Pang Siu Wing Alias Pang Wing v. Chungshan Commercial Association, Hong Kong
Read the full judgment text of HCA 820/2013 on BabelCite. This High Court CFI judgment was delivered on 4 May 2021.
1. This is a claim for wrongful expulsion of the Plaintiff’s membership in the Defendant and libel. The subject of the libel relates to the notices published by the Defendant in various newspapers (“the Notices”) following the expulsion of the Plaintiff’s membership in the Defendant.
Cited by 2 cases · Cites 5 cases
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HCA 820/2013 [2021] HKCFI 1250 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 820 OF 2013 ________________________ BETWEEN
________________________ Before: Hon Lok J in Court Dates of Trial: 3-5 & 11 December 2019 Date of Judgment: 4 May 2021 ________________________ J U D G M E N T ________________________ 1.This is a claim for wrongful expulsion of the Plaintiff’s membership in the Defendant and libel. The subject of the libel relates to the notices published by the Defendant in various newspapers (“the Notices”) following the expulsion of the Plaintiff’s membership in the Defendant. 2.In this Judgment, I will use the terms “Chungshan” and “Zhongshan” interchangeably. Both refer to the prefecture-level city of “Zhongshan” (中山) in the south of the Pearl River Delta in the Guanggong province in the Mainland. “Zhongshan” should be the proper name which is the Putonghua pinyin but the Defendant uses the Cantonese pinyin “Chungshan” as referring to the same place. I also use the terms “Sections” and “Districts” interchangeably, as both terms refer to the different demarcated areas or districts within Zhongshan for various purposes including the election of directors of the Defendant. Further, there are a lot of Chinese counties, cities, towns and villages referred to in this Judgement. I find it more convenient to refer to these places by their Chinese names. Finally, the Defendant is a clansman association which existed as an unincorporated association prior to its incorporation. I will use the term “Association” as referring to the clansman association in general both as an unincorporated entity and the subsequent incorporated entity. BACKGROUND (i) The parties, the organisation of the Defendant and its election 3.The Defendant is a non-profit making clansman association formed and incorporated mainly for promoting the interests and welfare of Chungshan natives residing in Hong Kong. The Association was first established in 1911 and the Defendant was incorporated in 1967. 4.The Defendant is an organization with about 1,800 members and has no more than 100 directors (會董) for each term. Out of the elected directors, 23 executive directors (常務會董) would be elected amongst themselves. 5.The Plaintiff is a successful businessman in Hong Kong and a Chungshan native. He became a member of the Defendant since around 1994 until he was expelled on 29 January 2013. 6.The Plaintiff was first elected as a director of the Defendant for its 17th Term (2002-2007)[1]. He was again elected as director of the 19th Term (2009-2011) and the 20th Term (2011-2013). He was also an executive director for the 20th Term. Accordingly, when he was expelled, he lost also his office as director and executive director of the Defendant. 7.The purported reason for expelling the Plaintiff was that he was in breach of the Defendant’s Articles of Association (“the AA”) by unilaterally changing the registered “Section” (區) of his native place. According to the Defendant, this constituted a serious doubt on his integrity. He was purportedly expelled pursuant to Article 7 of the AA which reads:
8.Members of the Defendant are classified into “9 Sections” (九區) which were supposed to be geographical sections or demarcations within the county or city of Chungshan. It is a major point in dispute as to how these 9 Sections were delineated and what places or villages inside the Chungshan County fall within which Section. In particular, there is an issue as to the basis on what “document”, “map” or “criteria” would these 9 Sections be defined. It is not in dispute that the AA do not specifically define the 9 Sections or refer to any particular “document” or “map” for such purpose. 9.The classification of a member in a particular Section is relevant to the election of directors. It is related to Article 38 of the AA which reads:
10.It is the Plaintiff’s case that in around 1994 or 1995 when he joined the Defendant, the introducing member was Mr Miu Kai Lum (繆啟霖) (“Mr Miu”). Mr Miu provided the Plaintiff with a membership form (“the 1st Registration Form”). The Plaintiff filled in his personal data. In the box for “Native Place (藉貫)”, the Plaintiff filled in “觀欄” (Guanlan). At that time, he was not shown any “document” or “map” identifying Sections within the Chungshan county. Not being a member yet, the Plaintiff was not even aware of the “9 Sections” classification. The “Section Number: 1” in the 1st Registration Form was not filled in by the Plaintiff. According to the Plaintiff, he believed that he was classified by Mr Miu or the Defendant into the same Section as that of Mr Miu. 11.The election in 1999 could not be completed as there were complaints of vote-rigging (種票、偽票). Hence, there had to be a re-registration of members and a re-election. 12.A re-election committee (“the Election Committee”) was then formed. The Election Committee conducted a re-registration exercise in 2000 for all members (“the 2000 Registration Exercise”). Each member was required to fill up a new registration form designed by the Election Committee. Respective committee members were made responsible for handling the re-registration of members for a designated Section. 13.For “Section 3”, the responsible committee members were Mr Li Chuen Hoi (李銓開) (“Mr CH Li”) and Mr Ho Hung Ji (何洪枝) (“Mr HJ Ho”). According to the Plaintiff, they provided him with a table with the title “中山縣九區鄉村一覧表” (A broad table of the 9 Sections within the Chungshan County) (“the Table”), which had been adopted by the Defendant for the purpose of election of the directors. The Plaintiff filled out this new form (“the 2nd Registration Form”) stating his native place as “東昇鎮觀欄鄉” (Dongsheng Town, Guanlan Village). The name “東昇” (Dongsheng) or “觀欄” (Guanlan) however did not appear under any Section in the Table. Instead, “坦背” (Tanbei) was classified under Section 3. According to the Plaintiff, he knew or understood at the time that “觀欄” was designated by the Mainland Government as part of “坦背” which was in turn subsumed under “東昇鎮” (Dongshen Town). The Plaintiff thus put down “Section 3” in the 2nd Registration Form. 14.There is no serious dispute that the 2000 Registration Exercise was conducted and verified internally by members of the Election Committee. Further, the entire process was supervised and audited by Messrs M B Lee & Co, Certified Public Accountants Ltd. (“LMB”) which was specifically engaged by the Defendant for the exercise. Pursuant to the new registration under the 2nd Registration Form, membership of the Plaintiff was duly approved, adopted and verified by the Defendant. Consequently, an official list of members of the Defendant was published. A new membership card was issued by the Defendant to the Plaintiff. 15.There were further election-related disputes in the Association. In or about 2006, a membership verification exercise was conducted by the Defendant through Horwath Corporate Advisory Services Ltd (“Horwath”) pursuant to the order of Kwan J, as she then was, in HCMP 3253/2004 (“the 2006 Verification Exercise”). After conducting a full review of all membership documentations and information with a view to identifying irregularities, the Plaintiff’s membership was again duly verified without any issue and his name appeared in the finalized membership list published by the Defendant. 