Yuen Mui Fong v. Lo Kut Chie Alan

HCA 711/2018

[2020] HKCFI 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 711 OF 2018

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JUDGMENT

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A. INTRODUCTION

1.This is the assessment of damages conducted pursuant to the Judgment of L Chan J dated 24 October 2018.  In that Judgment, the defendant is ordered, inter alia, to pay the plaintiff damages to be assessed, including aggravated and/or exemplary damages, for having committed the torts of libel, slander and harassment. 

2.The defendant has not acknowledged service of these proceedings and has never entered appearance in this action. Mr Alex Tsui, of the plaintiff’s solicitors, confirmed with the court that all the relevant papers had been served on the defendant[1]. I was accordingly satisfied that the defendant had been given sufficient notice of these proceedings and it was appropriate to proceed with the hearing notwithstanding the defendant’s absence at the hearing. 

B.      PLAINTIFF’S CASE

3.At all material times, the plaintiff was a schoolteacher at the Tung Wah Group of Hospitals Kap Yan Directors’ College (東華三院甲寅年總理中學) in Sheung Shui, New Territories.  The plaintiff was also the registered owner and resident of 1/F, Block 15, On Kwok Villa (安國新邨), Sheung Shui, NT (“On Kwok Villa”).  The defendant was, on the other hand, a resident of 1/F, Block 18 of On Kwok Villa. 

4.Apart from being neighbours, the plaintiff and the defendant were once also officers of the Incorporated Owners of On Kwok Villa, albeit during different periods.  In particular, the defendant served as the chairman of the Incorporated Owners from around 2007 to 2009, while the plaintiff has served as its secretary since 2016. 

5.In the present action, the plaintiff complains of having been defamed by the defendant on multiple occasions in 2017 and having been harassed by him by a series of wrongful conduct that started from around April 2017.  Although the plaintiff has also pleaded a case of nuisance, no monetary judgment was entered in that respect. 

6.The plaintiff’s pleaded case in libel and slander is based on the following: -

6.1     On or about 26 April 2017, the defendant published, and/or caused to be published, banners, signage and posters near the block in On Kwok Villa where the plaintiff resided bearing, inter alia, the following words (“1^st Words”)^[2]:-

(1)     “猿狗老姑婆” (pleaded English translation: “ape dog old spinster”);

(2)     “猿狗老師西，你們串金錢” (pleaded English translation: “ape dog teacher old cunt, you guys swindled money”) (strikethrough original);

(3)     “甲人猿狗老師” (pleaded English translation: “slut ape dog teacher”);

(4)     “甲人中学  猿梅謊狗老師 教壞歷史科狗” (pleaded English translation: “ape dog lying teacher, bad history teacher”);

(5)     “撤回貪（心）款” (pleaded English translation: “return the greedy money”); and

(6)     “猿梅謊” (“pleaded English translation: “liar”);

6.2     In a telephone call made on or about 11 September 2017, the defendant (through his agent) uttered, inter alia, the following words, or such similar words in gist, to an employee of the school where the plaintiff worked (“2^nd Words”)^[3]:-

(1)     “衰老姑婆，變態的，快退休，心理不正常，學校應該唔比佢教書” (pleaded English translation: “mean old spinster, a psychopath, should retire, mentally abnormal, and the school should not let her teach”);

(2)     “佢搵黑社會整我全家” (pleaded English translation: “instructed triad members to mess with my whole family”); and

(3)     “害一個有高血壓的阿[伯]” (pleaded English translation “to harm an old man with high blood pressure”);

6.3     From around 5 to 26 November 2017, the defendant shouted and/or uttered, inter alia, the following words, or such similar words in gist, in the vicinity of On Kwok Villa (“3^rd Words”)^[4]:-

(1)     On about 5 November 2017, “袁梅芳搵黑社會搞我” (pleaded English translation: “Yuen Mui Fong engaged triad members to mess me up”);

(2)     On about 7 November 2017, “臭閪袁梅芳 屌你老母袁梅芳 教壞甲寅學生袁梅芳 老姑婆袁梅芳 搵黑社會搞我袁梅芳” (pleaded English translation: “slut Yuen Mui Fong, fuck you Yuen Mui Fong, bad influence for students at Kap Yan Directors’ College, old spinster Yuen Mui Fong, Yuen Mui Fong engaged triad members to mess me up”); and

