Chan Harry Hung-hay v. Yip Sui Ping

HCA 2149/2015

[2020] HKCFI 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2149 OF 2015

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JUDGMENT

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INTRODUCTION

1.This is the hearing for assessment of damages suffered by the Plaintiff in respect of an action for libel.

2.By an interlocutory default judgment dated 13 September 2017 (“Interlocutory Judgment”), judgment was entered against the Defendant on liability with damages to be assessed and costs to be taxed.

3.The Defendant was all along unrepresented.  She also did not appear at the hearing for assessment of damages. 

4.Upon reading the affirmation of service provided by the Plaintiff, I was satisfied that the Defendant was notified of the present proceedings and that it was expedient for the hearing to proceed.  In the circumstances, the hearing proceeded in her absence.

BACKGROUND

5.The present dispute arose in a building management context.  

6.Hong Kong Mansion (“Hong Kong Mansion”) is a building situated at No. 1 Yee Wo Street, Causeway Bay, Hong Kong.  It was built in 1965 and has approximately 1,000 residents. 

7.In 1982, the owners of Hong Kong Mansion incorporated and established the Incorporated Owners of Hong Kong Mansion (“IO”). 

8.Since 2004, the Plaintiff (an estate agent by profession) has been serving as the Chairman of the Management Committee (“MC”) of the IO.  He has been re-elected to that position every 2 years since 2004.  He is still the Chairman of the MC.

9.The Defendant was employed as the IO’s account book-keeper between 2004 and June 2015. 

10.Since around mid-2014, disputes have arisen between the Defendant and the IO.  These disputes concern the Defendant’s conduct in the course of her employment.  As a result, some correspondence was exchanged between the parties.  For present purposes, it suffices to note that this led to the IO’s decision not to renew the Defendant’s employment contract after its expiry on 30 June 2015. 

     The Offending Letter

11.The subject matter of the present proceedings is a letter dated 6 July 2015 (“Letter”).  The Letter was issued a few days after the Defendant’s employment at the IO ended on 30 June 2015. 

12.On the face of the Letter, it was addressed to the Plaintiff (as the Chairman of the MC of the IO), two other members serving as secretary and treasurer of the MC respectively, and all other members of the MC.  

13.The Letter was signed by the Defendant.  Right next to her signature is her name and former job title (“會計員 葉瑞萍”) in print form. 

14.The Letter contained the following passages (respectively, “1^st Offending Words” and “2^nd Offending Words”): 

(a)     The 1^st Offending Words:

“那就是陳鴻禧先生的身體狀況似乎出現了很不妙的問題，這可以從他表現在同樣一個問題或一件事（而且可以說是大事）前後不到6個月，一般人是不容易遺忘的，可他居然可以忘得一干二淨，這種病情若是繼續發展下去，就可能出現今天的事明天忘記，甚至剛剛說的話或做過的事，轉頭就有可能馬上忘記，畢竟他已是個70多歲的老人了，得這種病也不出奇。”

(b)     The 2^nd Offending Words:

“只是我真替香港大廈的各位業主擔心，將大廈管理的重任交給這種精神狀態不佳的人來管理，不知是福還是禍？當然，這只是我個人的懷疑而己，希望情況沒有這麼嚴重吧!”

15.According to the Plaintiff, in their natural and ordinary meaning, the 1^st Offending Words and the 2^nd Offending Words (together “Offending Words”) meant and were understood to mean all or any of the following: 

(a)     the Plaintiff’s “physical condition is poor”, and is “suffering from a disease of an old man over 70”;

(b)     the Plaintiff was or is “suffering from amnesia”; and

(c)     the Plaintiff’s mental state is “not good to manage Hong Kong Mansion”.

16.Furthermore, the publication of the 1^st Offending Words as contained in the Letter has:

(a)     “gravely damaged” the “character, credit, leadership and reputation” of the Plaintiff in relation to his position as an elected Chairman of the IO;

(b)     exposed the Plaintiff to “scandal, ridicule and contempt in building management affairs” both in Hong Kong Mansion and the neighbourhood and “caused him considerable mental distress and embarrassment”; and

(c)     lowered the estimation on the Plaintiff in the minds of “right thinking of the committee members and some apartment owners” in Hong Kong Mansion.

