Yuen Mui Fong v. Lo Kut Chie Alan
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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 _________________________________ 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: -
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]:-
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: -
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:-
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: -
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: -
24.As to the plaintiff’s claim in defamation, Mr Tsui relied on:-
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: -
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 1st to 4th 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 4th 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: -
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 [1] See also 8th Affirmation of Chin Hon Bun filed on 6 December 2019. [2] Statement of Claim §3. [3] Statement of Claim §7. [4] Statement of Claim §10. [5] Statement of Claim §14. [6] Statement of Claim §§4-5, 8, 12, 15. [7] Statement of Claim §§6, 9, 13, 16. [8] Statement of Claim §§17-18. [9] Statement of Claim §§19-24. [10] Statement of Claim §§25-28; Affirmation of Yuen Mui Fong §22. [11] Exhibit “YMF-5” to Affirmation of Yuen Mui Fong. [12] Statement of Claim §§28-32. [13] Affirmation of Yuen Mui Fong. [14] Witness Statement of Yuen Mui Fong; Supplemental Witness Statement of Yuen Mui Fong (§§1-2, 7-8 only). |
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