(3)     On about 26 November 2017, “屌你 臭閪 老姑婆袁梅芳 你搵黑會搞我啦” (pleaded English translation: “fuck you, cunt, old spinster Yuen Mui Fong, you engaged [triad] members to mess me up”); and

6.4     The defendant published or printed, or caused to be published or printed, a letter dated December 2017 to all residents of On Kwok Villa bearing, inter alia, the following words (“4^th Words”)^[5]:-

(1)     “現在你們這群高端騙子，口為安國，其實想吞安國的大維修項目” (pleaded English translation: “now that you are a group of high-end crooks, in the name of [On Kwok Villa], in fact you want to swallow [On Kwok Villa]’s maintenance project”);

(2)     “因為你哋有高文化貪的頭腦” (pleaded English translation: “because you are a high culture and corrupted mind”);

(3)     “由你引線想食安國大維修項目” (pleaded English translation: “you made arrangement to swallow [On Kwok Villa]’s maintenance project”); and

(4)     “安國業主甘心被騙” (pleaded English translation: “the owners of [On Kwok Villa] [were] willing to be cheated”).

7.It is the plaintiff’s case that each of these sets of words, which referred to and/or were understood as referring to the plaintiff^[6], was in their natural and ordinary meanings^[7] defamatory of her.  

8.The plaintiff further pleads that the defendant had published or uttered those words, or caused them to be published or uttered, calculated, inter alia, to cause pecuniary damage to and disparage her reputation and profession and maliciously, in that^[8]:-

8.1     The defendant deliberately attacked her integrity having calculated that the benefits to him through disparaging her image and reputation would outweigh any compensation payable to her;

8.2     The defendant authorized and/or knew and/or intended that the defamatory statements, or their gist, would be published and/or forwarded to other residents of On Kwok Villa;

8.3     The defamatory statements were expressed in a prejudicial and inflammatory manner and/or tone;

8.4     The defendant published and/or caused to be published and/or uttered the defamatory statements knowing them to be false, or recklessly, not caring whether they were true or false and/or with no dishonest belief that they were true; and

8.5     The publication and/or utterance of the defamatory statements were actuated by the defendant’s dominant motive of damaging and undermining the plaintiff’s personal and professional reputation.

9.As a result of the publication and utterance of the defamatory statements, the plaintiff pleads that she has been seriously injured in her reputation, has suffered serious anxiety, distress and embarrassment, and has been exposed to contempt, for which she claims damages, aggravated and/or exemplary damages.  In support of her defamation claim, the plaintiff also relies on section 23 of the Defamation Ordinance (Cap 21).^[9]

10.As regards harassment, the plaintiff relies on the defendant’s course of conduct that started since 26 April 2017.  The plaintiff’s case is that, on no fewer than 91 occasions dated from 26 April 2017 until 25 February 2018, the defendant shouted obscenities, defamatory and foul language at her whenever he saw the plaintiff in or near On Kwok Villa and/or when she walked past his flat.^[10] 

11.The kind of language used by the defendant included: -

11.1   “猿狗老姑婆” (pleaded English translation: “ape dog old spinster”);

11.2   “仆街冚家剷” (pleaded English translation: “asshole, whole family die”);

11.3   “𨳒你老母” (pleaded English translation: “fuck your mother”);

11.4   “死八婆，老姑婆” (pleaded English translation: “bitch, old spinster”);

11.5   “屌你”, “臭閪”, “老姑婆袁梅芳”, “搵黑社會嚟啦” (respective pleaded English translations: “fuck you”, “smelly cunt”, “old spinster Yuen Mui Fong”, “tell triads to come”); and

11.6   “影衰甲寅，教壞學生” (pleaded English translation: “disgrace to Kap Yan, bad influence on the students”).

12.The plaintiff has prepared a record of some of the defendant’s acts of harassment, intimidation and threat^[11], a copy of which is attached as the Annex to this Judgment.  

13.The plaintiff contends that the defendant’s harassment and the publication of the defamatory statements as aforesaid have caused her worry, emotional distress, humiliation and/or annoyance, for which she claims damages, aggravated and/or exemplary damages^[12].  

C.      THE EVIDENCE

14.The plaintiff attended the hearing to give evidence during which she adopted her evidence given in an affirmation filed in her application for interlocutory injunction^[13], and the contents of two witness statements filed specifically for this assessment^[14]. 