17.As to the 2^nd Offending Words, the Plaintiff claims that it has caused a “derogatory impact” on the Plaintiff’s “reputation and pride” in “managing the problematic Hong Kong Mansion”. 

18.Based on the above, the Plaintiff claims that the Letter is defamatory and holds the Defendant liable thereof.

     Commencement of Proceedings

19.On 24 August 2015, the Plaintiff issued a letter to the Defendant, demanding an open apology from the Defendant. 

20.On 30 August 2015, the Defendant issued a letter in reply to the Plaintiff.  In essence, the Defendant denied liability and continued to assert the truthfulness of the Letter. 

21.Noting the Defendant’s response, the Plaintiff commenced the present action on 15 September 2015.  The Plaintiff also filed his Statement of Claim, prepared by himself as a litigant-in-person.  

22.The Plaintiff later received legal representation and amended his Statement of Claim.  By his Amended Statement of Claim dated 11 January 2017, the Plaintiff seeks the following reliefs:

(a)     An injunction restraining the Defendant from (amongst others) publishing the Offending Words or any defamatory words of similar effect.

(b)     A “mandatory order” requiring the Defendant to “publish an apology in such terms and manner as the Court deems just”.

(c)     Damages.

(d)     Exemplary and/or aggravated damages.

23.No notice of intention to defend was given by the Defendant.  Eventually, the Interlocutory Judgment was entered against the Defendant on 13 September 2017.  As noted in paragraph 2 above, the Interlocutory Judgment only determined the Defendant’s liability, with damages to be assessed and costs to be taxed. 

24.Meanwhile, the Plaintiff abandoned his claim for an injunction and for the “mandatory order” as described in paragraph 22 above. 

     Assessment of Damages

25.The matter has now come before me for assessment of damages. 

26.In terms of evidence:

(a)     The Plaintiff has filed a witness statement dated 8 May 2019 which he adopted as his evidence in chief at the hearing. 

(b)     The Defendant has not filed any witness statement.  As noted in paragraph 3 above, she did not attend the hearing.  

27.At the hearing, Ms Joyce Lee, Counsel for the Plaintiff, asked for aggregate damages (including both general and aggravated damages) to be assessed in the sum between HK$100,000 and HK$200,000. 

THE LEGAL PRINCIPLES

28.In assessing damages, I am guided by the following principles. 

29.General damages awarded for libel are compensatory in nature: see Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 at §35 per Ribeiro PJ. 

30.An award of general damages serves a “threefold function”.  In Oriental Daily at §35, Ribeiro PJ endorsed the observations of Sir Thomas Bingham MR (as he then was) in John v MGN Ltd [1997] QB 586 at 607 that:

“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused.”

31.In assessing damages, the Court must consider all the relevant circumstances of the case.  It is not possible to list exhaustively all the circumstances that may bear on the assessment.  Meanwhile, some of the important circumstances are highlighted by Sir Thomas Bingham MR in John v MGN Ltd at 607 (which are in turn endorsed in Oriental Daily at §39):

“In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should 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.”

32.Additionally, I note the observations of To J in Lo Sam Shing v Li Fong(unrep, HCA 1803/2011, 14.3.14) at §140, where the learned Judge endorsed the following remarks of Tugendhat J in Downtex v Flatley [2004] EWHC 333 QB at §26:

“Publication to a relatively small number of persons who are already in a business or professional relationship with a claimant may be as serious or worse than a wider publication to persons who are not, and are unlikely to contemplate being, in such a relationship…”

33.At the end of the day, however, general damages are “at large” in the sense that they cannot be assessed by reference to any mechanical, arithmetical or objective formula: see Gatley on Libel and Slander (2013, 12^th Edn) at §9.5. I must therefore consider the specific facts arising from this case, instead of making rigid assessments on quantum.  

34.An award for aggravated damages is distinct from that of general damages.  In Oriental Daily at §§112-113, Ribeiro PJ explained that:

“112.  Aggravated damages are 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.”

113.  In McCarey v Associated Newspapers Ltd (No 2), Pearson LJ gave as examples of such aggravating conduct:

“... any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff's pride and self-confidence...””

