants and Ng, the secretary. Tsang was also present. Before the meeting, Ng had invited the plaintiff to attend the special meeting to discuss the paint issue. Yu did not attend as he did not have time. The meeting was urgently convened to deal with the paint which was purchased when no consensus had yet been reached on the detailed arrangement concerning, eg, whether the staff of the Building should execute the work and the insurance issues. Since there was no proper storage space for the inflammable materials, it was resolved that the paint be returned to the supplier at a 10% discount, plus transportation cost. 185.The defendants rely on the minutes of the meeting dated 11 June 2012 and signed by the 1st defendant. They say the minutes accurately reflected the discussion which had taken place:-
186.Upon learning of the decision two days later, the plaintiff accepted it and did not raise any objection. 187.This reflects that he was not co-operating with the committee members. He did not attend meetings which were not initiated by him. He would not even try to re-fix a date so as to the attend the meeting. Even in cross-examination, he insisted that it was just a tea gathering and even alleged that the minutes might be a forged document. 188.In cross-examination, Tsang said she did not consider that the gathering at the restaurant to be a proper committee meeting as it was called by telephone without any agenda. Ng asked her to join and she therefore joined. Parking issues 189.The defendants say that there had always been parking issues, including double parking. This means that two cars were parked in one carpark space. This caused inconvenience to others and blocked traffic. 190.In his oral testimony, the plaintiff said that Tsang had previously allowed government car to park in the private space of Wong Kim Ping and charged parking fees for that. The defendants say it was a trespass of an owner’s private property. Ms Fong submitted that this shows that the plaintiff “condone or work in concert with Tsang despite knowing it is illegal to trespass”. 191.Further, the 1st defendant said that certain members who supported the plaintiff were given special favours. Notwithstanding their double or improper parking, Tsang turned a blind eye to that. 192.For the above reasons, the defendants believed that the plaintiff had condoned Tsang’s mismanagement of the carpark. They believed that the words “縱容委員違規泊車，管理處職員欠缺管理” were true at the time of the first letter. Outstanding management fees 193.After the 6th meeting of the 14th term held on 9 December 2014, there was no further report on the outstanding management fees owing by the defaulting owner. The 1st defendant said that after the payment of $42,000, that defaulting owner made no further payment. There was no discussion about the overdue fees at all in the whole year of 2015. 194.It can be inferred that Tsang was not performing her duties as she had failed to follow up on the long and mounting overdue management fees of that owner. Neither the plaintiff nor Tsang put up this topic for discussion in subsequent meetings. As head of the management office, she did not take active steps to address the problem. Therefore, the defendants had reason to believe that the plaintiff had condoned Tsang’s omission. It also shows that Tsang would only take instructions from the plaintiff. 195.Ms Fong submitted that the evidence before the court confirms that the total outstanding fees were about $180,000 as of September 2015 and about $200,000 as of November 2015. Adjustment of management fees, carpark rent and staff salaries 196.In the first letter, the defendants said that the plaintiff’s performance was to be contrasted with the former chairman, Wong Yu San. While Wong was chairman, there was no increase in the management fees and the IO always maintained a sizable surplus funds. While the plaintiff was chairman in the 13th and 14 term, the management fees were increased twice, together with increase in carpark rents etc. The IO’s fund had been decreasing. It was their honest belief that if the plaintiff continued to be chairman, the IO’s funds would be further depleted thus increasing the financial burden of the owners. Recovery of the charging system of the carpark 197.The defendants’ complaint was that shortly after the general election in January 2016, the plaintiff demanded the IO to return the charging systems at the carpark and the management office. This had made it difficult for the new management committee to function properly. Many members of the management committee were dissatisfied with the performance of the plaintiff 198.In the first letter, the defendants wrote: “縱容管理處主管權力獨大，對各業主訴求推三檔四、好事領功，出事就閃，使很多業主對其表現非常不滿”. 199.The defendants say that the various incidents and projects discussed above show that to be the case. Tsang was the key person to prepare cheques, minutes of meetings and the management of the day-to-day activities of the Building. She had been performing her job in many improper ways. She had not listened to the instructions of the members of the management committee. If the plaintiff had not condoned her act, Tsang, as an employee, would not have dared to behave in that way. 200.In his witness statement, the 1st defendant said that towards the end of the 13th term, the plaintiff had not been receptive to different opinions. At the beginning of the 14th term, two members, namely Wong Kim Ping and Ng resigned as a result. Many members expressed their dissatisfaction with the plaintiff. The 2nd defendant said the same in his witness statement. In his supplemental witness statement, he further elaborated that the paint incident was the trigger for Ng’s resignation. For Wong Kim Ping, he was dissatisfied with how the plaintiff had handled the parking issue. Wong made complaints to the plaintiff but the plaintiff ignored them. 201.In his own supplemental statement, Ng explained that he sold his unit in the Building in 2012 but was still a tenant of another unit. Because of that, in the 6th meeting of the 13th term, the plaintiff requested that he resign and deliver up the seals (used for cheques). Ng took the view that a non-owner could take up the position of secretary according to the Building Management Ordinance and indicated that he would remain in office just for a few more months as the 13th term was coming to an end. However, his offer was rejected. In the end, Ng resigned as secretary. 202.Therefore, it shows that the defendants honestly believed what they had written in the first letter concerning the management office, the plaintiff’s mismanagement and the dissatisfaction of many committee members. Events leading to the Original Owners’ Meeting: the proxy forms pre-printed with the plaintiff’s name 203.In the first letter, the 1st to 4th defendants wrote, “這次選舉可能是歷屆選舉中最激烈、最黑暗、最卑劣的選舉，有人無所不用其極，運用權力，以偷步封殺的不法行為，指使管理處作為其個人競選總部，更未公佈參選名單前，偷步印製余壽寧先生競選授權書進行非法拉票，誤導業主，以為一人參選，對另一參選者王雲强先生極不公平。”