Chow Wing Kai also known as Wave and Wave Chow v. Liang Jing
Read the full judgment text of DCCJ 1258/2019 on BabelCite. This District Court judgment was delivered on 21 May 2021.
1. Mr Chow brought these claims in libel against Mr Liang in respect of his text messages sent by his mobile phone and his internet publications on various social media in or about March 2018. Mr Chow also has an alternative plea of malicious falsehood against Mr Liang arising from the same publications.
Cited by 5 cases · Cites 16 cases
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DCCJ 1258/2019 [2021] HKDC 609 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1258 OF 2019 -------------------- BETWEEN
--------------------- Before: His Honour Judge Kent Yee in Court Dates of Hearing: 23, 24 and 26 November 2020 Date of Judgment: 21 May 2021 -------------------- JUDGMENT -------------------- Introduction 1.Mr Chow brought these claims in libel against Mr Liang in respect of his text messages sent by his mobile phone and his internet publications on various social media in or about March 2018. Mr Chow also has an alternative plea of malicious falsehood against Mr Liang arising from the same publications. 2.Mr Liang disputes liability. He disputes the pleaded meanings of the words under complaint and the alleged defamatory nature of those words. His defence includes justification and fair comment. 3.On the other hand, Mr Liang does not accept the quantum of damages claimed by Mr Chow, though he has made an admission to his publications of the allegedly defamatory words to a much lesser extent is his pleading. Allegedly defamatory words 4.There are altogether three sets of words under complaints. They contain Mr Liang’s negative comments on Mr Chow. I shall first set them out. 5.The first set of words written in the Chinese language is as follows:
6.The certificated English translation of the 1st Words is contained in Annexure I. 7.The second set of words written in the Chinese language is as follows:
8.The certificated English translation of the 2nd Words is contained in Annexure II. 9.The third set of words were written in English and is as follows:
10.It is alleged that the various online social media where Mr Liang published the 3rd Words include https://zine.la and http://baijiahao.baidu.com/s?id=1600425829123973172&wfr=spider&for=pc and/or as text messages via WhatsApp and WeChat by his mobile phone. The Words were further republished in the websites enlisted in Schedule 2 annexed to the Statement of Claim. 11.Mr Chow says the Words are defamatory of him and the publications of the Words were malicious. As a result, he has suffered considerable distress and embarrassment and his reputation has been seriously damaged. He asked for damages including aggravated and exemplary damages and injunctions relating to the publications. Background facts 12.Both Mr Chow and Mr Liang worked with AIA International Limited (“AIA”) at the material times. 13.Mr Chow earned his bachelor degree in electronic engineering from the Hong Kong Polytechnic University in 1997 and upon graduation he joined AIA. He became a District Director in or about December 2011 (“DD”) and signed a written agreement entitled “Career Representative District Director’s Contract” with AIA (“the DD Contract”). 14.Under the DD Contract, Mr Chow is entitled to form his own team of career representatives to be recruited by him for AIA in Hong Kong. Mr Chow is responsible for their training and supervision of such career representatives recruited. It is expressly provided in the DD Contract that AIA should not control the methodology of Mr Chow’s performance of his obligations thereunder. 15.Hence, Mr Chow created his own team called the PX-K-U District, otherwise known as “U District”, “U-zone”, “Utopia”, “the Utopia team”, “理想區” and “U 區” (“the Team”) and he became the head of the Team. There are more than 200 other teams within the operation of AIA. 16.Mr Liang graduated from Tsinghua University with a bachelor degree in engineering in electronics in 1997 and earned a master degree from Fudan University and a Master of Business Administration degree from the University of Michigan respectively in 2000 and 2008. Before he joined the insurance profession in 2017, he had worked for reputable financial institutions in the US, the Mainland and Hong Kong. 17.Mr Liang decided to join AIA because of the recommendation of Mr Cui, also known as Winson, who is his fellow alumnus from Fudan University. Winson joined AIA in January 2006 and he is the Senior Unit Manager of the Team. 18.On or about 26 July 2017, Winson asked Mr Liang to sign, among other things, a document entitled “PX-K-U District – Constitution and Regulation” (“the Constitution”). The Constitution set out, among other matters, the rules of the Team. Mr Liang did so as witnessed by Winson to indicate his acceptance of the contents of the Constitution. 19.A few days later, on or about 1 August 2017, Mr Liang signed an insurance agent contract known as “Career Representative’s Contract” with AIA (“the Contract”). 20.Mr Liang started working under Winson in his sub-team called Win Team within the Team after he joined the Team as an associate member. Subsequently, in or about December 2017, Mr Liang changed to be a core member. The triggering event causing the rift between the parties is Mr Liang’s application to revert to be an associate member made at the end of February 2018 (“the Application”). 21.It is necessary at this juncture to explain the difference between an associate member and a core member of the Team. The fundamental difference between these two memberships is that the former works on a full-time basis whereas the latter works on a part-time basis. The former receives more benefits and the letter enjoys exemptions from intra-team disciplinary financial penalties. 