35.In the same judgment, Ribeiro PJ went on to observe at §130 that:

“…It is important that one does not lose sight of the purpose for which aggravated damages are awarded, namely, as compensation for injury to feelings caused by the defendant’s post-publication conduct. The authorities give as relevant examples high-handed, oppressive, insulting or contumelious behaviour in the conduct of the case. One sees at once that a causal connection exists between that kind of conduct and aggravated injury to the plaintiff’s feelings. The conduct must be of a kind that rubs salt into the wound…”

36.In addition to the above, Ms Lee has also referred me to the following passage in §9.18 of Gatley:

“…[I]t is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride…”

GENERAL DAMAGES

37.With the above in mind, I now turn to the assessment exercise.  

     The Plaintiff’s Reputation

38.According to the Plaintiff’s evidence:

(a)     Before the Plaintiff took position as the Chairman of the MC of the IO, Hong Kong Mansion was well known for having many problems with its management.

(b)     As the Chairman, the Plaintiff worked hard to solve the above issues.  Within a few years after the Plaintiff took up this role, the problems had largely ceased. 

(c)     The Plaintiff was therefore well respected by the residents of Hong Kong Mansion and the members of the MC. 

(d)     Due to his reputation and ability, the Plaintiff was also often asked by management committees of nearby buildings to assist them in solving their problems as well. 

39.The Plaintiff’s evidence is unchallenged and which I accept as the facts.  I therefore accept that the Plaintiff has a reputation that should be afforded with the Court’s protection.

     The Gravity of the Libel

40.As noted above, the Plaintiff is the MC Chairman of the IO.  

41.Ms Lee submits that the Plaintiff was defamed in such capacity.  She also stresses that the Plaintiff has built up his reputation for over a decade and was well respected by his community. 

42.I accept that the libel in this case touches upon the Plaintiff’s mental condition and fitness to manage the IO.  However, I do not consider that this is one of the most serious cases of its kind.  The allegations in the Letter, for example, did not question the Plaintiff’s honesty, integrity or trustworthiness.  There were also no accusations that the Plaintiff had acted in breach of trust or had taken advantage of his position as the Chairman. 

43.I shall bear in mind the above when assessing the quantum of damages. 

     The Extent of the Publication

44.The Plaintiff’s evidence is that the Defendant put copies of the Letter into the mailboxes of the 13 members of the MC (including himself).  The Defendant also put copies of the Letter into at least 10 mailboxes of other residents of Hong Kong Mansion, and left one copy in the management office for reading by the management staff. 

45.The Plaintiff says that he personally witnessed the aforesaid distribution. 

46.As noted in paragraph 12 above, the Letter was addressed to the MC members.  I accept the Plaintiff’s evidence that the Defendant put the Letter into the mailboxes of the MC members. 

47.Furthermore, since this dispute is ultimately concerned with the management of Hong Kong Mansion, it is logical to infer that the Defendant may also want to draw the attention of other residents to this matter.  In the absence of any denial or contrary evidence from the Defendant, I accept the Plaintiff’s account that the Defendant put copies of the Letter into the mailboxes of other residents of Hong Kong Mansion.  I also accept the Plaintiff’s account that a copy of the Letter was left in the management office.  

48.Overall, I accept that the Letter was published in the manner as alleged by the Plaintiff. 

49.Having said that, such publication is limited to the residents and/or management staff of Hong Kong Mansion.  There is no evidence that the Defendant published the Letter elsewhere (for example, in the other buildings which the Plaintiff assisted in managing).  There is also no evidence of secondary publication of the Letter. This is therefore not a case where a defamatory statement has been published in a public and widespread manner (such as cases involving defamation through newspapers). 

     Effect of the Letter on the Plaintiff’s Reputation

50.As to the effect of the Letter on the Plaintiff’s reputation, he says that:

(a)     When he was working in the management office of Hong Kong Mansion, sometimes residents would come in and mutter loudly that the Plaintiff was a “busybody”.  That happened around 7 to 8 times in the few months after the Defendant’s publication of the Letter. 