16.The Plaintiff stood for election and was duly elected as a director of the 17th Term. The Plaintiff was not successful in the election for the 18th Term. He was however re-elected as a director of the 19th Term and the 20th Term. As mentioned above, the Plaintiff was also elected as an executive director of the 20th Term. (ii) The 1st accusation 17.At the 8th meeting of the board of directors (“the Board”) of the 19th Term on 8 June 2010, the Plaintiff was accused of arbitrarily and unilaterally switching from Section 1 to Section 3. The accusation was made by Mr Lam Kit Sing (林潔聲) (“Mr KS Lam”) and Mr Li Tin Kuen (李天權) (“Mr TK Li”) who were both executive directors. They accused the Plaintiff of breaching the AA and questioned the Plaintiff’s integrity. It was then resolved that a motion for suspension of the Plaintiff’s office would be tabled for discussion at the next meeting of the Board. It is the Plaintiff’s case that both Mr KS Lam and Mr TK Li harboured ill-spite against the Plaintiff, which would be relevant to issue of “malice” in the libel action. 18.Then at the 9th Meeting of the Board of the 19th Term held on 8 July 2010, the Plaintiff gave his explanation about the switching of Section from 1 to 3 in the 1st and 2nd Registration Forms and his belief as mentioned above. Despite that, Mr KS Lam and Mr TK Li moved for a motion to expel the Plaintiff to be tabled at the next meeting of the Board and then onwards to a members’ meeting. No resolution was passed at this meeting. 19.Eventually, a motion to suspend the Plaintiff’s directorship was tabled in the agenda for the 10th Board’s meeting of the 19th Term held on 26 July 2010. It was recorded in the minutes of that meeting:
20.The Plaintiff specifically issued a letter to the Defendant to set out his explanation. Thereafter, no investigation was undertaken by the Defendant and the Plaintiff continued to be recognized as a member and served as a director of the Defendant until he was expelled in 2013. (iii) The 2nd accusation 21.In 2012, the Plaintiff was interviewed by Zhongshan Daily (中山日報) (“Zhongshan Daily”) which was a publication in the Mainland. The interview was later published in an article (“the Mainland Article”) which the Plaintiff was recorded as saying:
22.By that time, Mr KS Lam had become the chairman of the Defendant of the 20th Term. On 18 December 2012, in a notice for the 17th Board’s meeting of the 20th Term, it was alleged that the Defendant had received a complaint letter accusing the Plaintiff of “inappropriate declaration of Section; seriously questionable integrity; breach of Article 7”. The said notice called for the Board to discuss whether the Plaintiff should be dealt with under Article 7. 23.At the 17th meeting of the Board of the 20th Term held on 27 December 2012:
24.By a letter from his then solicitors dated 28 January 2013, the Plaintiff pointed out that the allegations contained in the notice of the Board’s 18th meeting were false, unfounded and defamatory and asked for their retraction. 25.On 29 January 2013, the 18th meeting of the Board was held. The Plaintiff reiterated his explanations as stated in §23 above and the views expressed by Mr Chung (the then legal advisor of the Defendant), Mr SL Ho and Mr Wong at the 10th meeting of the Board of the 19th Term[3]. The Plaintiff further stated that he had checked the Table again that both “聖獅” and “觀欄” were not mentioned in the Table but “坦背” was mentioned and classified under Section 3. The Plaintiff stressed that all along, he put down “觀欄” as his native place. The Plaintiff also referred to a booklet issued in 1996 by “中山僑務局” (Zhongshan Overseas Chinese Bureau) as support and that he used the address “坦背鎮觀欄” (Tanbei Town Guanlan) in correspondences. The Plaintiff further queried how his alleged conduct was “injurious to the [Defendant]”. 26.On the other hand, Mr KS Lam reiterated the accusations. He stated that both the 1st and 2nd Registration Forms contained the Plaintiff’s signatures. Mr KS Lam said that the Plaintiff’s statement to Zhongshan Daily that he was from “聖獅” was inconsistent with the information he provided in the 1st and 2nd Registration Forms. The Plaintiff’s conduct touched upon “integrity” and must be dealt with seriously. He concluded that the Plaintiff had breached the AA and moved for a resolution to expel the Plaintiff. A vote was then taken and the resolution (“the Expulsion Resolution”) was passed. (iv) Expulsion of the Plaintiff and the publication of the alleged defamatory Notices 27.On 6 February 2013, the Plaintiff received a formal notice from the Defendant notifying him of his expulsion with immediate effect (“the Expulsion Notice”). The Expulsion Notice stated that the Plaintiff was in breach of Article 7 and his integrity was in serious question. 28.By a letter dated 6 February 2013 from the Plaintiff’s then solicitors to the Defendant, the Plaintiff objected to his expulsion which he considered invalid. The Plaintiff also pointed out that the Expulsion Notice contained statements defamatory of and concerning him and expressly reserved his rights. The Plaintiff demanded for retraction of the Expulsion Notice and reinstatement of his membership. 29.Notices of the Plaintiff’s expulsion were then published by the Defendant in Wen Wei Po, Ta Kung Pao and Hong Kong Commercial Daily respectively on 3 consecutive days, i.e. 11, 12 and 13 March 2013, which contained the words complained by the Plaintiff to be defamatory of him (“the Words”):
THE ISSUES 30.The Plaintiff’s first cause of action is based on the alleged wrongful expulsion of his membership in the Defendant (“the Wrongful Expulsion Claim”). It is the Plaintiff’s contention that the Expulsion Resolution was illegal, invalid and null and void. The issues between the parties here are: (i) whether the Plaintiff had wilfully committed an act of gross misconduct likely to be injurious to the Association or intentional fraud in connection with the Association’s money; (ii) whether there was due investigation into the accusations and satisfactory evidence of the alleged misconduct of the Plaintiff; and (iii) whether the Plaintiff was given an opportunity to explain or defend the accusations. 31.As there was no intentional fraud in connection with the Association’s money, the real issue between the parties is whether the Plaintiff had wilfully committed an act of gross misconduct likely to be injurious to the Association. In this regard, it is the Defendant’s contention that the Plaintiff was dishonest in filing out the 2nd Registration Form stating himself to be under “Section 3” in order to gain an advantage in the directors’ election. His conduct undermined fairness and was thus “gross misconduct likely to be injurious” to the Defendant:
32.The Defendant’s case is therefore pitched at a high threshold of establishing dishonesty on the part of the Plaintiff. If the Defendant cannot meet such threshold, its defence to the Wrongful Expulsion Claim is unlikely to succeed. 33.The Plaintiff’s second cause of action is libel (“the Libel Claim”). It is the Plaintiff’s contention that he was defamed by the Defendant by reason of the publication of the Notices of the Plaintiff’s expulsion which was actuated by malice. 34.According to the Plaintiff, the Words bear, inter alia, the following ordinary and natural meanings that are defamatory of and concerning the Plaintiff:
35.The Defendant does not admit the Plaintiff’s pleaded defamatory meanings. The Defendant however raises a Lucus-box plea of justification in respect of the following defamatory meanings:
36.As a defence to the Libel Claim, the Defendant seeks to justify the truth of the Lucus-box meanings of the Words. 37.As the second defence to the Libel Claim, the Defendant contends that the Words were published on an occasion of qualified privilege as: (i) the Defendant had a duty to publish the Notices and the members of the Association, being the readers of the newspapers, had a corresponding interest to receive them; or (ii) the Defendant and the members of the Association would have a common interest to publish and to know about the affairs of the Association including the expulsion of the Plaintiff’s membership. As to the need to publish the Notices in the various newspapers, the Defendant contends that it had 1,860 members on its members’ register, of which only around 1,300 could be contacted through addresses registered with the Defendant. As the Plaintiff had claimed that he was invalidly expelled and he remained an executive director of the Defendant, the Defendant was reasonably concerned that members ought to be properly notified of the propriety of the proceedings leading to the expulsion. The Notices concerned the affairs, personnel and proper management of the Defendant and were of importance to members. As publication of the Notices in newspapers was the only possible and effectual mode of communication to all its members, the manner of publication was proportionate. 38.In response to the plea of qualified privilege, the Plaintiff contends that as the Notices were published at large and not confined to members of the Defendant, the publications were excessive and disproportionate to the need of informing its members of the expulsion of the Plaintiff’s membership. Even if the Defendant had wished to notify all members of the Plaintiff’s expulsion, it could have notified members by mail or by posting prominent notice at the Association premises. In fact, around that time, the Defendant had conducted full review and updating of membership information. The Plaintiff also argues that it was not necessary to include the reason for expulsion and the accusation relating to the integrity of the Plaintiff in the Notices. 39.Further, the Plaintiff contends that the defence of qualified privilege is not open to the Defendant as the publication was actuated by malice in that:
40.These are the issues I have to determine at this trial. EVIDENCE AT THE TRIAL 41.There were only two witnesses at the trial: the Plaintiff himself and one Mr Choi Yuet Shan (蔡越山) (“Mr Choi”) who testified on behalf of the Defendant’s case. (i) The evidence of the Plaintiff 42.In his testimony, the Plaintiff told the court his personal background, how he came to join the Defendant, the circumstances as to how he filled in the information in the 1st and 2nd Registration Forms. He confirmed that Mr CH Li and Mr HJ Ho had provided him with the Table before he filled in the 2nd Registration Form. Mr CH Li also said to him words to the effect that as he came from “坦背”, he belonged to Section 3. He also provided the court with the backgrounds of the 2000 Registration Exercise and the 2006 Verification Exercise. 43.The Plaintiff also testified as to: (i) the incidents leading to the making of the 1st and 2nd accusations against him and how he defended himself in the meetings of the Defendant; (ii) the circumstances as to how the Defendant came to vote to expel him; and (iii) the circumstances under which the Notices were published for 3 consecutive days about the expulsion of his membership with the Defendant. 44.The Plaintiff also explained why he claimed that the Notices were published with malice. According to him, Mr KS Lam and Mr TK Li had grudges against him. It started in 2000. They considered the Plaintiff an obstruction. They had differences about the management of the affairs of the Defendant and Mr KS Lam and Mr TK Li made repeated personal attacks against the Plaintiff in various meetings and gatherings of the Defendant. They also unfairly criticized his work as the secretary general of the Defendant, and tried to oust the Plaintiff from the post and strip him of his authorities. 45.The situation became worse in 2011 when both the Plaintiff and Mr KS Lam were appointed as the executive directors of the Defendant for the 20th Term. Later Mr KS Lam became the Chairman of the Defendant. When the Plaintiff was the executive director for the 20th Term, he raised queries about certain donations, sponsorships, and gifts made by the Defendant. He also suspected that there were improprieties in the management of the financial affairs of the Defendant. This resulted in sustained animosity between the parties. 46.Eventually, it was discovered that Mr KS Lam was not even a native of Zhongshan and he was expelled from the Defendant in 2014. At the material time of the Plaintiff’s expulsion, Mr KS Lam and Mr TK Li were in control of the Defendant. 47.From the Plaintiff’s experience in the Defendant, though members had been expelled from time to time, there was no single occasion that the Defendant had ever published any expulsion notices in newspapers before his own expulsion (though the expulsion notice of Mr KS Lam was published in one newspaper in June 2014), not to mention the use of words such as “there was a big issue with the integrity of the [relevant expelled member]” in the expulsion notices. Further, the Defendant had verified the information of its members from time to time, and so the Defendant should have and could have notified its members of any expulsion notices by mail. It was Mr KS Lam who decided on the wording of the Notices. 48.Turning to the demarcation of the Sections, it is fundamental to the Defendant’s case that the demarcation of the “9 Sections” was based on a map (“the Map”) contained in the special publication to commemorate the 64th anniversary of the Association (“the Special Publication”). The Plaintiff confirmed that he had not heard about the Special Publication until after the commencement of the present proceedings. He had not heard about the use of the Map as a basis for the demarcation of the Sections for the purpose of the election in the Defendant. In fact, the AA of the Defendant have not referred to the Map or the Table for the same purpose. In the minutes of the Board’s 10th meeting for the 19th Term, Mr SL Ho, the then vice-chairman of the Defendant, mentioned that a lot of the members were not absolutely certain about the demarcation of the Sections. 49.The Plaintiff also testified about his native place and ancestral origin. According to the Plaintiff, his father was an indigenous villager of “東昇鎮利生社區觀欄二隊” (Dongsheng Town, Lisheng Community, Guanlan Team 2)[4] and he moved to live in Hong Kong in 1950. That is why he considers his native place as “觀欄”. 50.“觀欄” is the name of a place, but it has been put under different administration districts over the years. According to the Table, “坦背” belongs to Section 3. As “觀欄” is or was part of “坦背”, he considered himself belonging to Section 3 when he filled in the 2nd Registration Form. He was also the chairman of the “坦背同鄉會” (Tainbei Clansman Association). The Plaintiff also quoted materials from “Who’s Who of Zhongshan Natives in Hong Kong and Macau” published by the Zhongshan Peoples’ Government[5] and a magazine report in 2013[6], which support the Plaintiff’s belief that he considered his native place as “中山坦背鎮觀欄村”. 51.The Plaintiff also produced an article from the website of the People’s Government of the Dongsheng Town which provided some information about the village of “觀欄”.[7] According to this article, “觀欄” was established in 1949. In 1951, the village was put under the district of “草坦鄉” (Caotan Village) of District 3 of Zhongshan. The article then traced the development of the village. In 1984, the village was attached to the district of “坦背”. In 1999, the town of “坦背” was abolished and the village was then put under the town of “東昇”. 52.The Plaintiff also produced another article from the website of the People’s Government of the town of “東昇”.[8] It traced the history of the town starting from the Sung Dynasty. In the Qing Dynasty, “東昇(坦背)” was put under District 3, while “觀欄” was put under District 2 (which is a bit difficult to understand because, according to the last article, the village of “觀欄” was only established in 1949). After the fall of the Qing Dynasty, “東昇(坦背)” was put under District 3. Then after the establishment of the People’s Republic of China, Zhongshan was divided into 11 districts, not 9 districts as adopted by the Defendant or the previous government. Under the new 11-districts demarcation after 1949, “東昇(坦背)” was still put under District 3 while “觀欄村” was put under District 2. 53.According to the Plaintiff, he had all along maintained his position and believed that he belonged to Section 3 under the 9-districts classification. There had been different demarcation of districts throughout the years and under different governments. But from the said materials, there is no doubt that “觀欄” was put under “東昇(坦背)” in District 3. In 1999, the town of “坦背” was abolished and the village was then put under the town of “東昇”. According to the demarcation in the Table, “坦背” belonged to Section 3. 54.The Plaintiff produced another article from the website of the People’s Government of the town of “沙溪” providing an introduction about the village of “聖獅”.