22.There is a third membership within the Team known as Premier Lady which is open to housewives. 23.Mr Liang made the publications shortly before and after a written notice of termination of the Contract was issued by AIA to him by way of a letter dated 5 March 2018 (“the Termination Letter”). 24.Three other staff members of AIA would be mentioned in this Judgment. First, Mr Peter Crewe was at the material time Chief Executive Officer of AIA. Mr Liang sent him a message through Linkedin.com to complain about Mr Chow (“the Complaint Message”) and it contained the 3rd Words. 25.Next is Ms Min Rong whom Mr Liang refers to as Maggie. Maggie assumed the position of District Manager in the Team in 2018 and she was also the immediate superior of Mr Cui. Maggie was directly accountable to Mr Chow. 26.Lastly, Ms Zhang Lei, also known as Lily, is a fellow member of the Team and Mr Liang published the 1st Words to her in their WeChat conversation. Issues 27.The issues identified by Mr Lam, for Mr Chow, in his opening submissions, indeed arise from the pleadings and are as follows:
Reference Issue 28.In his pleading, Mr Liang does not admit the Words were published of Mr Chow. Mr Lo, for Mr Liang, maintains this position in his opening submissions. However, in his closing submissions, Mr Lo concedes that reference is no longer a live issue. I believe that this concession is realistic and reasonable. 29.The 1st Words make reference to “Wave” and “AIA”. The 2nd Words refer to the Team and Mr Chow. The 3rd Words make explicit reference to the Team and Wave Chow in his position as DD. Given all these references, there is utterly no room for any denial of references to Mr Chow. Meaning and Defamatory Issues 30.The pleaded meanings of the Words alleged by Mr Chow are as follows:
31.The rival meanings of the Words contended by Mr Liang in his pleading are as follows:
32.Both parties have no dispute about the following principles summarized by Lok J in Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at §42 relating to the determination of the meanings of the words under complaint in defamation cases:
33.Mr Lo makes two valid points about the meanings of the Words pleaded by Mr Chow. First, the 1st Words on the one hand and the 2nd and 3rd Words on the other were published separately and they cannot, and there is no suggestion that they should, be treated as a single publication. It is incumbent on Mr Chow to identify clearly which parts of the Words carry any one(s) of the pleading meanings. A broad and all-encompassing plea that all the impugned statements together carry the alleged defamatory imputations is clearly unsatisfactory: The Chambers of Hong Kong Computer Industry Co Ltd. v. Hong Kong Computer Association Limited (unreported, HCA 2124/2012, 9.11.2015) at §32 per Recorder Ambrose Ho SC. 34.Second, whilst evidence cannot be given as to meaning: Gatley on Libel and Slander (12th ed), §32.20, this court has to have regard to the circumstances and context in which the Words were published. The entire texts or articles are to be read as a whole and not just the Words so as to ascertain their natural and true meanings. 35.This is important because the 1st, 2nd and 3rd Words were actually the extracts from three longer messages and texts. The rest of the messages and texts may have a bearing on the actual meanings of the Words. 36.Lastly, Mr Lam makes a valid point against an over-analytical approach in interpreting the meanings of words appearing on social media such as Facebook and Twitter. He helpfully refers to a recent judgment of the UK Supreme Court in Stocker v Stocker [2020] AC 593 where Lord Kerr JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin JJSC agreed) disapproved the trial judge’s dictionary approach (affirmed by the Court of Appeal) and explained the special features of publications on social media. I find his dictum including his citation of other decisions to be of particular relevance and use and so I set them out as follows:
37.In light of this authority, I agree with Mr Lam that I should put myself into the position of a social media user and take an impressionistic instead of analytical approach in ascribing meanings to the Words published by way of posts on social media. 38.With these principles in mind, I now embark on the exercise of determining the meanings of the Words. The 1st Words 39.The evidence of Mr Liang in regard to his publication of the 1st Words is unchallenged. They were actually part of a private WeChat conversation between Lily and him on 3 March 2018. The entire conversation was exhibited and I have read that same in its entirety. 40.There is no suggestion that the conversation was open to anyone other than Lily and Mr Liang. It has never been republished to anyone else. 41.The conversation was started by Lily’s enquiries about the move of Mr Liang after she noticed his departure from “WorkDo”. WorkDo is an internal administration system of the Team. Mr Liang replied that he intended to change to be an associate member and it was likely that he would leave the Team. He told Lily that he first gave a prior notice to Winson that he would change to be an associate member but Mr Chow had gone too far (the original text being “欺人太甚”). He then forwarded to Lily the screenshot of a public announcement of Mr Chow in a WhatsApp chat group called “2018 UTOPIA Dept Head” (“the Announcement”). He went on to express his dissatisfaction with the manner in which Mr Chow handled his application and further complained about Mr Chow’s management of the Team. 42.Mr Liang obviously failed to persuade Lily. Lily was of the view that there should be better communication between the parties and that the Team had its set of rules which might be effective for young people. 