15.In her evidence, the plaintiff explained her background as a schoolteacher and the history of her residence at On Kwok Villa.  She also explained that there are 38 three-storey blocks within On Kwok Villa comprising about 150 flats in total.  According to her, the defendant’s flat is located further down the main road in the estate so that one would need to walk past the plaintiff’s flat before getting to the defendant’s flat. 

16.The plaintiff described the defendant’s publication of the defamatory statements in the manner as pleaded and provided photographic and documentary evidence in support.  She also gave an account of how, since April 2017, the defendant began to harass her by shouting obscenities, defamatory and foul language at her, nearly on a daily basis, sometimes in the morning, sometimes in the afternoon and sometimes at night.  This was shown by a video taken in late 2017 / early January 2018 at On Kwok Villa. 

17.The plaintiff gave evidence that the defendant’s course of harassment had been continuing, and after an interlocutory injunction was granted against him on 6 April 2018 restraining him from, inter alia, harassing her.  According to the plaintiff, the defendant’s course of harassing conduct has even escalated after he was served with a permanent injunction dated 24 October 2018 to the same effect. 

18.The plaintiff further explained that, from November 2018 to mid-March 2019, the defendant often came near her flat to perform funeral rites by chanting the slogan “三鞠躬 家屬謝禮”, which she heard particularly at weekends.  After March 2019, he continued shouting obscenities at her, either from his own flat or whenever he passed by her flat, accusing her of owing him money, steeling his bicycle, having affairs with married men and hiring an agent to kill him, all of which were false.  The plaintiff confirmed that those acts had continued up to noon on the date of the hearing. 

19.On the impact of the above on her, the plaintiff explained that:-

19.1   Before she encountered the defendant’s harassing conduct and defamatory statements, she was an optimistic and usually cheerful person and enjoyed having activities and gatherings with her friends;

19.2   After encountering such harassment, which occurred on a nearly daily basis, she has had difficulty sleeping, resting and concentrating on her teaching and working at home, and suffered from distress, headache, anxiety, low mood, tiredness, panic, low self-esteem and embarrassment. She has become scared to go home, has lost interest in leisure activities and has seen her friends less frequently;

19.3   Although she once consulted a psychologist on the above problems, she has largely managed to overcome the problems by about April 2018 by self-adjustment so that she had become less irritated by the defendant’s conduct.  As a result, she has not had to resort to medications for these problems;

19.4   Specifically on the defamatory statements, which attacked her professional reputation and integrity, the plaintiff emphasized that publication of those was extensive.  The banner containing the 1^st Words was put up for over a month before it was removed.  The 2^nd Words were heard by a few staff members at her school, notably the principal and the vice principal.  The 3^rd Words were shouted by the defendant loudly in the vicinity of On Kwok Villa and could easily be heard by anyone in the estate.  The letter containing the 4^th Words was published to all residents of On Kwok Villa which comprised 150 flats;

19.5   It was in this context, and in order to repair the enormous impact on her reputation, that the plaintiff has had to explain her innocence to colleagues and students at the school and their parents.  She has also had to explain the same to other owners, residents and members of the Incorporated Owners; and

19.6   While there was no specific impact on her career at the school (since she was close to retirement anyway), the plaintiff has had to, inter alia, put up with various gossiping from colleagues and students about the incidents.  She also made a mistake when invigilating exams at the school in June 2018 which led to over 10 students having to retake their exams.  The plaintiff further quitted her position as secretary of the Incorporated Owners because it had an impact on her job. 

D.      ASSESSMENT OF DAMAGES

20.Based on the above pleading and evidence, the plaintiff claims damages in the total sum of HK$500,000, comprising: -

20.1   General damages for harassment in the sum of HK$200,000; plus

20.2   General damages for libel and slander in the sum of HK$200,000; plus

20.3   Aggravated damages in the sum of HK$100,000. 

21.In his closing submission, Mr Tsui confirmed that the plaintiff is not seeking exemplary damages despite what is stated in the Judgment on liability. 

22.The plaintiff’s evidence as summarized above is uncontradicted.  Having heard the plaintiff’s viva voce evidence at the hearing and watched the video showing episodes of the defendant’s outbursts of abusive conduct, I find the plaintiff’s evidence credible and accept her evidence in its entirety.  While the defendant’s wrongful conduct would certainly have had an impact on the plaintiff, she has been able to manage it by self-adjustment soon thereafter, as she fairly admitted.  This of course does not dilute the gravity of the defendant’s wrongful acts, which he should never had done. 