[9] Again the article traced the origin of the village. It was originally situated in the northern part of “古象角” (Guxiangjiao). In 1950, “古象角” was split into 3 districts, with one known as “觀欄鄉” which is now under the town of “坦背”. The article also stated that the residents in “聖獅” usually came from families with 4 surnames of which “Pang” (the surname of the Plaintiff) was one. As “坦背” had been classified as Section 3 in the Table, it reinforced the Plaintiff’s belief that he belonged to Section 3. (ii) The evidence of Mr Choi 55.Mr Choi also testified in court. He is the vice-chairman of the Defendant. He joined the Defendant in 1991. He has been elected as a director of Section 5 and the executive director of the Defendant since 1993 and 1998 respectively. 56.Mr Choi provided the court with the background, the organisation and the election system of the Defendant. He also told the court about the election-related disputes in the Defendant which were the backgrounds for the 2000 Registration Exercise and the 2006 Verification Exercise. 57.According to Mr Choi, the demarcation of the Sections for the purpose of the election was based on the 9 Sections made by the then government in 1911, as shown in the Map in the Special Publication. The demarcation has all along been adopted by the Defendant and all the members know about this. The subsequent re-demarcation and re-categorisation of the places in the Zhongshan district by the Mainland Government after 1949 is therefore irrelevant. 58.The declarations made by the individual members about their Sections are important for the election of directors. It is difficult for the Defendant to verify the correctness of a member’s declared Section. The Defendant has all along been relying on the honour and trust of the members to declare their native places and Sections. 59.Mr Choi believed that the Plaintiff switched from Section 1 to 3 in 2000 with a view to gain electoral advantages. Upon cross-examination, Mr Choi agreed that it was only his own speculation. 60.He then told the court about the complaint against the Plaintiff received by the Defendant following the publication of the Mainland Article. According to Mr Choi, the village of “聖獅” belonged to the town of “沙溪”, and “沙溪” fell within Section 2. The directors rejected the explanation given by the Plaintiff and the majority voted in favour of expelling the Plaintiff. The directors also voted in favour of publishing the expulsion notice in the newspapers. 61.Mr Choi also gave an explanation as to why the Notices would have to be so published. The Defendant by then had about 1,860 members, and only 1,300 could be contacted by mail. It was the usual practice for the Defendant to publish important notices to members through newspapers, including notices for annual general meetings. WHETHER THE PLAINTIFF HAD WILFULLY COMMITTED ACT OF “GROSS MISCONDUCT” AND WHETHER HE WAS DISHONEST IN DECLARING HIS SECTION? 62.One of the most important factual disputes that I have to resolve is whether the Plaintiff had wilfully committed act of “gross misconduct” in filling in “Section 3” in the 2nd Registration Form and whether he was dishonest in doing so. This would be relevant both as to whether the Defendant was justified to expel the Plaintiff and whether the Words in the Notices are true for the purpose of the Libel Claim. 63.The grounds for the assertion of dishonesty have already been set out in §31 above and I do not want to repeat the same here. 64.In my judgment, the evidence and the contemporaneous documents in the present case do not support such serious allegation. 65.When the Plaintiff filled in the 1st Registration Form, he stated his “籍貫” to be “觀欄村”. The Defendant does not allege that the Plaintiff acted in any way dishonest in 1994 when he filled in the 1st Registration Form, a stance which has been confirmed by Mr Choi in his oral testimony and Mr Man, SC, counsel for the Defendant, in his submissions. 66.As of 1996, objective evidence demonstrates that the Plaintiff did regard his “籍貫/祖籍” as “中山市坦背鎮觀欄村”. He was then the founding chairman of “香港坦背同鄉會”. The 1983 correspondence between the Plaintiff’s father and uncle supports the Plaintiff’s understanding that “觀欄村” was within “坦背”. The Plaintiff’s knowledge of the connection between “觀欄村” and “坦背鎮” is well documented. 67.In 2000 when the Plaintiff filled in the 2nd Registration Form, I agree with Mr Pow, SC, counsel for the Plaintiff, that the following facts must be clear especially after Mr Choi’s cross-examination:
68.Based on such evidence, there is no basis to support the Defendant’s assertion that the Plaintiff knew in 2000 that “觀欄村” fell within Section 2. Further, if all the members were aware that the Map was the only basis used for the demarcation of Sections for election purposes, it is difficult to understand why the Defendant cannot even refer me to one single document before the Plaintiff’s expulsion in which references were made to the Map. In my judgment, the Defendant’s assertions are simply incapable for being believed. 69.In the cross-examination of the Plaintiff, he frankly admitted that he could not say whether his father lived in that part of “觀欄村” which fell within Section 2 or the other part which fell within Section 3. That is the case after the Plaintiff gained his post-2014 knowledge having conducted the relevant research. He accepted that from his research, in the past, part of “觀欄村” fell within “沙溪” and thus could be within Section 2. However, there is simply no basis for me to disbelieve the Plaintiff’s evidence that in 2000, he honestly thought “觀欄村” was under Section 3 because “坦背” was classified under Section 3 in the Table. 70.Another contention made by the Defendant is that, as a matter of fact, the Plaintiff, as of 2000, already knew that his “祖籍” was “沙溪鎮聖獅村”, and as a result he was dishonest or had other sinister motives when he put down his “祖籍” as “東升鎮觀欄村” in the 2nd Registration Form. 71.I agree with Mr Pow that there is simply no evidence to substantiate such contention:
72.The Plaintiff has been subject to vigorous cross-examination on his explanations, and yet he has not evaded any questions put to him and his evidence has remained unshaken. Further, his evidence is supported by contemporaneous records such as minutes of meetings and available records about the history of the various places supplied by both parties. 73.In an attempt to discredit the Plaintiff’s evidence, Mr Man relies heavily on the fact that some of the additional details as mentioned below have not appeared in the Plaintiff’s pleadings or witness statements and as a result such additional details must be recent fabrications:
74.Despite Mr Man’s best attempt, I do not accept that such submissions in any way undermine the credibility of the Plaintiff’s evidence. 75.In his witness statements, the Plaintiff affirmed that Mr CH Li and Mr HJ Ho did show him the Table on 18 April 2000 without mentioning the conversation he had with Mr CH Li. However, the main point of the Plaintiff’s evidence is that he had relied throughout on the Table as his basis because “坦背” was shown in the Table as under Section 3. In his oral testimony, he confirmed that he had read the Table before filling in the information in the 2nd Registration Form. Hence, whether the Plaintiff had had the relevant conversation with Mr CH Li does not add very much to his case, and so one should not criticize him for omitting to include all the details in his witness statements. Indeed, there is weight in the Plaintiff’s evidence about his reliance on the Table. Even Mr Choi confirmed that the Table was the main tool used in the verification (核實) process. It is also fair that the Plaintiff had relied on the verification process conducted by Mr CH Li and Mr HJ Ho to the effect that “觀欄”, which was the native place he declared both in 1994 and 2000, did fall within Section 3. 76.I then turn to the conversation which the Plaintiff had with one Mr Pang in about 2011. The Plaintiff claimed that it was the first time that he knew the Pangs might have originated from “聖獅”. Mr Man complains that the Plaintiff had not elaborated on this point in his witness statements and had not revealed such conversation when he defended the accusations in the meetings. 77.I disagree. Though not as detailed, the Plaintiff had mentioned about what he was told as early as 27 December 2012. It is clear from the minutes of the meetings on 27 December 2012 and 29 January 2013 that the Plaintiff all along regarded himself as a native of “觀欄” and that based on what he was told about his clan’s origin and the historical boundaries of “觀欄” and “聖獅”, there was no conflict between the respective statements in the Mainland Article and the 2nd Registration Form. This was in fact what the Plaintiff had pleaded.[13] He also specifically denied the allegation that he knew in 2000 that his “祖籍” was “沙溪”.[14] In other words, he had provided the gist of his explanation in the meetings and the pleadings. 78.Further, the fact that Plaintiff was merely told about these matters not long before the Mainland Article is consistent with objective evidence. As pointed out earlier, the Plaintiff had consistently stated in various documents and interviews that his “祖籍” was “觀欄”. The Mainland Article published in late 2012 was the only instance in which “沙溪聖獅” was mentioned. 79.Mr Man also tries to challenge the credibility of the Plaintiff’s evidence by reason of the following:
80.In my judgment, these matters are quite immaterial. One cannot expect the Plaintiff to recall all the minute details of events which happened many years ago. The Plaintiff confirmed that the conversation with Mr CH Li took place on 18 April 2000. There is also nothing surprising for some traditional Chinese like the Plaintiff to use Chinese customary age in writing forms, and the Plaintiff had already tried to his best to provide all the details he could recall about the conversation with Mr Pang. After all, this Mr Pang was only someone he met by chance and it would be too much to expect the Plaintiff to remember all the details including his full name. 81.One of the important considerations in the present case is the possible confusion arising from the Chinese concepts of “祖籍” (ancestral origin place), “籍貫” (native place) and “鄉籍” (native or village place). As the cross-examination of Mr Choi bears out, these concepts are not as clear as one would have hoped. It depends on how much one knows about his origin, which may be evolving with time. It is further complicated by the concepts of “what one knows as a fact” and “what one was told and simply believed in”. From the evidence, it is quite clear that the Plaintiff regarded “觀欄” as the native place he knew throughout and the historical information about the origin of the Pang’s clan as something he was more recently told. Hence, I do not accept that the Plaintiff’s explanation was one that he created for this litigation. 82.Mr Man also submits that it is strange the Plaintiff was only told about the origin of the Pang’s clan so late but not earlier. But I do not find it surprising at all. It is not easy for someone to keep track of the origin of his or her family, in particular taking into account the migration of families and re-demarcation of districts which were not uncommon in recent Chinese history. Even viewing the Plaintiff’s evidence with critical eyes, there is simply no basis for me to doubt the genuineness of his explanations relating to his declaration made in the 2nd Registration Form. 83.Furthermore, “dishonesty” and “deliberate falsity” with corrupt motive of electoral advantages are very serious accusations. The standard of proof, though on preponderance of balance of probabilities, must be proved by far more compelling evidence.[15] Upon the cross-examination of Mr Choi, the highest he could get was that, in 2000, the Plaintiff possibly knew that he was “聖獅人” (people of Shengshi), and it was possible that he did not want to reveal such fact (可能知道他是聖獅人, 他當時可能不公開的). When pressed further, Mr Choi said that he was not certain about such allegation, and he was not sure whether the Plaintiff knew by that time that he was “聖獅人” (我不肯定這樣事, 我不肯定他當年就知道自己是聖獅人). He confirmed that he did not know and he could not make such inference or deduction. It was only a possibility. This is far from showing that the Plaintiff knew by that time and he dishonestly filled in the information about his native place in the 2nd Registration Form, not to mention the requirement of more compelling evidence for more serious allegation. 84.Hence, I refuse to find that: (i) the Plaintiff had acted dishonestly in 2000 when he filled in his native place and declared Section in the 2nd Registration Form; (ii) as of 2000, the Plaintiff knew that his “祖籍” was “沙溪聖獅” instead of “觀欄” such that he wilfully and falsely stated his “祖籍”; or (iii) as of 2000, the Plaintiff knew that “觀欄” was under Section 2 such that he falsely put down Section 3 in the 2nd Registration Form. 85.Indeed, even up to now, the evidence does not establish that “觀欄” actually falls within Section 2 as delineated in the Map. The only witness of the Defendant, Mr Choi, attempted to mark the position of “觀欄” on the Map to prove so. However, cross-examination revealed that Mr Choi’s evidence is wholly unreliable and that he was in no position to identify the exact location of “觀欄” on the Map. THE WRONGFUL EXPULSION CLAIM 86.Based on these findings, it cannot be said that the Plaintiff had wilfully, or indeed recklessly, committed an act of gross misconduct likely to be injurious to the Defendant. Undoubtedly, given the history of the election-related disputes in the Association, the declaration as to one’s Section is a serious matter for the election of directors, and the Defendant has to rely on the trust and integrity of the members in making such declarations. Yet there are various matters which might have caused confusions in the demarcation of Sections in the case of the Plaintiff:
87.The Plaintiff has clearly explained that, in 2000 when he filled out the 2nd Registration Form, he was not aware of the history of the demarcation of the Sections or Districts in the Zhongshan area. He by then did not know the exact boundaries of the different counties or villages. The matter is further complicated as temporal confusion might arise from the different demarcations of districts by different governments and the creation of new towns and villages (in some cases using ancient names of the places) over the years. But one thing is clear. The Plaintiff genuinely believed that his native place is “觀欄” given the connections of his grandfather and father with this place, and by reason of the connection of this place with “坦背”, he believed that he belonged to Section 3. As to the origin of the Pang’s clan, he was later told that it might have originated from “沙溪聖獅”, but up to now he is not sure whether it was indeed the case. 88.It is not the Defendant’s case that the court should not disturb the findings made by the Board as it was the only proper body to make determinations on the conducts of its members. Indeed, the decision of the Board would have grave impact on the reputation of the Plaintiff and the Defendant had not adopted a formal procedure to investigate the truth of the Plaintiff’s explanation. Hence, if the Plaintiff had not in fact committed the alleged act of wilful misconduct, the court should have no difficulty in declaring that the Expulsion Resolution is invalid. 89.As I accept the Plaintiff’s explanation as the truth, there is no basis for the Defendant to say that the Plaintiff had committed an act of gross misconduct likely to be injurious to the Defendant. Based on such finding, it is quite unnecessary for me to consider whether there was due investigation of the complaint and whether satisfactory evidence had been obtained to substantiate the accusation. Yet I would make some observations on these matters. 90.For myself, I have serious doubt whether the directors involved in the voting process properly understood the nature of the charge or accusation against the Plaintiff. Firstly, from the minutes of the various meetings leading to the making of the Expulsion Resolution, it is quite clear that some of the members of the Association including Mr KS Lam had queried as to why Section 1 was put down in the 1st Registration Form back in 1994. However, as clarified in the meeting referred to in §19 above and admitted by Mr Choi himself, it was by then not the fault of the Plaintiff in putting down “Section 1” in the 1st Registration Form and the Plaintiff should not be criticised for the switching of Sections. Yet, I am not certain whether the directors were clear about that in the voting of the Expulsion Resolution. Secondly, the key issue in the present case is the state of mind of the Plaintiff when he put down “Section 3” in the 2nd Registration Form in 2000. The directors had not been directed to focus on this particular issue. They had not considered or investigated as to when the Plaintiff “knew” about his possible connection with “沙溪聖獅”, and they might have overlooked the fact that whilst it was the Plaintiff who put down his native place as “東升鎮觀欄村”, the classification of this village as Section 3 had been vetted by the responsible Election Committee members. Whilst I agree with Mr Man that it was not absolutely necessary for the Defendant to obtain legal advice in the conduct of the expulsion proceedings, the absence of such advice led to the unsafe decision made by the directors in the process. 