43.Mr Chow has not stated precisely which of the 5 pleaded meanings can be ascribed to the 1st Words. I believe the sting of the 1st Words is “欺人太甚”, which according to Mr Chow means that he was alleged to be a bully and that he bullied those people in the Team like Lily who did not know what their rights were. 44.I agree with Mr Lo that the use of the words “欺人太甚” alone did not bear any implication of bullying on the part of Mr Chow. However, his subsequent use of the verb “欺負” leaves no doubt that Mr Liang alleged that Mr Chow bullied certain agents of AIA including Lily by mistreatments. The examples given by Mr Liang including imposition of penalty for lateness or absence and restrictions on the agents between their clients and going on business trips relate to the mistreatment of the members of the Team. It is clear to me that by the 1st Words, Mr Liang alleged that Mr Chow took advantage of people like Lily in the Team and mistreated them. 45.I, therefore, hold that the 1st Words bore the pleaded meaning that Mr Chow bullied and mistreated members of the Team. He bullied them in the sense that he took advantage of their submissiveness and he imposed inappropriate rules and restrictions on them. 46.Then I have to consider whether this single meaning is defamatory. At common law, an imputation will be treated as defamatory if:
47.The issue of seriousness calls for the court’s consideration of matters such as the nature and inherent gravity of the allegation, whether the publication was oral or written, the status and number of publishees and whether the allegations were believed, the status of the publisher and whether this makes it more likely that the allegation will be believed, and the transience of the publication. Each case will depend on the particular facts. (Gatley, §2.4). 48.I first refer to Daniels v BBC [2010] WHC 3057 (QB) where the claimant complained about certain comments made about his performance in his job position by his fellow colleagues. Sharp J considered the threshold of seriousness and pointed out that criticisms of someone’s performance at work might be defamatory of him or her depending on the circumstances and whether words are capable of being defamatory always depends on what was said and about whom. The key question is whether an ordinary, reasonable and sensible person could possibly think less of the claimant personally as a result of what was said and minor criticisms of such nature are not torturous. 49.For the 1st Words, I take into account the fact that the allegation itself was not a serious type, the fact that they were published as a private conversation with Lily as a fellow colleague albeit made in written form, the immediate refusal of Lily to accept the validity of the allegation and the 1st Words were intended to be read once for the instant response of Lily as text messages. Mr Liang sent these texts to Lily in the course of his sharing of his unpleasant working experience in the Team with Lily and he was critical of Mr Chow. This kind of private conversations is only common place among fellow employees. I conclude that the threshold of seriousness is not surmounted in respect of the 1st Words in the particular circumstances in this present case. The 2nd and 3rd Words 50.Again, the circumstances and the context in which the 2nd Words were published are not in dispute. The 2nd Words were on some occasions published together with the 3rd Words. The 3rd Words were first published by Mr Liang on 14 March 2018 in the Complaint Message. The publication to Mr Crewe is not, quite rightly, the subject matter of this action. 51.On 30 April 2018, Mr Liang published a post on Facebook which consisted of the 2nd Words as the main text. There were three attachments posted together with the main text and they included the Announcement, a lengthy explanatory text message sent by Mr Liang to Mr Chow on or about 6 March 2018 and the Complaint Message containing the 3rd Words. 52.Round about the same time, Mr Liang republished an identical post on his Zine blog (“the 1st Zine Post”). Mr Liang further shared the hyperlink to the 1st Zine Post in 3 of his WeChat groups created and administered by him known as “HKEEC香港企業家”, “TGIF Mixed” and “香港復旦校友群” (collectively “the 3 WeChat groups”). 53.On or about 7 May 2018, Mr Liang published another post on his Zine blog (“the 2nd Zine Post”) and it contained part of the 2nd Words. It also shared the hyperlink to the 1st Zine Post. 54.There have been republications of the 1st and 2nd Zine Posts by others beyond the control of Mr Liang. First, on 11 May 2018, a person named “圈哥” republished the 1st and 2nd Zine Posts in a WeChat public newsgroup called “香港保險圈”. According to this person, his post was soon deleted on the following day. Mr Liang left his messages to these posts thanking him for republishing the 1st and 2nd Zine Posts. 55.On or about 14 May 2018, part of the 1st and 2nd Zine Posts were republished on Baidu by an unknown person with an account name “三零年代”. There was a Chinese caption for this post and it read “香港友邦代理人被離職，驚爆圈內的潛規則!” (Hong Kong AIA agent dismissed; surprisingly exposing sub-rules in the circle!). Again, Mr Liang left his message to this post thanking the person for republishing his posts and he even disclosed that he had gathered that Mr Chow was prepared to issue a legal letter to him by his lawyers. 56.For the 2nd Words, I opine that they bore, in essence, the following meanings:
57.For the 3rd Words, I find that they bore the following meanings:
58.In my view, the 2nd Words per se did not bear any of the pleaded meanings and did not have any defamatory imputation. I do not accept that the 2nd Words bore the meaning that Mr Chow acted illegally and that he was a hypocrite. If one gives legally questionable treatments to others, it does not mean that he acts illegally. Further, if one fails to act in accordance with his promotional materials in relation to the Team, it does not follow that he is a hypocrite. 59.I accept the pleaded meaning that Mr Chow mistreated members of the Team by legally questionable and unethical treatments. This mistreatment took toll on the clients, agents and reputation of AIA. 60.However, I cannot accept the 3rd Words impugned the morals of Mr Chow. They merely relate to the work and management style of Mr Chow. 61.By the meanings of the 3rd Words, Mr Liang made grave allegations against Mr Chow in his profession. The threshold of seriousness is obviously met. I believe that the ordinary, reasonable and sensible person would possibly think less of Mr Chow personally by reason of the 3rd Words and they amount to an adverse reflection on the professional reputation of Mr Chow. 62.Thus, I come to the conclusion that the 3rd Words are defamatory of Mr Chow. 63.At common law, defamatory statements are presumed to be false until the authors raise and prove justification. I now turn to the plea of justification advanced by Mr Liang. 64.Mr Chow and Winson testified in support of the claim against Mr Liang. Mr Liang alone testified for his defence. Justification Issue 65.Mr Liang pleaded a number of factual allegations to support his defence of justification.[1] I have studied all of these allegations in detail. A vast majority of them relate to some uncontroversial background information concerning his joining of the Team and the circumstances under which the Contract was terminated. 66.Mr Liang further prays in aid section 26 of the Defamation Ordinance, Cap. 21 (“the DO”). It provides,
67.In his pleading, it is plain that Mr Liang seeks to justify the sting of the 3rd Words in that Mr Chow had procured the sudden and unjustified termination of the contractual relationship between AIA and him, that certain customs of the Team were questionable and detrimental to the clients of AIA, insurance agents of the Team, as well as AIA’s reputation. 68.For the former allegation, Mr Liang avers that Mr Chow did not provide a reasonable opportunity or sufficient time for him to explain his position. Further, Mr Chow did not provide any or sufficient reason for the termination of the Contract. Mr Liang refers to clause 23 of the Contract which provided that for a party to terminate the agency contract without reason, a 15 days’ notice in writing is required. 69.For the latter allegation, two examples of such questionable customs in the Team were given. First, Mr Liang complained about the imposition of fines ranging from $10 to $500 to be paid towards a common fund if an insurance agent was late for work, meetings, training and/or activities of the Team or even absent and late charge is payable on such fines too. 70.Mr Liang avers that the provision in the Constitution providing for the imposition of such fines could be regarded as a penalty clause unenforceable under Hong Kong laws. 71.Another allegedly questionable custom is that if an insurance agent at the Team fails to attend a “drilling session” where insurance agents would role-play as customer and insurance agent for four times, he or she would be publicly criticised in the chat groups. 72.Mr Liang avers that these customs were questionable as they were detrimental to the rights and interests of insurance agents in the Team. They were also detrimental to the interests of the clients of such insurance agents affected and the reputation of AIA in general. 73.I should dispose of this allegation briefly. Despite the express averments in the pleading, Mr Liang said nothing about the latter custom in his witness statements. Nor did Mr Lo cover this in his opening submissions. I should reject this allegation without evidential basis. In any event, even if there was such a custom, it is neither legally questionable nor ethnical in my view. Ungrounded termination? 74.There are factual disputes about the circumstances leading to the termination of the Contract. In my view, there is no need to resolve all those disputes. The undisputed documentary evidence can by and large dispose of this issue. 75.First, the relevant provision in the Contract should be examined. Clauses 23 to 25 relate to the determination of the Contract. Clause 23(b) provided that the Contract may be terminated without any reason thereof by either party upon 15 days’ notice in writing. 76.Clause 25 provides for certain occurrences of events upon which the Contract became automatically terminated without prior notice to Mr Liang. Such events included certain breaches of the terms or conditions of the Contract and the agent’s commitment of any misconduct. 77.On or about 3 March 2018, Mr Chow and Winson jointly signed a form entitled “Agent’s Termination/Resignation” and recommended the termination of the Contract with immediate effect on the same date (“the Recommendation”). The reason was given in the following terms: 雙方無法正常合作 (Both parties cannot cooperate normally). 78.It appears that Mr Chow and Winson sought to invoke Clause 25 to terminate the Contract without prior notice to Mr Liang. However, their proposal was not accepted by AIA. 79.Instead, AIA issued to Mr Liang the Termination Letter, which expressly referred to the notice provision in the Contract. By the Termination Letter, AIA gave Mr Liang 15 days’ notice to terminate the Contract with effect from 22 March 2018. There is no debate about the validity of the written notice. 80.In the circumstances, AIA invoked Clause 23 to terminate the Contract without any reason by giving the contractual 15 days’ notice in writing. In other words, the termination of the Contract was indeed ungrounded. Mr Liang was not provided with a reason or justification for the termination. Under the Contract, AIA was entitled to terminate the Contract without any reasons so long as the requisite written notice was given. 81.Thus, the compliant about ungrounded termination of the Contract in the Complaint Letter as published as the 3rd Words is baseless. It gives the impression that the termination was wrongful but in fact it was in fact permissible with the 15 days’ notice under the Contract. In my judgment, Mr Liang is unable to justify the sting of the 3rd Words, i.e. wrongful termination of the Contract. 