. 204.The defendants take great issue with Tsang’s preparation of the proxy forms pre-printed with the plaintiff’s name. They say that it was an unfair practice and created a misleading impression in the minds of the owners that there was only one candidate running for chairman. This was an improper means to obtain votes. One such example was the proxy form signed by Cheng Hau Yuk. Cheng signed a letter dated 13 June 2016 stating that Tsang visited her on one occasion and asked her to sign on a proxy form pre-printed with the plaintiff’s name. It was only later on that she found out that the 1st defendant was also running. She therefore felt that she had been misled by Tsang into thinking that the plaintiff was the only candidate. 205.The practice was also improper as Tsang, as an employee, must take a neutral stance in the election. The resources of the management office should not be used to promote any one particular candidate. 206.The defendants submit that the comparison with the use of pre-printed proxy forms in past elections is not meaningful. This is because there were no competing candidates in the past. Hence the use of pre-printed proxies would not pose any problem. 207.Hence, the plaintiff would gain an unfair advantage over other candidates by reason of the preparation of the proxy forms pre-printed with his name. All candidates must have the same starting point and such proxy forms should only be prepared after the enrolment period for candidates was closed. 208.According to the notice to the owners regarding the general election of the 15th term, the deadline for both the candidates and the submission of proxy forms fell on the same date. It therefore followed that it would not be possible for the management office to prepare proxy forms only after the enrolment period was closed. On this point, the 2nd defendant said that he was unaware of the overlapping deadlines and had overlooked it when the notice was posted on the notice boards. But that was an oversight. It does not detract from the fact that the defendants honestly believed that by those pre-printed forms, the plaintiff was allowed to “jump the queue” thus gaining an unfair advantage over the other candidate, and, further, that the management office had acted improperly in this regard. 209.Their belief can further be supported by the fact that after learning of the unfair practice, the 4th defendant made a report to the police about it. The Original Owners’ Meeting 210.In the second letter, the 2nd defendant complained that at the Original Owners’ Meeting, strangers were taking pictures of the 2nd defendant and other owners. This caused alarm and intimidation upon the 2nd defendant. 211.Ms Fong asked why the plaintiff’s company needed to appoint three men as proxies and why they took pictures of the owners at the meeting. They actually left the meeting when questioned by the owners. Why would they do so? The 2nd defendant genuinely felt frightened at the meeting. It was his subjective state of mind and that was what he expressed in the second letter. 212.The general election did not take place as scheduled at the Original Owners’ Meeting. It was postponed. All the proxy forms were sealed and not used. 213.In Tsang’s cross-examination, it was revealed that she had not prepared any minutes for the Original Owners’ Meeting. There was no good explanation for that. The defendants say that one may infer that the plaintiff and Tsang had something to hide. It can also be inferred that the election was postponed due to suspected improper or illegal pre-printed proxy forms. After the Original Owners’ Meeting: the plaintiff’s demand letters 214.After the Original Owners’ Meeting, on 27 November 2015, the 2nd defendant received the demand letter from the plaintiff threatening legal action against him. The 2nd defendant believed that the plaintiff’s motive was to intimidate him, forcing him to shut up and stop revealing his mismanagement and improper conduct. 215.It was against the backdrop of what happened at and immediately after the Original Owners’ Meeting that the 2nd defendant issued the second letter. 216.In his supplemental witness statement, the 2nd defendant said he recalled a conversation with the plaintiff in which the plaintiff said that he knew many people, “both black and white”. The 2nd defendant considered that he ought to share with the owners the plaintiff’s improper conduct so that they could exercise their own judgment as to how to vote. 217.The 2nd defendant’s written evidence is as follows:-
218.However, in cross-examination, the 2nd defendant changed his evidence. Instead, he said that it was in fact another owner who told him about the plaintiff knowing many people, “both black and white”. The Adjourned Owners’ Meeting 219.In the amended defence, it is pleaded that the plaintiff had admitted the contents of the first and second letters in the Adjourned Owners’ Meeting and the plaintiff openly admitted his wrongdoing. He said: “對於大家提出我嘅過錯，我向大家道歉，而有關主管嘅事我一力承擔。” 220.In their witness statements, the defendants recounted the apology given by the plaintiff as follows. They expressly said that the plaintiff was apologising for his wrongdoing while he was in office. Their written evidence in this regard is identical:-
221.In his supplemental witness statement, the 3rd defendant added:-
The tape recording of the Adjourned Owners’ Meeting 222.In the amended defence, it is pleaded that the plaintiff’s admission of his wrongdoing as spelt out in the first letter was “once on tape recordings but were erased while the tape recordings were in the possession of the Plaintiff and [Tsang]”. 223.In his supplemental witness statement, the 1st defendant said:- “但後期我們聽回錄音，發現部分錄音沒有了。” 224.Ms Fong submitted that despite the 1st defendant’s complaint about the blank parts, Tsang did nothing. She did not even check the tape to see if there were indeed any blank parts. Her act was certainly suspicious. 