91.For these reasons, the Plaintiff is successful in the Wrongful Expulsion Claim and I make a declaration that the Expulsion Resolution is invalid. THE LIBEL CLAIM AND THE DEFENCE OF QUALIFIED PRIVILEGE 92.In my judgment, it is not open to the Defendant to argue that the Words do not bear the defamatory meanings as alleged by the Plaintiff, in particular the words referring to the integrity of the Plaintiff. The Words clearly imputed that the Plaintiff was accused of having questionable integrity and contravened the AA of the Defendant. It then stated the expulsion decision which conveyed a clear message to readers that the accusations made against the Plaintiff had been found to be substantiated. 93.The Defendant has put forward the Lucas-box meanings of the Words and seeks to justify the truth of those meanings. However, I agree with Mr Pow that they are mere repetition of the literary reading of the Words. They fail to meet the inferential defamatory stings that the Plaintiff had been found guilty of committing breach of the AA by providing false information to the Defendant and that his integrity was seriously questioned. The fact of expulsion carried the imputation that the accusations made against the Plaintiff were well founded. 94.As I find in favour of the Plaintiffs on the defamatory meanings of the Words, there is no corresponding defence of justification pleaded. In any event, by reason of my findings in the preceding section, in particular the Plaintiff was not guilty of dishonesty and he had no other improper motives in filling in his native place in the 2nd Registration Form, the Lucus-box justification must also fail because the Plaintiff had not acted in breach of Article 7 and the Expulsion Resolution was invalid. 95.Hence, the most relevant defence is one of qualified privilege. There is no serious dispute that, when the Defendant genuinely sought to inform its members about the expulsion of the Plaintiff’s membership, any such publication of the relevant notices would be protected by qualified privilege. Obviously, the Defendant had an interest and a moral, if not legal, duty to communicate to its members the fact of the Plaintiff’s Expulsion and the members had a corresponding interest in receiving the information.[16] 96.The main disputes relating to the availability of such defence are therefore as follows:
(i) Excessive and unnecessary publication 97.The Plaintiff’s primary contention is that the defence of qualified privilege is vitiated by the excessive and unnecessary publication of the Notices by means of newspapers of wide circulation for 3 consecutive days. By this means of publication, the defamatory Words were published to a wide range of persons, basically the public, who would have no reciprocal duty or interest to receive the Notices or common interest relationship with the Association. The Plaintiff’s secondary contention is that it was not necessary to include the reasons for expelling the Plaintiff, including the use of the words “誠信大有問題” (there was a big issue with [the Plaintiff’s] integrity), in the Notices. 98.In considering whether there is excessive or disproportionate publication, the person exercising the privilege is entitled to take all necessary or reasonable means of so doing and, provided 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.[17]Hence, the ultimate question to be asked is whether the manner of publication goes beyond the exigency of the occasion. In other words, the publication must be proportionate to the necessity of the occasions. 99.In considering this question, the following factors are relevant:
100.To justify the publication of the Notices for 3 consecutive days in 3 respective widely circulated newspapers, it is the evidence of Mr Choi that at the material time, there were 1,860 members of which only 1,300 could be contacted through correspondence. It was the practice of the Defendant to publish notices in newspapers for “important events” such as election of directors. Since the Plaintiff had persistently asserted that the expulsion was invalid, it was necessary for the Association to notify its members, especially those who could not be contacted through correspondence, about the process whereby the Plaintiff was expelled. 101.In his supplemental witness statement, Mr Choi added the following points:
102.Whether it be classified as “duty/interest” or “common interest” privilege, the first question is whether the Association was entitled to notify fellow members of the expulsion of the Plaintiff and the reason for such expulsion. 103.Article 7 specifically stipulates that “it shall not be necessary for the Association to disclose to members or make known to the public any reason for such expulsion”. I agree with Mr Pow that whilst Article 7 does not prevent the Association from so doing, a proper construction of Article 7 must mean that the Association has to pay heed to the potential damages to its members resulting from expulsion proceedings. Hence, the Association has a serious duty to consider whether to publish the reason for expulsion. Unless there is good reason for so doing, such course should not be lightly undertaken. In particular, there are no formal procedures for investigating the complaints against members and the expulsion resolutions can be made simply by a majority of directors. Under such circumstances, the Defendant should have been more cautious in deciding whether to inform the members and the public the reason for expulsion. In other words, it may well be the “duty/interest” or “common interest” for the Association to notify members of the fact of the Plaintiff’s expulsion, there is no necessary “duty/interest” or “common interest” to notify members of the reason for such expulsion. 104.In justifying the publication of the reason for the Plaintiff’s expulsion, the Defendant seeks to rely on the Plaintiff’s complaint about his expulsion heard by Mr KS Lam in the events of other Chungshan associations. However, the evidence of Mr Choi is extremely vague on such matter. Apart from the fact that the information was obtained hearsay through Mr KS Lam, it was only a complaint by the Plaintiff that he had been expelled. It cannot afford a good reason justifying the need to inform the members of the reason for expulsion. It certainly does not provide justification for the Defendant to publish the Notices, which contained the alleged reason for expulsion, to the public at large in the newspapers. 105.More importantly, the reason for the publication might not be the one as alleged. According to the minutes of the Board on 22 February 2013, the Defendant had received a letter from the Plaintiff’s solicitors challenging the expulsion and accusing Mr KS Lam of misleading the directors in the voting. Mr KS Lam then proposed, because of such letter, the Defendant should notify the public of the Plaintiff’s expulsion, using the words “公告天下” (announcing it to all the people in the world). 106.It is therefore clear from the Defendant’s record that the publication of the Notices was made in response to the legal letter sent by the Plaintiff, and not to notify members of the fact or the reason of the Plaintiff’s expulsion as alleged. Yet, the Plaintiff’s solicitors’ letter was only addressed to the Association, and the letter had not been disseminated to members generally. Under such circumstances, it cannot be said that the Defendant had a need to set forth its stance to members generally. It is not a case of reply to attack. Hence, the use of newspaper publications had nothing to do with some 560 members not contactable through correspondence. The express purpose was to achieve a notice to the public at large (公告天下). 