(b)     Whilst the Plaintiff used to have a good relationship with a few other residents who were the Defendant’s friends, these residents refused to talk to the Plaintiff after the publication of the Letter.  

(c)     The relationship between the Plaintiff and other MC members also deteriorated after the publication of the Letter. 

51.The Plaintiff also testified that even as late as one month before this hearing, a man said to him words to the effect that “no wonder people say [sic] there is a problem with you in this part [sic]…you are old and should not work…[You] are not qualified to be Chairman anymore.” 

52.In light of the above, and again, in the absence of any denial or contrary evidence from the Defendant, I accept Ms Lee’s submission that there has been injury to the Plaintiff’s reputation and that he felt humiliated by the Letter. 

53.Nevertheless, the impact of the Letter on the Plaintiff should be put into perspective.  In this regard, I note that: 

(a)     Despite the publication of the Letter in 2015, the Plaintiff has been, on his own evidence, re-elected as the Chairman of the MC and remains in that position.

(b)     The Plaintiff has also not suggested that following the publication of the Letter, the management committees of nearby buildings have stopped asking for his assistance.

     Others

54.As regards quantum of damages, Ms Lee has drawn my attention to a number of cases, including Mok Kam Kwai v Lam Mo Fat (unrep, HCA 1868/2010, 6.3.14), Lo Sam Shing, Lee Ching v Lau May Ming [2007] 3 HKLRD 623 and Chan Iu Seng v Ko Choi Hin & Ors (unrep, HCA 2901 & 2935/2004, 28.1.10). 

55.It seems to me that the situations concerned in these cases are more serious than the present one. 

(a)     In Mok Kam Kwai, the publication concerned the display of banners (measuring several meters long and around one meter tall) in conspicuous public spots against a plaintiff who enjoyed some degree of notoriety in the area of publication.  The court awarded HK$400,000 in general damages.

(b)     In Lo Sam Shing, the defamatory letter impugned the honesty, integrity and competence of the plaintiff as the holder of a public office.  The publication was made to politicians and public figures in the locality, many of whom had business relationships with the plaintiff, during the early stage of the plaintiff’s District Council election campaign.  The court awarded HK$200,000 in general damages and HK$100,000 in aggravated damages. 

(c)     In Lee Ching, the plaintiffs were respectively the vice chairperson and secretary of the board of governors of a charitable organisation.  They were seriously attacked in a letter issued to all members of the organisation as to their personality, integrity and loyalty.  They were each awarded HK$200,000 in general damages and HK$200,000 in aggravated damages.

(d)     In Chan Iu Seng, the court awarded HK$300,000 in general damages.  However, the defamatory circular in question was sent to about 6,000 members of a clan association. The extent of publication was therefore far more serious than the present case.  Furthermore, the libel involved very unpleasant and serious attacks against the plaintiff’s integrity, honesty and propriety in conduct. 

56.In Au Yee Ming Ivan v Ng Fei Tip (unrep, DCCJ 4595/2008, 25.8.10), the plaintiff was the chairman of an incorporated owners of a building.  He was slandered to have taken advantage of his position.  The court awarded HK$15,000 in general damages and HK$10,000 in aggravated damages against the defendant. 

57.However, it seems that the present case concerns circumstances more serious than those in Au Yee Ming Ivan:

(a)     The defamatory “sting” in Au Yee Ming Ivan related to the alleged dereliction of duties and did not touch on any core attributes of the plaintiff.  By contrast, the Offending Words related to the Plaintiff’s age and mental condition, which were the core attributes of the Plaintiff, and served to compound the gravity of the libel. 

(b)     Au Yee Ming Ivan concerned a case of slander, which is more transient in nature than libel in the present case. 

58.Having said that, I have not lost sight of the fact that as I have noted in paragraph 33 above, the damages to be assessed are “at large”.  I do not derive much assistance from a detailed comparison between the facts of the present case with those in the previous cases mentioned above.  In performing the assessment, I will take into account all the circumstances of the present case.

Conclusion on General Damages

59.Bearing in mind all the above matters and taking into account the totality of the circumstances, I assess the Plaintiff’s general damages at HK$80,000. 