23.In support of the plaintiff’s harassment claim, Mr Tsui relies on the following authorities: -

23.1   Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, in which the defendant, over the course of 6 years after her relationship with the plaintiff ended, carried out a campaign of harassment and intimidation of the plaintiff by conducting surveillance on him and stalking him, splashing paint on the plaintiff’s and his grandmother’s home and also his mother’s back, making countless telephone calls to him and his colleagues, causing him to resign from two jobs, and filing false reports about him to the police.  The plaintiff suffered fear, depression and insomnia as a result and had sought psychological treatment with limited results.  The plaintiff brought proceedings against the defendant claiming special and general damages in respect of the torts of intimidation, private nuisance and harassment. In terms of general damages, Anthony Chan J awarded total general damages of HK$600,000.  This sum included general damages for all the said causes of action and included within it aggravated damages to compensate the plaintiff for his suffering in his feelings, dignity and pride and for mental discomfort and distress; and

23.2   Shen Xing v Li Jun (unreported) HCA 1680/2013; 9 April 2014, in which the defendant had over a period of about 3 months demonstrated a course of harassing behaviour towards the plaintiff before legal proceedings were brought against him.  His behaviour included telephoning and sending threatening messages to the plaintiff, visiting the plaintiff’s residences in Hong Kong and Beijing banging on or breaking down her front door and resorting to physical violence towards her.  Such behaviour persisted even after he had given an undertaking to the court not to harass and contact the plaintiff, as a result of which he was found guilty of contempt of court.  In a summary judgment brought by the plaintiff, DHCJ Eugene Fung SC awarded the total sum of HK$100,000 as aggravated damages.  It should be noted that this award was made in respect of not only the defendant’s harassment, but also his trespass and nuisance.  No other general damages was awarded by the court.

24.As to the plaintiff’s claim in defamation, Mr Tsui relied on:-

24.1   Kan Chung Nin Tony v Li Kwong Ming [1987] 1 HKC 487, in which the plaintiff, a renowned solicitor, was defamed by the defendant through a letter issued to all 300 members of the resident’s association in which they respectively served as the honorary life president and the first chairman of the executive committee.  In the defendant’s letter, which referred to the plaintiff by name and by profession, it was alleged that the plaintiff had been removed from a position with public authority, that he had broken promises, and that he exploited the association for his own ends and interests.  That letter was published shortly before the elections for the district board were to take place in which the plaintiff stood as a candidate. After taking into account the serious attack to the plaintiff’s integrity and reputation by way of the letter, the limited extent of circulation of the letter, the distress caused to the plaintiff and the lack of an apology, Master Woolley awarded the plaintiff general damages of HK$65,000;

24.2   Lee Man Kin v Wang Mei Chun & Ors (unreported); HCA 2876/2003; 19 August 2005, in which another solicitor brought a defamation action against some of his neighbours.  Like in the present case, the plaintiff there also relied on Kan Chung Nin Tony.  The specific point relied on by Mr Tsui is the discussion at §§90-92 of the judgment about an increase of 5% per year to reflect inflation since Kan Chung Nin Tony was decided in 1987.  It should however be noted that L Chan J did not expressly accept the plaintiff’s invitation to adopt a 5% increase per year.  Instead, the learned judge took a broad brush approach in awarding general damages, taking into account “significant deflation in the last few years”;

24.3   Mok Kam Kwai v Lam Mo Fat (unreported) HCA 1868/2010; 6 March 2014, in which the plaintiff, who was the chairman of the Shatin Rural Committee and a member of the Shatin District Council, brought a libel claim against the defendant, an indigenous inhabitant and village representative of Pai Tau Village.  The complaint relates to 4 banners put up in the conspicuous spots of the village which allege that the plaintiff was incompetent, betrayed the villagers by acting against their interests in favour of his own benefits.  In finding that the plaintiff’s claim proved, and noting particularly the fact that the plaintiff there was holding an office of honour and enjoyed some degree of notoriety in Shatin, and that the offending banners were seen by a substantial number of people, Chung J awarded general damages in the sum of HK$400,000 for the defendant’s defamatory acts; and

24.4   Tam Heung Man v The Incorporated Owners of Lung Poon Court (Blocks A-F) [2019] HKDC 401, in which the plaintiff, a former Legislative Councillor and a District Councillor, sued the defendant for defamation arising out of two notices published in respect of the plaintiff’s work in connection with Lung Poon Court.  The specific part of the judgment relied on by Mr Tsui are the passages at §§214-225 in which DDJ Lawrence Ng recognized that the failure of the defendant to offer an apology to the plaintiff in the pre-action stage was a relevant factor which supported the award of aggravated damages.  The judge eventually awarded aggravated damages of HK$200,000 in respect of each of the notices.  