225.When the minutes of the Adjourned Owners’ Meeting was posted on the notice boards (ie the version relied on by the plaintiff), the defendants found out that there were some mistakes and requested the plaintiff to correct them. However, he refused. The defendants therefore came up with the amended minutes. That would be the version which they disclosed in this action. But the plaintiff refused to sign. In that version, it was recorded that the plaintiff had apologised for, among other things, the carrying out of the lift improvement project without the approval of an owners’ meeting. Summary of the defendants’ case 226.In summary, the defendants contend that the two letters were issued to the owners of the Building only. The communication was made for the interest of the owners of the Building for the purpose of the election of the management committee of the 15th term. They honestly believed the statements made in the letters were true. They saw it as their duty to disclose to, and share with, all the owners information which were pertinent for them to decide who to vote for as the new chairman in the 15th term. Such pertinent information included the character of the plaintiff, how he had discharged his duty as chairman during his tenure and how he had managed the staff of the management office. This was the dominant motive of the defendants when issuing the letters. Hence, the plaintiff has failed to show malice on the defendants’ part. THE EVIDENCE 227.The plaintiff and the defendants have put forward conflicting versions of events. The disputes span over the management style of the plaintiff in general, the various projects which had been undertaken in the Building in the 13th and 14th term of the management committee and, importantly, the defendants’ subjective state of mind as to the truth of the allegations made in the first and second letters at the time they were issued. The factual disputes need to be resolved as the issue of malice would turn on the answers to them. 228.The resolution of the factual disputes primarily turns on the credibility of the witnesses. My task is to evaluate the competing evidence against the backdrop of undisputed and indisputable facts. I am to weigh the inherent probabilities of the parties’ cases. Contemporaneous documents should be given due weight in the assessment exercise. The internal consistency (or inconsistency) of the witnesses’ evidence should be taken into account. The court would also be guided by its overall impression of the characters and motivations of the witnesses: see, eg, Re B (Children) [2009] 1 AC 11, para 31, cited in Standard Chartered Bank v Li Wai Ping HCA 10587/2000 and 3573/2003, 17 February 2011, para 19; Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd HCA 1957/2005, 28 July 2011, paras 23-25. 229.Mr Ng highlighted two general points. First, where there exists a wealth of contemporaneous documents, the credibility of the witnesses is to be tested by reference most particularly to them: Esquire (Electronics) Ltd v Hongkong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439, para 158. Secondly, the court will have to be alert to the contradictions and inconsistencies between the oral testimony and the witness statement of a witness. The internal inconsistency of a witness’ evidence is often tested by a comparison between the witness’ oral testimony and his witness statement: Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009, 8 April 2014, para 79. 230.On the whole, I find that the plaintiff’s evidence is more credible than the defendants’. I consider that the following matters are material considerations in the evaluation exercise. First, the plaintiff’s case is on the whole coherent, inherently plausible, consistent and supported by contemporaneous documents 231.The plaintiff’s case is on the whole coherent, inherently plausible and generally consistent throughout these proceedings, with no material discrepancies in his evidence. More notably, his case is supported by contemporaneous documents in the form of the minutes of the management committee meetings held in its 13th and 14th term. 232.One of the key planks of the plaintiff’s case is that the various projects carried out at the Building and other management matters were approved by the management committee as a whole. It was therefore wrong for the defendants to allege or suggest in the first letter that it was him who had caused these projects to be carried out. It was wrong because the management committee had passed unanimous resolutions in respect of the projects and the defendants knew about the resolutions since they, or at least some of them, were present at the various meetings in which these resolutions were passed. 233.It is not necessary for me to recount the incidents here. I have set out the plaintiff’s case in detail and reproduce the relevant extracts of the minutes above. The contemporaneous documents really speak for themselves. 234.In addition, the key witnesses, namely the plaintiff and Tsang, testified in a calm, straightforward, and matter-of-fact manner. Their written and oral evidence is on the whole consistent. 235.Within the plaintiff’s case, in respect of the lift improvement project and the ground floor toilet renovation project, the submissions made on behalf of the defendants need to be reflected on with care. 236.As regards the lift improvement project, there is an apparent discrepancy between the second and third resolutions. The former resolved that an owners’ meeting be prepared and the project be put to a resolution. The latter, however, resolved to approve to appoint Holake to carry out the project. The owners’ resolution previously contemplated was not mentioned. Instead, a briefing session for the owners was proposed to be held. The obvious question which comes to mind is this – why wasn’t there an owners’ meeting for approving the project, as contemplated? That is in fact the crux of the defendants’ complaint about this project. 237.As regards the ground floor toilet renovation, there is also an apparent gap in the flow of events, as disclosed on the face of the first and second resolutions. The former resolved to obtain quotations from contractors and appoint Chung to follow up. The latter, however, revealed that the project had already commenced. Contemporaneous documents in the form of payment voucher and cheque also show that part payment had been made before the second resolution. The obvious question is – why wasn’t there a proper resolution to approve the project before the work commenced? 238.Nonetheless, for the two projects in question, the objective fact remains that the minutes do show that the management committee passed the resolutions unanimously. Furthermore, for the lift project, the plaintiff explained that Holake was in charge of the project and its advice was that an owners’ meeting was not necessary. This explanation is on its face plausible. 239.When the plaintiff’s case is taken as a whole, it is on its own credible. Secondly, the defendants’ evidence is rife with inconsistencies and their case is at times incoherent 240.By comparison, the defendants’ evidence is rife with inconsistencies and, worse still, internal contradictions. None of them were able to put forward any good explanation to account for these inconsistencies and contradictions. They are so prevalent and are of such a serious degree that I do not find it possible to give weight to their evidence. 