82.I understand that the contention of Mr Liang that the Contract was de facto terminated with immediate effect with his accesses to his office and his data files being blocked immediately on 4 March 2018. Mr Liang may complain to AIA about the lack of 15 days’ notice in reality despite the Termination Letter. It is a matter of AIA to deal with and I cannot accept that it was Mr Chow who procured the ungrounded termination of the Contract. 83.This conclusion is sufficient to dismiss the defence of justification in respect of the allegation of ungrounded termination of the Contract procured by Mr Chow. 84.However, the focus of the parties at the trial appears to be on the circumstances concerning Mr Chow’s handling of the Application and his decision to making the Recommendation. I do not think they have anything to do with the meanings of the 3rd Words that I have found. I believe they only relate to the pleaded meanings of Mr Liang about Mr Chow’s irrational and unreasonable manner in handling the Application and his procurement of the termination of the contractual relationship between AIA and him in a way that is different from the image and values he previously promoted in the Team. I have held against such meanings. I do not think any of the Words bore this meaning. It follows that I need not consider or determine these matters. 85.For completeness, I should point out that on the evidence of Mr Liang, he left certain chatgroups of the core members on 28 February 2018 even before an approval was obtained from Mr Chow for the Application. I accept the evidence of Winson that he never indicated to Mr Liang that the Application could be left to him. I opine that Mr Chow was entitled to take this matter seriously. I accept his evidence in his witness statement in this respect. I cannot impeach his joint decision with Winson to make the Recommendation. It was neither irrational nor unreasonable. I cannot see how he violated the brotherhood spirit advocated by him within the Team. 86.I do not accept Mr Liang’s explanation about why he could not have responded to Mr Chow’s request for a meeting in the afternoon of 3 March 2018 made via Maggie in the early afternoon. The non-response was a factor that Mr Chow was entitled to take into account though he did not expressly rely on this. 87.Lastly, Mr Liang complained about the harsh treatment he received such as denial of access to his office on 4 March 2018 without prior notice and to his user account at AIA on 5 March 2018 after Mr Chow announced the termination of the Contract at a meeting with the agents of the Team. I do not find these complaints to be relevant to the meanings of the 3rd Words and they cannot possibly assist the defence of justification. However understandable the displeasure of Mr Liang was, I am of the view that AIA was well entitled to protect its commercial interests by legal means before the Contract came to an end in accordance with the Termination Letter. Legally questionable and unethical mistreatment? 88.I proceed to consider whether the imposition of fines within the Team is a legally questionable and unethical mistreatment of the agents. In the first place, I examine the nature of such imposition of fines. The starting point is the Constitution and its relevant provisions are Terms 3 and 9 (collectively “The Terms”). 89.Term 3 provided that all agents in the Team must arrive at the Team’s office before 9:15 am during weekdays, and that if agents were late, they must contribute towards the Team’s operation funds in the details will be given in Term 9. 90.Term 9 provided, among other matters, under the heading disciplinary sponsorship, the schedule of fines ranging from HK$10 to HK$200 for different durations of lateness for office during weekdays and Saturdays. All absentees will be fined HK$500. 91.On the other hand, there is another schedule of fines ranging from HK$10 to HK$200 for different durations of lateness for meetings, training sessions and activities. All absentees will be fined HK$200. 92.Mr Chow’s case is that Mr Liang signed on the Constitution to acknowledge his understanding of its terms and his willingness to abide by such terms. Therefore, the Constitution is a legally binding, effective and fully enforceable contract between Mr Chow and him. Thus, Mr Liang cannot be heard to complain about these provisions. 93.Mr Liang at one stage by his pleading denied having signed any document to agree to the Terms. This plea was subsequently abandoned. Instead, it is pleaded that the relevant clause in the Constitution providing for the imposition of fines, i.e. the Terms, could be regarded as a penalty clause unenforceable under Hong Kong laws. 94.Mr Lam submits that the Terms do not offend the penalty rule and are legally enforceable. His major contention is that the Terms merely created primary obligations and should not be regarded as a penalty for a breach of a contractual term. In the absences of any breach, the fines imposed pursuant to the Terms are no penalty. In this regard, he relies on Manulife (International) Limited v Chong Wai Ling also known as Chong Wai Ling Frankie and Anor. [2018] HKCA 86, Bank of China (Hong Kong) Ltd v Eddy Technology Co Ltd [2019] 2 HKLRD 493 and Cavendish Square Holding BV v Makdessi [2016] AC 1172. 95.Next, Mr Lam submits that even if the penalty is engaged, the correct test in law is whether the payment obligation in question is extravagant, exorbitant or unconscionable. He relies on Bank of China (Hong Kong) Ltd and Cavendish Square Holding BV to support his submission. 96.In light of Manulife (International) Limited, my analysis is as follows. If the Constitution is a legally binding contract, the stipulated time for the agents to report duty should be a contractual term which the agents of the Team are obliged to comply with. This is arguably a primary obligation and in breach of the same, pursuant to the Terms, fines will be imposed on the agents. The Terms per se do not appear to impose other obligations on the agents on certain contingencies. I can see force in Mr Lo’s submission that the Terms should be regarded as a penalty. 97.But this is not the end of the matter and there seems to be a new development of the law in this area. The question of extravagance, exorbitance and unconscionability was considered by Lord Mance JSC in Cavendish Square Holding BV. After reviewing some cases, Lord Mance JSC had this to say about penal provisions in contracts at §152,