107.Even if the Defendant had a justifiable reason to inform members of the reason for expulsion, the 1,300 contactable members could have been notified by correspondence. Since Article 7 provides that there is no necessity of informing members of the reason for expulsion, if 560 members were not contactable thorough correspondence, there was no necessity to go all the way just to reach them and inform them of the reason for expulsion. There is no basis to suggest that this information was so important even to these dormant members (休眠會員) that justifies publication also to a large number of uninterested persons. 108.Further, there were other means, such as posting a notice in the Association premises, that could have brought the expulsion notice to the attention of members when they attended the Association premises. It might well take some time to reach them especially those dormant members, but there was no urgency in such case. 109.Mr Man submits that publication through newspapers was the only possible and effectual mode of communication to all the Defendant’s members including those who could not be contacted by their correspondence address. It was also the practice of the Defendant to publish the notices of annual general meetings in newspapers. 110.If that was the genuine explanation for the publication of the Notices, I wonder why it was not the practice of the Defendant to publish expulsion notices in respect of other expelled members. Apart from perhaps the case of Mr KS Lam which happened much later, there were no other occasions where the Defendant had made use of such form of “communication”. As I see it, the use of such kind of “communication” was extremely personal. It was certainly not a usual practice. Given the sensitive nature of the expulsion of members, I find that the publication of the Notices, in particular with the inclusion of the reason for expulsion, went beyond the exigency of the occasion. 111.I also agree with Mr Pow that cross-examination of Mr Choi revealed further absurdity of the Defendant’s conduct. Out of these 560 members, Mr Choi accepted that some of them could have passed away. Some might not be interested in the Association’s affairs at all. Mr Choi said he was not sure how many of them fell within these categories. Mr Choi also admitted that there was no consideration as to why it would be important to inform these dormant members of the fact of the Plaintiff’s expulsion, let alone the reason for his expulsion. To publish the Notices in newspapers for 3 consecutive days just because one wanted to bring it to the knowledge of an unknown small number of dormant members that might still exist can hardly be proportionate or reasonable. 112.Even if the Defendant had wished to inform “friendly associations” of the Plaintiff’s expulsion, correspondence could have been used. In any event, it is even doubtful as to whether these friendly associations had any interest to know the reason of expulsion as opposed to just the fact of expulsion. 113.As admitted by Mr Choi, the main reason for publishing the Notices in newspapers was to notify members of the fact of the Plaintiff’s expulsion. In such case, there was no justification for not stating this simple fact alone. There was no reason to include the accusation of questionable integrity and breach of the AA. Mr Choi admitted that the contents of the draft notice were dictated by Mr KS Lam alone without reference to the Board. It was only after publication of the Notices that the Board passed a resolution in the meeting on 27 March 2013 (“the 27 March Resolution”) reaffirming the publication of the Notices. 114.For the reasons given above, I agree with Mr Pow that the wide publication of the Notices in 3 respective newspapers for 3 consecutive days was excessive and disproportionate publication. Given the clear wordings of Article 7, and the real reason for the publication of the Notices as shown in the minutes of the Board’s meeting on 22 February 2013, the use of such mode of communication was sheer excessive publication. Both the contents of the publication and the manner of publication far exceeded the exigency of the occasion. All these vitiate the defence of qualified privilege. (ii) Malice 115.Based on my findings above, it is quite unnecessary for me to consider the question of malice. But since counsel have made considerable submissions on such issue, I will give my ruling on such matter as well. 116.All the allegations of ill-spite were targeted against Mr KS Lam and Mr TK Li. There is no evidence that the other directors had grudges against the Plaintiff. The most that the Plaintiff can say is that the other directors might been misled or influenced by Mr KS Lam or Mr TK Li in voting in favour of expelling the Plaintiff, but this is quite different from saying that all these directors had ill-spite against the Plaintiff. 117.The decision to publish the expulsion notice in newspapers was a collective decision of the Board of the Defendant which comprised 64 directors. It is therefore not right to attribute the alleged malice of Mr KS Lam or Mr TK Li to the Defendant for the purpose of the publication of the expulsion notice. 118.Yet, the Board only agreed to publish the expulsion notice. The directors had not agreed on the contents of the notices to be published. As admitted by Mr Choi, it was Mr KS Lam, being the chairman of the Defendant at the time, who decided on the contents of the Notices. 119.On the issue of ill-spite harboured by Mr KS Lam and Mr TK Li, I accept the evidence of the Plaintiff as the truth. In fact, their attacks against the Plaintiff over the years are well documented. Further, I cannot quite understand why Mr KS Lam persisted to attack the Plaintiff for switching from Section 1 to 3 after so many years. To me, it is absolutely clear that the Plaintiff did not himself put down “Section 1” in the 1st Registration Form in 1994, and it is therefore extremely odd that Mr KS Lam still pursued the matter after such a long period of time. I cannot think of any other logical reason apart from ill-spite he harboured against the Plaintiff. 120.Hence, there are reasons for me to believe that Mr KS Lam, in deciding the contents and the wording of the Notice, had drafted the Notice in such way in order to bring maximum insult and damage to the reputation of the Plaintiff. As mentioned above, there was no need to publish the reason for the expulsion, not to mention the inclusion of the accusation of the questionable integrity on the part of the Plaintiff. As I see it, Mr KS Lam included the reason for expulsion in the Notices for his personal revenge against the Plaintiff. As Mr KS Lam knew that a lot of people unrelated to the Defendant would read the Notices, that would be a convenient occasion for him to settle his score against the Plaintiff. In other words, in including the reason for expulsion and the accusation against the integrity of the Plaintiff in the Notices, the dominant purpose of Mr KS Lam was one other than the purpose for which the occasion was privileged. It was not simply a case that Mr KS Lam disliked the Plaintiff.[18] 121.So far as the Libel Claim is concerned, the main complaint of the Plaintiff is that, instead of just publishing a more neutral notice informing the readers the expulsion of the Plaintiff’s membership, the Notices, by the inclusion of the purported reason for expulsion, went further to impute dishonesty and impropriety on the part of the Plaintiff, which resulted in insult and damage to his reputation. 122.The question that has to be asked is, therefore, whether the court should impute the malice on the part of Mr KS Lam in including the reason for the expulsion and the accusation in the Notices to the Defendant which is a corporation. 123.The relevant legal principles as to whether the malice of an individual should be attributed to a corporation have been set out in the case of Tam Heung Man v The Incorporated Owners of Lung Poon Court.[19] In deciding such issue, Lawrence Ng DDJ, applied the ordinary principles of agency and held that the state of mind of the chairman of the incorporated owners should be attributed to the incorporated owners concerned. 