241.As is clear from the recount of the parties’ respective cases, the defendants’ case contradicts and is inconsistent with the minutes of the management committee meetings. A general theme running through the defence is that some of these minutes are inaccurate or did not fully reflect the discussion which took place at the meetings, including, more specifically, the views expressed by members which were different or in opposition to the plaintiff’s. In cross-examination, the defendants did make the point on a few occasions that since they participated in these management committee meetings on a wholly voluntary basis, they would not devote too much time to review or follow up on the minutes. And that partly explains, they say, why they did not take issue with, or raise objection to, those inaccurate minutes. (They also suggested that since the plaintiff would not listen, it would be useless to do so.) 242.That explanation, on its own, is inherently plausible and, as a matter of analysis, should not be dismissed out of hand. This is because it is an objective fact that members of the management committee worked in such capacity voluntarily, devoting their own time without any monetary compensation. The fact that the defendants did not always follow up on the minutes is perhaps understandable. If that explanation is accepted, the discrepancies between the defendants’ testimony and what were recorded in the minutes can be accounted for. 243.However, what remains inexplicable is that the inaccuracies, now so forcefully alleged by the defendants while testifying in the witness box, were not mentioned in their written witness statements. This is so even when some of the minutes were exhibited to their own witness statements. For example, the 2nd defendant exhibited the minutes of the following meetings: the 4th meeting of the 13th term and the 5th and 8th meetings of the 14th term. 244.If the defendants truthfully believed that there were inaccuracies in the minutes, one would expect them to at least point them out when those minutes were exhibited to their written statements. After all, the minutes are important contemporaneous documents which the court would take into account when resolving the material factual disputes between the parties. The defendants were all silent in their written statements about the inaccuracies in the minutes. This seriously undermines the credibility of their present allegation that the minutes were inaccurate. 245.Furthermore, the defendants’ evidence is tainted with inconsistencies, discrepancies and at times contradictions. I set out below some of the more notable examples in respect of each of the defendants. 246.As regards the 1st defendant, his testimony concerning the floor paint incident contained perhaps one of the most glaring contradictions in his evidence. In his witness statement, he expressly said that (a) in a management committee meeting, the plaintiff proposed that the floors of the entire building be re-painted; (b) at that meeting, the 1st defendant and some other members objected as this would not bring about any benefit; (c) nonetheless, because of the plaintiff’s insistence, it was resolved that one floor be re-painted as a test; (d) the result was not satisfactory but the plaintiff had already purchased enough paint to re-paint all 16 floors; and, (e) in the end, the paint had to be returned to the supplier at a discount. (The original extract in Chinese appears in para 182 above.) 247.This narrative contains a detailed account of the alleged wrongdoing of the plaintiff and why the 1st defendant felt aggrieved by the plaintiff’s improper action. However, this account is flatly contradicted by the minutes of the 4th meeting of the 13th term held on 16 March 2012. The extract of the minutes is set out in para 67 above. It showed that the committee discussed this topic at some length, with members sharing their different views on the matter. Contrary to the 1st defendant’s version, the plaintiff suggested that the second and fourth floors be tried out first and it was indeed the 3rd defendant who counter-suggested that in fairness, the whole Building should be re-painted. 248.When this contradiction was put to the 1st defendant, he then changed his answer and said that he once came across the plaintiff in the lobby or the lift of the Building and that was when the plaintiff proposed that the floors of the whole building be re-painted. He then added that there was a subsequent meeting in which this was raised by the plaintiff. But the subsequent minutes did not show such discussion. 249.In any event, the resolution referred to in the 1st defendant’s witness statement is nowhere to be found in any of the minutes disclosed in this action. When asked about this, he simply said he did not know why. 250.Counsel then asked him whether his written evidence in this regard, namely that there was a resolution to try out one floor only, was untrue. The 1st defendant denied that to be the case. 251.In my view, there is simply no explanation for the contradiction. The 1st defendant put forward a positive case in detail in his witness statement, which is irreconcilable with the detailed records made in the contemporaneous minutes. The 1st defendant’s evidence then shifted incoherently. All these cast a very negative light on the reliability and credibility of his evidence. 252.Another notable example is his evidence in his witness statement that since the end of the 13th term, the plaintiff had not listened to different views of others and at the beginning of the 14th term, two dissatisfied members resigned. One of them was Wong Kim Ping. 253.However, the background fact is that Wong Kim Ping did not even stand to run as a member for the 14th term. It is clear that the 1st defendant’s witness statement contained a factual error. 254.When the error was pointed out to him, the 1st defendant then said that Wong Kim Ping resigned at the end of the 13th term. 255.It is true that this error was not as serious as the one concerning the floor painting. Yet, this kind of error does contribute to the overall impression that his evidence cannot stand up to scrutiny. 256.The 2nd defendant’s evidence is probably in the worst shape among the four of the defendants in terms of reliability and credibility. There were more inconsistencies within his evidence than in the other defendants’. 257.In his witness statement, he made the same (and wrong) allegation about the resignation of Wong Kim Ping at the beginning of the 14th term as in the 1st defendant’s witness statement. In cross-examination, instead of frankly accepting that he had made a factual error, the 2nd defendant insisted that although Wong Kim Ping did not run for the 14th term, the 2nd defendant felt, as a matter of perception, that Wong Kim Ping did resign. This reaction is incomprehensible and goes to cast doubt on the overall reliability of his testimony. 