98.Lam VP in Bank of China (Hong Kong) Ltd referred to the foregoing dicta in Cavendish Square Holding BV where Cine Bes Filmcilik ve Yapimcilik AS v United International Pictures [2003] EWCA Civ 1669 was expressly approved. Lam VP observed that there was no evidence to show that the default rates in question were extravagant, exorbitant or unconscionable. However, the observation was only obiter as the default rates were found not a penalty in the first place. 99.In the present case, I cannot come to the conclusion that such fines payable pursuant to the Terms are extravagant, exorbitant or unconscionable. As stated in Term 9, the objective of the imposition of fines is to maintain discipline and promote good work habits and there is plainly a legitimate interest of the Team to serve. 100.I actually need not give a definite answer as to whether the Terms are legally unenforceable here. It suffices for Mr Liang to show that the imposition of fines pursuant to the Terms is legally questionable. I am convinced that he has discharged the onus. 101.Be that as it may, even if the Terms turn out to be unenforceable legally, I cannot agree that the imposition of fines has anything to do with morals and ethics, especially when Mr Liang has abandoned his allegation that such fines would somehow end up in the pocket of Mr Chow personally by way of re-amending his Defence. 102.Hence, I cannot accept that the imposition of fines, regardless of its legal enforceability, can be characterised as an unethical treatment of the agents. The imposition of fines clearly serves the interests of the Team and in turn the interests of the agents who are able to be punctual. 103.I should mention that in the closing submissions of Mr Lo, he refers to some other problems with the imposition of fines such as its inconsistency and lack of clarity. I do place any weight on these matters. They are not pleaded and in any event they have nothing to do with the legal enforceability of the Terms. The fact that other team members have challenged the fine system does not assist Mr Liang, either. 104.I should add that in reply to the Complaint Message, which contained the 3rd Words, AIA issued to Mr Liang a letter dated 16 May 2018. By the said letter, AIA rejected the complaint mounted against Mr Chow and AIA closed the case. It further warned Mr Liang against further publication of defamatory statements on social media. This letter shows that the complaints of Mr Liang in the view of AIA were unfounded and AIA did not find anything wrong with Mr Chow’s management of the Team including his handling of the Application and termination of the Contract. 105.In fact, the unchallenged evidence of Mr Chow is that under the DD Contract, as with other DDs of AIA, Mr Chow is given full power and rights to manage his own team by his own rules and methodology. 106.To conclude, Mr Liang is unable to justify the 3rd Words. Fair comment Issue 107.Mr Liang’s alternative defence as pleaded is that the Words, to the extent that they are defamatory of Mr Chow, were fair comments on matters of public interest, namely the welfare and price of insurance agents, clients and insurance companies, and ones which could have been made by an honest person in all the circumstances. 108.Mr Liang further relies on section 27 of DO. 109.Mr Lam helpfully refers to the leading authority on this defence, namely, Cheng & Another v Tse Wai Chun (2000) 3 HKCFAR 339. There, Lord Nicholls NPJ set out the well-established ingredients of this defence (at pp.347B-348B):
110.First I determine whether the 3rd Words cover matters falling within the domain of public interest. Lord Nicholls NPJ in Cheng & Anor. referred to London Artists Ltd v Littler [1969] 2 QB 375 at p.391 where Lord Denning MR observed that he would not himself confine public interest within narrow limits. Lord Denning MR had this to say,
111.Indeed, in decades later, Lord Philips in Joseph v Spiller [2011] 1 A.C. 852 at §101 observed that the concept of public interest has been greatly widened. 112.Mr Lo first refers to Nicola Horlick v Associated Newspapers Ltd [2010] EWHC 1544 (QB). There, Mr Justice Eady ruled that the comments on the professional integrity of a celebrated fund manager related to matters public interest. The claimant fund manager lunched and managed a fund known as Bramdean Alternatives and her performance came under fire. The defendant newspaper published an article, which made a number of accusations including an allegation that she had lost all credibility as a fund manager. 113.Mr Justice Eady explained his ruling in the following terms at §25:
114.Mr Lo submits that Nicola Horlick is similar to the present case. AIA is a public listed companies and indeed a renowned insurance company worldwide. He submits that Mr Chow’s conduct of management and enforcement of rules within the Team naturally arouses legitimate public concern and invites open expressions of opinion. Accordingly, Mr Liang’s comment on how Mr Chow, with the authority of AIA, managed the Team is a matter of public interest. 115.Mr Lam disagrees. He makes the following submissions:
116.I agree with the submissions of Mr Lam and hold that the 3rd Words do not relate to a matter of public interest. 117.The facts of Nicola Horlick are very much different from the present case. In that case, the public was of course interested in whether the claimant, who actually launched a fund traded on the London Stock Exchange main market and managed the fund afterwards, properly discharged her professional duty and maintained her professional integrity. The interest of both the investors buying the fund and the prospective investors was at stake. 118.As stated above, the crux of the 3rd Words is about the allegedly ungrounded termination of the Contract and the allegedly legally questionable and unethical rules of the Team dealing with the lateness and absence of its agents. These matters are very much internal in nature and do not affect the public at large. 119.These matters can by no stretch of the imagination concern the overall operation of AIA and the insurance products it sells. These matters are merely confined to the Team, which is a tightly-knitted entity with limited membership. There are a large number of other teams in AIA (more than 200). I do not accept the far-fetched allegation that these internal matters would affect the interest of the clients of AIA. I believe people seeking to be insured by AIA would not bother with how a particular AIA agent is dismissed and how a late or absent agent is internally disciplined by AIA by a small fine. 120.In the absence of public interest, the defence of fair comment cannot get off the ground. 121.I should make it clear that in any event I cannot accept that the underlying allegations are proved to be true. In other words, the comments made are without factual basis. 122.Furthermore, for the purpose of fair comment, I am not satisfied that the 3rd Words could have been made by an honest person. No matter how unsatisfied with the manner in which the Contract was terminated and the imposition of fines under the Constitution, Mr Liang, if acted honestly, should not have launched an attack on the morals of Mr Chow and alleged that he had given the members of the Team unethical treatments. 123.In conclusion, Mr Liang cannot make out the defence of fair comment. Conclusion on liability 124.I have held that the 3rd Words bore defamatory imputations and Mr Liang fails to justify them. His defence of fair comment is also rejected. I need not deal with the alternative claim of malicious falsehood, which adds little to Mr Chow’s libel claim. Judgment should be entered against Mr Liang in respect of Mr Chow’s libel claim based on the 3rd Words. Relief issue 125.Now I turn to Mr Chow’s claim for general damages, aggravated damages as well as exemplary damages for the libel. 126.The cardinal principles relating to general damages in libel cases were explained by Ribeiro PJ in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 from §§35 to 40 where the following words of Sir Thomas Bingham MR in John v MGN Ltd [1996] 3 WLR 593 with approval:
127.Ribeiro PJ further cited the following list of relevant factors of Hirst LJ in Jones v Pollard [1997] MLR 233 at 243:
128.Mr Lam cites two cases to this court by way of comparables. First, DHCJ Saunders in John Raymond Luciw v Wolfgang Derler and Ors., (unreported, HCA 2148/2011, 29.7.2013) made an award of HK$1 million for, in the own words of the judge, a particularly nasty defamation involving an allegation of homosexual paedophilia published on Facebook. 129.The other case is International Social Service (Hong Kong Branch) v Vision First, unreported, HCA 683/2014, 23.6.2017. There, Chung J made an award of HK$800,000. There were 21 defamatory articles published through the internet with a maximum number of readers of about 800. The libel involved allegations of corruption and deception of the government. The defendant persisted in the libel indicating that he would continue to publish the libel. 130.I do not find these two authorities helpful. The defamatory imputations there were plainly far more serious than those in the present case. 131.Mr Lam further submits that Mr Liang deliberately refrains from producing his Facebook activity lot so that it is unknown when he allegedly committed or privatised the offensive post and the exact number of people who have read the offensive post. Mr Lam urges this court to make an adverse inference by reason of this non-disclosure. 132.On the other hand, Mr Lo cites to this court three local decisions[2] and submits that the appropriate award should be no more than HK$50,000. 133.In assessing the quantum of general damages, I take into account all the circumstances of this case and in particular the following matters:
134.Weighing all the foregoing factors, I conclude that the appropriate award should be HK$250,000. Aggravated and exemplary damages 135.Mr Lam suggests the quantum of damages under these two heads to be HK$100,000. He submits that the conduct of Mr Liang in this suit is malicious and outrageous and he principally relies on the fact that at the early stage, Mr Liang even suggested that Mr Chow had committed an offence under section 9(1) of the Prevention of Bribery Ordinance, Cap.201 in his Amended Defence (§12(17)). 136.Mr Liang actually did more than that. He even alleged that Mr Liang used the fines personally in breach of his fiduciary duties to AIA. It was only right to have this allegation removed by way of re-amendment to his subsequent pleading. 137.His conduct could be said to be outrageous and I agree that he had rubbed salt into the wounds of Mr Chow. His subsequent deletion of these allegations turns out to be a strong mitigating factor for him though. 138.But I should make it clear that I do not accept the allegation that Mr Liang published the relevant Words with a view to personal financial gains. I do not think he set his mind on the remote possibility that prospective insurance agents may turn their back on Mr Chow and work for him instead. 