25.While past authorities are generally of useful reference value, each case naturally depends on its own facts.  There are indeed resemblances of the present facts with some of these authorities.  But at the same time, there are also distinguishing features: -

25.1   In terms of harassment, even though the defendant repeatedly used abusive and obscene language towards the plaintiff, he did not resort to physical violence against the plaintiff or her property.  The duration of the defendant’s harassing behaviour, which had lasted just under 2.5 years by the time of the hearing, did not last as long as that as in the case of Lau Tat Wai which was 6 years; and

25.2   As to defamation, the plaintiffs in the cited authorities were, by and large, public figures who enjoyed a degree of notoriety in their own right.  Relatively speaking, the injury to their reputations would seem to be more widespread and damaging to their professional careers or reputation compared to the present plaintiff.  As the plaintiff admitted, the defamatory statements basically had no effect on her career school, apart from having to deal with various gossips.

26.Taking all relevant circumstances into account, including the nature and duration of the defendant’s harassing conduct, and the effect such conduct has had on the plaintiff, I find that general damages including aggravated damages in the total sum of HK$180,000 to be reasonable to compensate the plaintiff for the distress and injury to feelings she suffered.  Apart from the fact that aggravated damages are, based on the above authorities, warranted in cases of harassment, they are particularly apt here where the defendant has taken a persecuting attitude by continuing with his wrongful conduct despite interlocutory and final injunctions having been granted against him by the court.  This in my view is entirely in line with the principles laid down in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 per Ribeiro PJ at §§112-123, 130.

27.As to defamation, I have had regard to the fact that the sting of the 1^st to 4^th Words goes directly to the plaintiff’s honesty and integrity, that they carry express or implied statements of unlawful, dishonest or even criminal conduct on her part, and that the 4^th Words had reached a wide audience in On Kwok Villa.  But at the same time, as I explained above, the effect of these defamatory statements on the plaintiff’s reputation has been relatively limited.  In all the circumstances, I consider that general damages in the total sum of HK$100,000 to be reasonable.  I do not order separate aggravated damages under this head as, even though the defendant did not offer an apology, I do not regard that factor on its own is sufficient to justify a separate award of aggravated damages in addition to those ordered under the tort of harassment.  

E.      INTEREST

28.On pleadings, the plaintiff claims both pre- and post-judgment interest on any damages awarded.  However, Mr Tsui has made no specific submissions both as to the appropriate rate and the period over which pre-judgment interest should accrue. 

29.In assessing the award of general damages payable, I have already taken into account all the circumstances, including the time period between the time when the plaintiff first suffered from the harassment and defamation and the present hearing. 

30.I therefore do not make a separate award of pre-judgment interest, which was also the approach taken by this court in Chim Pui Chung v Apple Daily Limited & Ors (unreported) HCA 1286/2014; 3 February 2017; DHCJ Anson Wong SC and Chan Harry Hung-Hay v Yip Sui Ping [2020] HKCFI 366; Master Norman Nip. 

F.      COSTS

31.Finally, there is no reason why the costs of this assessment should not follow the event.  Since the amount of the sum claimed by the plaintiff (and now awarded) falls well within the jurisdiction of the District Court, Mr Tsui accepted at the hearing that the plaintiff’s costs should be taxed on a party and party basis on the District Court scale. 

G.      DISPOSITION

32.For all these reasons, I order that final judgment be entered in the following terms: -

(1)    The defendant do pay the plaintiff general damages, including aggravated damages, for the tort of harassment in the sum of HK$180,000;

(2)     The defendant do pay the plaintiff general damages for libel and slander in the further sum of HK$100,000;

(3)     The defendant do pay the plaintiff simple interest on the above sums at the judgment rate from the date of this judgment until full payment; and

(4)     On a nisi basis, costs of this assessment of damages be to the plaintiff to be taxed on the District Court scale if not agreed.  Absent any application to vary the same within 14 days from today, this order nisi shall become absolute. 

33.It remains for me to thank Mr Tsui for the assistance he rendered to the court. 

Mr Alex Tsui of K B Chau & Co, for the plaintiff

The defendant was unrepresented and absent

Annex