258.Stranger still, the 2nd defendant alleged in his witness statement that the 3rd defendant resigned as the treasurer of the 14th term. However, it is not in dispute that the 3rd defendant was only a member, not the treasurer, in the 14th term. Hence it would not be possible for him to resign as treasurer. In fact, in the 3rd defendant’s cross-examination (which preceded the 2nd defendant’s), the 3rd defendant admitted as much. When these were pointed out to the 2nd defendant, he refused to accept all these and even claimed that the 3rd defendant was confused on the issue and the 2nd defendant had a better idea. As a matter of common sense, this allegation must be rejected. It also shows that the 2nd defendant would insist on the truth of statements which had been clearly proved wrong. This has made it difficult for the court to give weight to his testimony in general. 259.In his witness statement, the 2nd defendant also made the same allegation concerning what had been discussed and resolved with regard to floor painting at a management committee meeting. In cross-examination, he was first shown the minutes of the 4th meeting of the 13th term held on 16 March 2012 which contained the relevant resolution. The 2nd defendant reiterated what he said in the witness statement, namely that he, together with some other members, had objected to re-painting all the floors. It was then pointed out to him that he was absent at that meeting, as shown in the attendance list in the minutes. He was of course then challenged on the issue of how he could possibly have objected if he was not present at the meeting. He then claimed that there should be another meeting in which he raised the objection. He was indeed very sure that he was present at the meeting in which the issue of floor painting was discussed. Overall, his evidence on this point was inconsistent and incoherent. 260.His evidence on floor painting suffered from the same inconsistency as the 1st defendant’s evidence when it comes to the allegation that the plaintiff had proposed that all the floors be re-painted when the minutes showed that he proposed to re-paint only two floors. The second defendant’s explanation for the inconsistency was different from the 1st defendant’s. He insisted that the two versions were effectively the same. This explanation was perplexing in the extreme and must be rejected as untrue. 261.The 2nd defendant’s evidence in respect of the contents of the resolution regarding the LED replacement project was also self-contradictory. In his witness statement, he stated that it had been resolved that all the LED light tubes be replaced. However, in cross-examination, he said instead that it had been resolved that the light tubes would be replaced only when broken. 262.Here, the evidence relates to what had been resolved at the meeting. It is a purely factual matter. Yet, the 2nd defendant put forward contradicting versions in his written and oral evidence. When the contradiction was put to him, he gave evasive and incoherent replies. 263.When a witness signs a witness statement, he also signs a statement declaring the truth of its content. Oral evidence at court is given under oath. At one point in the 2nd defendant’s oral testimony, having gone through some apparent inconsistencies in his evidence, Mr Ng pointed out to him the statement of truth which he had signed. The 2nd defendant said that he considered the statement of truth to be a minor matter and that he was not good with words. 264.Overall speaking, the 2nd defendant gave the distinct impression to the court that the truth or accuracy of his evidence was not a prime concern for him as a witness. As such, it is simply not possible to give much weight to his evidence. 265.The 3rd defendant made a number of new allegations for the first time in cross-examination. For instance, he claimed that the plaintiff had threatened to sue the other members of the management committee at meetings if they said anything improper. This allegation, if true, would corroborate the defendants’ stance that the plaintiff adopted a unilateral management style as chairman of the management committee. In other words, it would be a strong piece of evidence which one would expect the 3rd defendant to put into his witness statement. The fact that he did not begs the question as to whether it was something that he made up in the witness box. 266.Mr Ng submitted that the 3rd defendant had failed to address a number of issues in his witness statements, eg, in relation to the lift improvement project and the floor painting issue, and only gave evidence on those issues for the first time when cross-examined. When asked why he failed to address the issues in his witness statement, he alleged that he did not want to waste time in writing a long witness statement. This explanation was puzzling as it must have been clear to the 3rd defendant that the purpose of the witness statement was to lay out all relevant and material facts before the court. And if it would add length to the witness statement, that would still have to be done. His explanation was unconvincing. 267.The 4th defendant is in his early 80’s and is the eldest among the defendants. When assessing his evidence, some allowance may need to be given in the sense that the inaccuracies or discrepancies in his evidence may be partly accounted for by his old age. Nonetheless, even bearing that in mind, I consider that not much weight can safely be given to his evidence. 268.In his witness statement, he stated that he was educated up to secondary school level and can read and write Chinese. However, at the beginning of the cross-examination, he said that that statement was false and that he had never studied at school. The mistake is not understandable. One must wonder why a fundamental mistake like that could have been made and one would naturally then wonder how reliable the rest of the witness statement could be. 269.A more substantive example which illustrates the unreliability of the 4th defendant’s evidence is his stance on the Adjourned Owners’ Meeting. 270.In his witness statement, he stated that he was present at that meeting, three matters were discussed and the plaintiff apologised for his wrongdoing while he was chairman. The original extract in Chinese appears in para 220 above. 271.This topic was explored in his cross-examination. Contrary to his unequivocal allegation in the witness statement, he said that he could not even remember whether he in fact had attended the Adjourned Owners’ Meeting and he could not recall what had happened at that meeting. He later added that due to the long lapse of time, he had no clear recollection but someone might have told him about the meeting. 