AGGRAVATED DAMAGES

60.Besides general damages, the Plaintiff also seeks aggravated damages against the Defendant. 

61.In this regard, the Plaintiff had made inquiries with the Defendant as part of his rightful duties as Chairman of the IO.  Even if the Defendant felt that she had not done anything wrong, that in no way justified her mounting a personal attack on the Plaintiff’s mental wellbeing and disparaging him in his office as Chairman of the IO via the Letter which was addressed to all other members of the MC.  This is particularly so since the Defendant had worked alongside the Plaintiff for a number of years and should have known that her allegations were false. 

62.Further, the Plaintiff had on 24 August 2015 requested the Defendant to make an open apology in relation to the Letter.  However, in her reply letter dated 30 August 2015, the Defendant refused to apologise, insisting that everything stated in the Letter was true.  Worse still, the Defendant suggested that the Plaintiff should be the one apologising. 

63.Bearing in mind all the circumstances, I assess the quantum of aggravated damages at HK$20,000. 

CONCLUSION ON QUANTUM

64.In conclusion, I assess the Plaintiff’s damages as follows:

(a)     General Damages:       HK$80,000.

(b)     Aggravated Damages: HK$20,000.

65.As I shall further explain in paragraph 72 below, the above assessment represents a “global” award, which is inclusive of any claim for pre-judgment interest. 

COSTS

66.Insofar as costs are concerned, the Plaintiff’s costs incurred up to 13 September 2017 have already been determined by the Interlocutory Judgment.  This Court has no jurisdiction to make another costs order covering the same period. 

67.As to the costs after 13 September 2017 (including the costs of and incidental to the assessment of damages), I agree that the Plaintiff should also have his costs. 

68.However, as the Plaintiff has only succeeded in obtaining damages in the total amount of HK$100,000, a question arises as to what should be the appropriate scale for the costs incurred after 13 September 2017. 

69.Generally speaking, in deciding on the appropriate scale of costs, the Court will consider whether the plaintiff, when he or she issued the writ, had a reasonable prospect of recovering a sum in excess of the District Court’s jurisdiction of HK$1,000,000 (currently HK$3,000,000): see Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (No 2) [2011] 3 HKLRD 425 at §§28-30 per Tang ACJHC (as he then was).  In defamation cases, additional considerations may apply as the plaintiff has a prima facie right to trial by jury in the High Court: see section 33A(1) of the High Court Ordinance, Cap 4. 

70.Upon raising the matter with Ms Lee during the hearing, she fairly accepted that the Plaintiff’s costs after 13 September 2017 should be taxed on the District Court scale.  In my view, the concession was properly made, since after the Plaintiff had obtained the Interlocutory Judgment together with costs on 13 September 2017, any realistic option of a jury trial had ceased to exist and the Plaintiff should have applied to transfer the case to the District Court to deal with the remaining issue of damages.  

71.In the premises, I make an order that the Defendant shall pay the Plaintiff’s costs incurred after 13 September 2017 (including the costs of and incidental to the assessment of damages), with certificate for Counsel, to be taxed on the District Court scale, if not agreed.  

INTEREST

72.On interest, I note that the Plaintiff has sought both pre-judgment and post-judgment interest in his Amended Statement of Claim.  However, when making the award of damages in the total amount of HK$100,000, I have already considered all relevant circumstances.  As such, I am not minded to award any interest over the said HK$100,000 between the date of writ and the date of judgment.  

73.I would, however, follow the usual rule for post-judgment interest.  I therefore award interest at judgment rate from the date of this judgment until payment. 

ORDERS

74.Based on the matters aforesaid, I make the following Orders:

(a)     The Defendant do pay the Plaintiff the sum of HK$80,000 as general damages and the sum of HK$20,000 as aggravated damages, with interest at judgment rate from the date of this judgment until payment. 

(b)     The Defendant shall pay the Plaintiff’s costs incurred after 13 September 2017 (including the costs of and incidental to the assessment of damages), with certificate for Counsel, to be taxed on the District Court scale, if not agreed. 

75.I thank Ms Lee for her helpful assistance.

Ms Joyce H Y Lee, instructed by Ng & Co, for the Plaintiff

The Defendant was not represented and did not appear