124.It is the evidence of Mr Choi that Mr KS Lam was regarded as the highest leader (最高領導人) of the Defendant. The evidence also shows that he played a leading role in orchestrating the expulsion proceedings against the Plaintiff. These may not by themselves be sufficient. However, what is important was that Mr KS Lam decided on his own the defamatory contents of the Notices without reference to the Board. The Board allowed him a free hand to do so only to pass a “posthumous” resolution, i.e. the 27 March Resolution, after the event. It is thus clear that it was Mr KS Lam who actually caused and arranged for the publication of the defamatory Words in the newspapers. The draft must either have been prepared or approved by him before the publication. Under such circumstances, the state of mind and ill-spite of Mr KS Lam in deciding on the defamatory contents of the Notices should be attributed as malice on the part of the Defendant in the publication of the Words. 125.In opposing the attribution based on Mr KS Lam’s authority and mandate to draft the contents of the Notices, Mr Man submits that it is not open to the Plaintiff to make such argument because it is not pleaded that the attribution is based on such authority or mandate. Further, there is nothing special about the wording of the Notices as they only repeat the wording of the Expulsion Resolution. 126.I disagree. In the particulars for malice pleaded in §§17(a)(34) & (35) of the Reply, the Plaintiff has expressly pleaded that it would not be necessary for the Defendant to disclose to the members or make known to the public any reason for the expulsion of the Plaintiff. Further, without seeking the opinion of the Board, some directors of the Defendant (presumably including Mr KS Lam), in the absence of justifiable reason, determined maliciously to publish the Words in newspapers. According to the pleading, such act was aimed at demeaning the Plaintiff in the eyes of the public. In my judgment, these pleas entitle the Plaintiff to run such argument and the Defendant cannot complain of any surprises at the trial. 127.Neither can the Defendant say that the Notices just repeat the wording of the Expulsion Resolution. As mentioned above, it was not necessary for the Defendant to inform members the reason of the expulsion, not to mention the general public who had no interest to receive the information. In determining the wording of the Notices, Mr KS Lam should have known that a lot of uninterested persons might read the Notices. Under such circumstances, apart from making use of the occasion to humiliate the Plaintiff, there was simply no reason to include the reason for expulsion and the accusation of questionable integrity in the Notices. Further, it is the state of mind of Mr KS Lam when he drafted or approved the wording of the Notices that counts, and so it would be quite irrelevant to examine the state of mind of the directors when they made the 27 March Resolution in the Board’s meeting to reaffirm the publication of the Notices. In any event, the resolution just referred to the publication of the Notices, not approval of the contents of the Notices. According to the record, such resolution was passed as a mere formality without any discussion at all. 128.For these reasons, I also find that the defence of qualified privilege is vitiated by malice. QUANTUM 129.I then turn to quantum. The purpose of general damages in libel cases is to compensate the claimant for the effects of the defamatory statement.[20] General compensatory damages serve 3 functions:[21]
130.Both parties have referred me to a number of decisions on the quantum of damages awarded in similar defamation claims in Hong Kong. It seems that they both accept that the case of Chan Iu Seng v. Ko Choi Hin & ors[22] is most relevant, as it was about a libelous publication arising out of disputes amongst clansmen in another Zhongshan clansman association in Hong Kong, i.e. Hong Kong Zhongshan Longzhen Clansman Association (香港中山隆鎮同鄉會). In that case, the plaintiffs were senior members of the clansman association with 6,000 members, and general damages of $300,000 were awarded to each plaintiff in relation to serious allegations against them (including allegations of deception, conspiracy and murderous conduct “謀財害命”). 131.The allegations against the Plaintiff in the present case are less serious. Yet in Chan Iu Seng, the publication was far more limited and the defamatory circular was merely circulated to the 6,000 members of the association, whereas in the present case, the Notices were published at large in 3 respective widely circulated newspapers in Hong Kong respectively on 3 consecutive days. I have also taken into account the fact that allegations of dishonesty and lack of integrity are quite damaging for a businessman like the Plaintiff. The allegations may adversely affect the reputation that the Plaintiff has cultivated in the business and clansman communities over the years. In these respects, the present case is more serious than Chan Iu Seng. Having considered all the circumstances of the case, I award $400,000 as general damages for the Libel Claim. 132.Mr Pow has invited me to make an award of aggravated damages, considering in particular the Plaintiff’s reputation in the Association and the society and that the publication of the Notices was a malicious act with the intention of subjecting the Plaintiff to insult and contempt. 133.Aggravated damages may be awarded to compensate for the additional injury caused to the claimant’s feelings by the defendant’s post publication conduct, such as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the claimant in a wounding and insulting way.[23] 134.In my judgment, the conduct of the Defendant is not serious enough to warrant an award of aggravated damages. Despite persons like Mr KS Lam might have harboured ill-spite against the Plaintiff, a lot of other members did not. Further, I do not accept that the absence of apology is a particular feature which calls for the award of aggravated damages in the present case. 135.For the above reasons, I find in favour of the Plaintiff on the Wrongful Expulsion Claim and make a declaration that the Expulsion Resolution is invalid. I also grant judgment in favour of the Plaintiff on the Libel Claim in the sum of $400,000. I make an order nisi that the costs of this action be to the Plaintiff with certificate for 2 counsel, which shall be made absolute 14 days after the date of the handing down of this Judgment.
Mr Jason Pow, SC & Mr Hatten Kong, instructed by Keith Lam Lau & Chan, for the Plaintiff Mr Bernard Man, SC and & Mr James Man, instructed by Hastings & Co, for the Defendant [1] The original term of directorship should be 2 years. Despite being elected in 2002, there were election disputes which only ended after litigation. The 17th Term therefore ended in 2007. [2] It is not in dispute that the Defendant has never promulgated any “by-laws”. [3] see §19 above [4] supported by the resident certification and the correspondence between the Plaintiff’s father and uncle [5] §108 of the Plaintiff’s witness statement [6] §109 of the Plaintiff’s witness statement [7] §110 of the Plaintiff’s witness statement [8] §111 of the Plaintiff’s witness statement [9] §113 of the Plaintiff’s witness statement [10] see §19 above [11] see Mr Choi’s supplemental witness statement at §4 [12] see §19 above [13] §16(6) of the Statement of Claim [14] §13(5) of the Reply denying the allegation in §26(4) of the Amended Defence [15] Re a Solicitor (2008) 11 HKCFAR 117 [16] see: Otuo v Watch Tower Bible and Tract Society of Britain [2019] EWHC 1349 (QB), Thompson v New South Wales Branch of the British Medical Association [1924] AC 764 [17] Gatley on Libel and Slander, 12 ed, at §14.76; see also Lau Liu Fai v. Lam Ki Tung & ors [2018] HKCFI 10, at §§69-70 [18] see: Jonathan Lu & ors v Paul Chan Mo-po & anr (2018) 21 HKCFAR 94 [19] [2019] HKDC 401, at §§160-166 [20] Gatley on Libel and Slander, 12 ed, at §9.4 [21] Chu Siu Kuk Yuen v Apply Daily Ltd & Ors [2002] 1 HKLRD 1, at §62 [22] unrep., HCA 2901 and 2935/2004, 28 January 2010 [23] Oriental Daily Publisher Ltd Ming Pao Holdings Ltd, supra, per Ribeiro PJ at §35 |
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