272.On the whole, the defendants’ evidence is so tainted with inconsistencies, discrepancies and contradictions that its reliability and credibility is severely undermined. Findings of facts 273.For the above reasons, I prefer the plaintiff’s evidence to the defendants’ where they are in conflict or are inconsistent and I reject such part of the defendants’ evidence accordingly. I accept the plaintiff’s factual case, as set out above, on the whole. 274.More specifically, I find that the allegations made in the first letter concerning the various projects carried out in the Building and the management issues arising in the 13th and 14th term of the management committee were untrue. These allegations are set out in paras 31, 44, 55, 71, 75, 82 and 88 above. I find that the minutes of the meetings of the management committee disclosed in this action and relied on by the plaintiff are accurate records of the meetings. As shown in these minutes, the projects and the managements issues, which the defendants complained about, were discussed at the meetings. Resolutions were passed by the management committee as a whole, as recorded in the minutes. I accept the plaintiff’s evidence and find that throughout the two terms and before the publication of the first letter, the defendants had never raised those complaints which they made in the first letter. I also find that the allegations made in the first letter concerning the plaintiff’s conduct in the election were untrue. The allegations are set out in paras 92 and 93 above. 275.I further find that the defendants did not honestly believe in the allegations or were reckless as to their truth at the time of the first letter. They, or at least some of them, had participated in the meetings in which the projects and the management issues were discussed and the relevant resolutions were passed. They therefore could not have honestly believed that the allegations were true or they did not care whether they were true or not but nonetheless went ahead to make them. 276.As regards the allegations made in the second letter, I find that the allegations concerning the events which took place at the Original Owners’ Meeting and the other allegations against the plaintiff were untrue. I further find that the 2nd defendant did not honestly believe in the allegations or was reckless as to their truth at the time when he issued the second letter. I accept the plaintiff’s case set out in paras 100 1o 110 above. 277.As regards the various allegations made against the plaintiff by the defendants in the course of these proceedings, I reject those allegations. See, eg, the allegations set out in paras 49, 65, 84, 99, 120(a) and (c), 133, 135 and 136 above. 278.I also hold that the dominant motive of the defendants in publishing the first and second letters was to harm the plaintiff and attack his integrity in the run-up to the general election. This is a clear inference that can be drawn from all the surrounding circumstances. They wrote the first and second words which contained a wide range of serious and damaging allegations. Violent and aggressive language was used when they did not honestly believe in the words or were reckless as to their truth. DISCUSSION 279.On the facts as found, I shall proceed to consider the following issues:-
Publication 280.No civil action can be maintained for libel unless the words complained of have been published. In order to constitute publication, the matter must be published by the defendant to a third party, that is to say, at least one person other than the plaintiff. Since publication to one person will suffice, it is clearly not necessary that there should be a “publication” in the commercial sense, though the scale of the publication will of course affect the damages: Gatley on Libel and Slander, 12th ed at para 6.1. 281.It is not necessary in all cases to prove that the libellous matter was actually seen and read by some third party. If it is a matter of reasonable inference that this happened, a prima facie case of publication will be established: Gatley at para 32.8. 282.On the facts as found, the first and second letters were inserted into the letterboxes of the owners of the Building (except the units owned by Season Yield). In addition, the second letter was posted on the notice boards in the Building. As such, the reasonable inference to draw is that they had been seen and read by at least some of the owners. I hold that the letters were published. Reference to the plaintiff 283.The plaintiff contends that the first letter refers to him since his Chinese name was expressly referred to in the first, second and third paragraphs. He was also expressly referred to in his capacity as the chairman of the IO in those paragraphs. 284.Similarly, he says that the second letter also refers to him since his Chinese name was stated and he was expressly referred to in his capacity as the chairman of the IO in the second paragraph. 285.The test is whether the words might be understood by reasonable people to refer to the plaintiff, subject to the qualification that where the words are published to persons who have special knowledge the issue will be decided by reference to what reasonable persons possessing that knowledge would understand by them: Gatley at para 7.1. 286.Here, the plaintiff was referred to by name and by reference to his position as the chairman of the IO in both the first and second letters. The letters were published to the owners of the Building. It is clear that the owners would reasonably identify the plaintiff from the words used. 287.More specifically, in the first letter, in the sentence “有人無所不用其極，運用權力，以偷步封殺的不法行為，指使管理處作為其個人競選總部” (underline added), insofar as there is any dispute as to who the words “有人” referred to, it is reasonably clear that they referred to the plaintiff, given that later on the words “其個人” were used. Accordingly, the two references must have been to the same person. And since there was only one candidate apart from the 1st defendant, “有人” must have been a reference to the plaintiff. 288.In their amended defence, the defendants deny that the first and second words referred, or were understood to refer, to the plaintiff. Notwithstanding the denial, Ms Fong accepted in closing submissions that the letters referred to the plaintiff. 289.Hence I hold that the words were published of the plaintiff. Meaning 290.In determining the meaning, words of an article are normally construed according to their natural and ordinary meaning. The meaning is the one which the words would convey to the mind of an ordinary, reasonable, fair-minded reader. The article must be read as a whole. The context and circumstances of the publication must be taken into account. In some circumstances, the defamation does not lie in the actual words used, but in an inferential or implied meaning that the words are capable of bearing without the need to have recourse to extrinsic facts: see, eg, BaWang International (Group) Holding Ltd v Next Magazine Publishing Ltd HCA 1190/2013, 23 May 2016, paras 26-33. 291.In her closing submissions, Ms Fong said that she had no submission to make on the issue of meaning. 292.The first and second words contain plain and explicit language. They clearly convey to a reasonable reader the meanings pleaded by the plaintiff. The words really speak for themselves. For instance:-