139.Looking at the matters in the round, I would make an award of HK$50,000 as aggravated and exemplary damages. Injunction 140.Though Mr Liang, under cross-examination, once indicated that he would not publish the relevant Words again and would move on, as rightly pointed out by Mr Lam in his closing submissions, his immediate response to the question whether he would republish the Words in the future was alarming. He refused to answer this hypothetical question. 141.Therefore, I cannot take his indication seriously. I have heard no hardship that Mr Liang would suffer if such injunctions are granted against him. I am minded to exercise my discretion to grant the injunctions sought insofar as the 3rd Words are concerned to afford further protection to Mr Chow. Apology 142.Mr Chow seeks an order for compelling Mr Liang to make an apology to him in relation to the libel. 143.Mr Lam submits that under section 52 of the District Court Ordinance, Cap.336 (“DCO”), which provides that this court shall have jurisdiction to grant and to enforce injunctions of whatsoever nature. Thus, there is no doubt that this court has jurisdiction to make an apology order, though he accepts that such an order has never been made in a libel action in the Hong Kong courts before. 144.I agree with Mr Lo that section 52 of the DCO is of no application. The injunction sought does not relate to any of the matters under section 52(1). Mr Lo is right in his submission that section 52B is the relevant provision providing this court the jurisdiction to grant injunctions whenever this court considers it just or convenient to do so. I agree that this is part of the general equitable jurisdiction of this court. 145.So there is no debate about the jurisdiction. The question is whether this court should exercise the discretion to make such an order as a remedy in all the circumstances of the present case. 146.Mr Lam refers to a Malaysian Court of Appeal decision in Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629. There, the Court of Appeal quashed the apology order granted against an unwilling defendant by the trial judge. Harmindar Singh JCA had this to say (at §69),
147.The Court of Appeal was of the opinion that the apology ordered despite the defendant’s unwillingness to do so was really useless and an order for apology ought to have been considered only in the case where the offending party was willing (at §71). 148.In TV3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 435, referred to in Credit Guarantee Corp Malaysia Bhd, the New Zealand Court of Appeal had to consider whether the court had the necessary jurisdiction to order the defendant TV company to broadcast corrective advertising. McKay J affirmed the first instance judge’s conclusion and said this (at p.449 line 36),
149.It can be seen that in both the Malaysian Court of Appeal and the New Zealand Court of Appeal found similar orders to be justified only in exceptional circumstances. 150.For completeness, I wish to add that I find Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888 to be of assistance. There, the Court of Final Appeal dealt with an appeal which concerned the scope of section 72(4)(b) of the Disability Discrimination Ordinance, Cap. 487 (“the DDO”) and it provides:
151.The Court of Appeal (Mayo VP, Keith JA and Ribeiro JA, (as he then was)) concluded that an unwilling apology was not within the scope of section 72(4)(b) of the DDO. The Court of Appeal further considered that no useful purpose would be achieved by requiring an unwilling defendant to apologise and it would be a meaningless and empty gesture. 152.Chief Justice Li (with whom Bokhary PJ, Chan PJ, Nazareth NPJ and Sir Anthony Mason NPJ agreed) (at §52) concluded that an order for an apology could be made against an unwilling defendant under section 72(4)(b) of the DDO. Chief Justice Li, however, observed that “with an unwilling defendant, it may well be that an apology, which will be an insincere one, would usually not be a reasonable act for him to perform.” And the Chief Justice went on to point out that “there might be rare cases where the court could be satisfied that an apology, albeit insincere, would be a reasonable act for the defendant to perform.” 153.Chief Justice Li (at §53) further observed that although the court has the power to make such an order against an unwilling defendant, the court, even in the rare cases where the circumstances are exceptional, has to proceed with great circumspection. 154.Here, Mr Liang is not willing to make an apology. Mr Chow has advanced no special grounds to justify an order for an apology. There are exceptional circumstances in the present case. Mr Lam does not make any submission on why Mr Chow requires such an apology to be made reluctantly from Mr Liang in addition to the awards of damages and injunctions. 155.In the circumstances, I am not inclined to exercise my discretion to grant Mr Chow an order for an apology. Conclusion and order 156.For the reasons given, I conclude that the 3rd Words bore defamatory imputations referrable to Mr Chow and Mr Liang is unable to establish the defence of justification and fair comment. Judgment should be entered against Mr Liang. 157.Mr Chow should be entitled to the following reliefs:
158.It remains for me to thank both Mr Lam and Mr Lo for their able submissions and helpful assistance in this matter.
Mr. Kenneth Lam, instructed by LCP, for the plaintiff Mr. Benny Lo, instructed by Au Yeung, Cheng, Ho & Tin, for the defendant Annexure I (The 1st Words)
Annexure II (The 2nd Words)
[1] §§1A to S and 9B(1) to (16) of the Re-Re-Amended Defence. [2] 偉邦物業管理公司 對 羅添興 (unreported, DCCJ 4722/2011, 3.12.2012), Li Kam Fung v Fong Tsz Kit [2018] HKDC 1252, Wong Ching Yee v Wai Shuk Yin [2019] HKDC 1104 | |||||||||||||
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