293.I hold that the first and second words bear the meanings pleaded by the plaintiff, as set out in paras 17 and 19 above. Is the pleaded meaning defamatory? 294.It is generally accepted that an imputation is defamatory if it exposes the plaintiff to contempt and ridicule by others and cause others to shun him. It is also defamatory if it lowers the plaintiff’s estimation in the eyes of right-thinking members of society and adversely affect his reputation: see, eg, BaWang at para 24; Gatley at paras 1.7, 2.1. 295.It has also been said that an imputation is defamatory if it involves imputation of what is “illegal, or unethical or immoral, or socially harmful”. Even “imputations which are less serious than that” may be defamatory, so long as it would “deter third persons from associating or dealing with him”: Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, para 34, per Tugendhat J. 296.At closing, Ms Fong said that she had no submission to make on whether the pleaded meanings are defamatory. 297.It is clear to me that the words, which bear the pleaded meanings, are highly defamatory of the plaintiff. According to the words, the plaintiff was engaged in illegal, improper and unethical conduct in the election campaign. Furthermore, his management of the IO was said to be seriously deficient. These allegations would no doubt hurt the plaintiff’s reputation. Qualified privilege 298.Where a communication is made by someone with an interest in the subject-matter to someone who has a corresponding interest in receiving the communication, it is made on a privileged occasion. Such a situation is often referred to as one in which the parties have a common interest. A publication made on a particular occasion may even be privileged notwithstanding that the person was acting solely in pursuit of his own interests, provided that the communication is made to someone who has a legitimate interest to receive the communication: Gatley at para 14.45. 299.In the context of communication made between owners of a building in Hong Kong, it has been recognised that there is a common interest among the owners with regard to matters relating to the affairs of the building: Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at para 69; Yiu Shing Yin v Kwok Yik Ho DCCJ 4437/2016, 28 March 2018 at para 72. 300.In the present case, the first and second letters were issued during the time leading up to the election of the management committee of the 15th term. The content of the letters was directed at the plaintiff’s management of the Building during the past two terms and his suitability as the chairman for the new term. I hold that the first and second letters prima facie constituted communication made on an occasion of privilege. 301.Publication must be proportionate to the necessity of the occasion. As a general rule, a defendant should be careful to make his communication only to those persons who have a legitimate interest or duty in relation to the subject-matter: Gatley at para 14.69. 302.However, provided that the publication does not go beyond the exigency of the occasion, the mere fact that the defamatory matter is communicated to persons who have no legitimate interest in its subject-matter will not avoid the privilege: Yiu Shing Yin at paras 80 and 82. 303.The plaintiff contends that as regards the second letter, copies were also posted on the notice boards on each floor of the Building. It would be inevitable that any visitors to the Building would be able to read them. However, the visitors clearly would not have any interest or duty to know or be made known of the matters contained in the second letter. Such indiscriminate publication was therefore unjustifiably wide. 304.Here, I have found that copies of the second letter were posted up on the notice boards on each floor of the Building. It can be inferred that outsiders would be able to read it and might do so. The notice boards are one common method by which communication to owners is made. That was a reasonable means for the 2nd defendant to use for communicating the second letter with the owners. I consider that the posting up was proportionate. Notwithstanding that it has the drawback of being open for viewing by outsiders, that by itself does not take the communication outside of the privilege. 305.Hence, prima facie, the defendants are entitled to raise the defence of qualified privilege in respect of the first and second words. The real bone of contention turns on whether the defence would be defeated by malice, as alleged by the plaintiff. 306.The principles governing the role of malice in the defence of qualified privilege are authoritatively set out in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, paras 17-24:-
307.The burden rests on the plaintiff to prove malice. He needs to demonstrate that the dominant purpose for which the defendants published the first and second words was one other than the purpose for which the communication was privileged. 308.The notion of “recklessness” referred to in the authorities means “without considering or caring whether it be true or not”. Whether the defendant was reckless is a matter of inference from the circumstances, which can include not only what the defendant said or did, but also what he did not do: Lu v Chan at paras 22-23. 309.Malice can be inferred from the defendant’s conduct at any time, whether before or after publication. His actions during the course of litigation and his demeanour and attitude at trial may be relied upon as indicative of malice. The pleading of the defence of justification may be evidence of malice but it is probably only applicable where the defence is put forward recklessly, or with knowledge that it is unsustainable: Lee Ching v Lau May Ming [2007] 3 HKLRD 623 at para 201. 310.Overt hostility displayed by the defendant towards the plaintiff may also indicate malice. Where the defendant has lied whilst giving evidence, it may support a finding of malice but caution should be exercised in this regard: Lee Ching at paras 203-204. If a party verifies a pleading which he does not believe to be true, that will be potent evidence of malice: Gatley at para 32.45, footnote 200. 311.In essence, the plaintiff says that the first and second words were published with malice:-
312.I accept the plaintiff’s submissions. In the present case, the lack of honest belief in, or recklessness as to the truth of, the first and second words on the part of the defendants is conclusive evidence that they did not make the communication for its proper purpose. I have found that the defendants’ dominant motive was to harm and injure the plaintiff. Malice is thus established. 313.In the context of an incorporated owners, the defence of qualified privilege affords protection to an owner against liability for libel if he makes the communication for the genuine purpose of sharing information with his co-owners with regard to the management affairs of the building. If an election is coming up, it is in the common interest of all the owners that they are informed of the past performance of the candidates. 314.A common theme running through the defendants’ testimony, though expressed in different ways, was this. The plaintiff chose to put himself forward for the position of chairman. All owners, themselves included, were entitled to comment on the plaintiff’s past performance and make public and criticise his wrongdoing so that the owners could make an informed choice of who (or who not) to vote as the chairman for the new term. 315.The defendants’ view is given recognition in the law of defamation. Such communication is regarded as given on a privileged occasion as it was made for the purpose of sharing information which the owners had a common interest to know in the run-up to the election. However, that does not mean that the defendants could say whatever they wanted with no consequence. The communication would only be privileged if it was made for the proper purpose. Here, the defendants held no honest belief in what they were communicating or they did not care whether the words were true or not. In fact, their motive was to injure the plaintiff and attack his integrity. They are therefore not entitled to the protection which would otherwise be available to them on such an occasion. Their defence of qualified privilege must fail. Fair comment 316.In a defence of fair comment, a defendant needs to meet five elements (Cheng v Tse Wai Chun (2000) HKCFAR 339, paras 347A-348A; Gatley at para 12.2):-
317.In the context of fair comment, a defendant cannot avail himself of the defence if he did not genuinely hold the view he expressed. Honesty of belief is the cornerstone. The defendant might have made the comment out of some other motive, such as spite, animosity, intent to injure. Even if it is the dominant or sole motive, that does not by itself defeat the defence: Cheng v Tse at 360I-J; Gatley at para 12.36. 318.Malice may be evidenced in a number of ways. For instance, a deliberate failure to mention known exculpatory facts may suggest that the defendant did not genuinely hold a stated opinion: Gatley at para 12.36. 319.Mr Ng’s primary contention is that the defendants have failed to spell out in their amended defence, with sufficient precision, the comment which they say attract the fair comment defence. As such, the plaintiff has no inkling as to what case he is supposed to meet: Mak Shiu Tong v Yue Kwok Ying (2004) 7 HKCFAR 228, para 24. 320.Also, parties disagree on whether the five elements of the defence are made out. For instance, whether communication between owners in respect of the affairs of an incorporated owners or a building falls within a matter of public interest. Counsel have not been able to find any authorities either for or against this proposition. 321.In any event, it is unnecessary to examine the five elements in this case. Even assuming that the five elements are satisfied, the defence of fair comment will be defeated by malice. I have found that the defendants, at the time of the first letter, and the 2nd defendant, at the time of the second letter, held no honest belief in the truth of the allegations made in the respective letters or did not care whether they were true or not. As such, they cannot now rely on the defence of fair comment. 322.None of the defence is made out. I hold that the 1st to 4th defendants are liable for libel in respect of the first words and the 2nd defendant the second words. Quantum 323.As a matter of general principle, in cases of libel, a plaintiff is entitled to look to an award of damages sufficient to vindicate his reputation according to the seriousness of the defamation, the range of its publication and the extent to which the defendant has persisted with the charge: Gatley at para 9.4. 324.The plaintiff is entitled to general damages in respect of the first and second words. Mr Ng highlighted a number of material factors when assessing quantum.
325.The plaintiff asks for $300,000 as general damages for each of the first and second words. Mr Ng cited a number of authorities, which facts are comparable to the present case. They included Chan Iu Seng v Ko Choi Hin HCA 2901 and 2935/2004, 28 January 2010; Mok Kam Kwai v Lam Mo Fat HCA 1868/2010, 6 March 2014; and, Lo Sam Shing v Li Fong HCA 1803/2011, 14 March 2014. Ms Fong said nothing on quantum in her written submissions at all. 326.On the whole, having considered the authorities, I accept Mr Ng’s submissions and award the full sum of $300,000, as claimed, in respect of each of the words. 327.As regards the claim for aggravated damages in the sum of $200,000 in respect of each of the words, it should be borne in mind that such claim is part of the compensatory award and may be granted to compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way: Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 at paras 112-113; Gatley at para 9.18. 328.Mr Ng submitted that the court should take into account the fact that the defendants persisted in contesting the claim up to the very end and maintaining the defence of justification up until the lodging of their opening submissions and that they failed to apologise to the plaintiff notwithstanding the demand letters. 329.I agree that the plaintiff should be entitled to aggravated damages. I allow his claim in full in the sum of $200,000 in respect of each of the words. CONCLUSION 330.I order that there be judgment in favour of the plaintiff in the sum of $500,000 in respect of the first words against the 1st to 4th defendants and there be judgment in the sum of $500,000 in respect of the second words against the 2nd defendant, in each case with interest at judgment rate from the date of writ to payment. 331.I also make an order nisi that the 1st to 4th defendants do pay the plaintiff’s costs of the action, to be taxed if not agreed, with certificate for one counsel.
Mr Lawrence KF Ng and Mr Victor Lui, instructed by TH Koo & Associates, for the plaintiff Ms Candy Fong, instructed by Wong & Co, for the 1st to 4th defendants |
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