Ho Frederick Kwok Lung and Another v. Lam Ping

DCCJ 701/2020

[2021] HKDC 1431

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 701 OF 2020

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JUDGMENT

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Introduction

1.This is an application for summary judgment against the defendant for tortious acts of intimidation and harassment, in which the plaintiffs seeks injunctive and monetary relief[1].

2.The 1^st plaintiff (P1) was a shareholder and director of Ashton Hawks (HK) Ltd (“the Company”), an overseas property consultant agency.[2]

3.The 2^nd plaintiff (P2) is the wife of P1 and was employed by Cathay Pacific Airways.  She was also a director and shareholder of a franchise bubble tea shop named Bubble Tea Work (丸茶手作) (“Bubble Tea Work”).

4.In July 2018, the defendant (D) was employed by the Company as an administrative executive[3] and she left in around September 2019. 

Ps’ Case

5.At around March 2019, P1 and D started an extra-matrimonial affair until 9 October 2019, when P1 broke up with D.  Then after, D had continuously and repeatedly intimidated and harassed both Ps, which eventually led to P1’s resignation from the Company on 27 October 2019.

6.The detailed circumstances surrounding D’s tortious acts of harassment and intimidation are set out in P1’s 1^st Affirmation (“P1 1^st  Affm”), P2’s Affirmation (“P2’s Affm”) and the Affirmation of Lai Yuen Fong (“Kingston’s Affm”) in support of the O.14 summons.  The complaints that happened in the year 2019 are summarised as follows:-

(i)     The “9 October Incident”[4] - D demanded that P1 must either resign from the Company in order not to see Hailey (P1’s colleague) or reveal his extra-matrimonial affair to P2.  When P1 refused, D continuously and persistently followed P1.  P1 and D then went to the police station to resolve their differences.  D continued to follow P1 after the police station visit.  She only agreed to stop following P1 after he gave D a HK$200,000 cheque for a clean break.[5]

(ii)     “Persistent Phone Calls and Insulting Messages”[6] –D used a new mobile phone number 65492XX4 and other unidentified phone numbers to make persistent phone calls and send numerous text messages to both Ps, P1’s brother, the Company and Bubble Tea Work.[7]  The contents of the messages from D to P2 and P1’s brother were clearly threatening, abusive and derogatory, causing anxiety and emotional distress to the recipients.[8]

(iii)     The “Vandalization of the Company Signage”[9] – Writing insulting and/or derogatory remarks towards P1 in the vicinity of the Company’s office on 21 October 2019, 22 October 2019 and 25 October 2019.  On 21 October Henry Wong, a colleague of P1, saw D wandering outside the office at around 6:49 pm.  Shortly afterwards, several insulting statements against P1 were written on the Company’s signboards outside the main entrance of the office at 15/F, World-Wide House.  A similar incident reoccurred on 22 October.  The incidents were captured by the CCTV of a neighbouring law firm.[10] On 25 October, D was clearly seen pressing the bell of the Office repeatedly at around 1:42 pm D’s face was captured by the newly installed CCTV at the office.[11] In the evening of 25 October, red paint was found at the Company’s signage near the lift lobby of 15/F.  D was also seen taking the lift of World Wide House at around 6:43 pm.[12]

(iv)     “Harassment via Instagram”[13] – D published and/or caused to publish private messages of conversations between P1 and D, photographs, insulting, abusive and derogatory remarks against Ps, the Company, colleagues of P1 namely Hailey and Ivan on the noccix IG account[14] and the pkshit IG account[15], both being public Instagram accounts.[16] D deliberately followed the business and private Instagram accounts related to the Company, Cathay Pacific and Bubble Tea Work to widely circulate materials on the two Instagram accounts[17].  Ps’ case is that D must have been the person who caused the materials to be published on the two Instagram accounts as most materials uploaded could only have been in D’s exclusive possession.[18]

(v)     The “27 October Incident”[19] – D appeared at the Company’s event at the JW Marriot Hotel and asked to see P1.  P1, Kingston and Terence then entered into a negotiation with D, who insisted that the only condition for her to take down the Instagram posts on the pkshit IG account and cease all her acts of harassment towards Ps [20] was for P1 to resign from the Company.  P1 was then forced to resign from the Company with immediate effect.[21] Kingston then sent out an email notifying all colleagues of the Company and the Company’s related group companies regarding P1’s resignation.[22] Kingston then drafted a statement of apology to the Company in order for D to withdraw all allegations against the Company.  D then posted this statement of apology and deleted all other posts on the pkshit IG account.[23]

7.In support of Ps’ case on the above allegations, Ps exhibited mobile phone call logs, WhatsApp messages record, and screenshots from the relevant Instagram accounts.

8.As a result of P1’s resignation, he lost a monthly salary of HK$50,000 as a director of the Company.  Further, D’s wrongful acts had caused severe humiliation, anxiety, mental disturbance and emotional distress to Ps, especially to P2.  P2 had to explain to her colleagues at Cathay Pacific who were made aware of the Instagram posts and she had to issue an apology to all franchises of Bubble Tea Work.  She suffered from stress, emotional swings and insomnia.  She eventually had to consult a psychiatrist for her psychiatric symptoms.[24]

9.In this application, Ps do not seek to rely on the pleaded case of private nuisance but only seek to proceed with the claim of harassment and intimidation for the relief of permanent injunction and damages.[25]

D’s case

10.D does not admit to having made the repeated phone calls or publishing the insulting messages.[26] She denies vandalizing the Company’s Signage or the harassment via Instagram.[27]  She nevertheless admits that P1 did report the incidents to the police.[28]

11.In relation to 9 October Incident D admitted that she and P1 met up in the morning in Central.[29] D asked P1 to end his relationship with Hailey.  P1 agreed and said that he would resign from the Company.  When P1 headed towards his office, D told Pl that she would follow him to his office to make sure that he resigned from the Company.[30] Pl then changed his mind and suggested that they should go to a police station nearby to solve the problem.[31]  After visiting the police station, D followed P1 to the footbridge near Shun Tak Centre[32] where D told Pl that in order to end their relationship, Pl should either end his intimate relationship with Hailey or confess his extra-matrimonial affair with Hailey and D to P2.  P1 refused[33] but then drew a cheque of HK$200,000 in D’s favour.  D then took the cheque.[34]

12.Whilst D denies Ps’ case regarding the 27 October Incident[35], she admits that she met P1, Kingston and Terence in a function room at the JW Marriot Hotel.[36]

Principles on the Tort of Intimidation

13.In X and Y v Z [2020] HKCFI 826, Coleman J summarised the principles of the tort of intimidation at §§24-27:-

“24. The tort of intimidation was also considered in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at §43. The three main elements are that there is (1) an unlawful threat; (2) the intention to cause harm to the claimant with that threat; and (3) damage to the claimant.

25. But the essence of the tort is coercion: see, Clerk & Linsell on Torts (22^nd Ed) at §24-61. The threat, for the purposes of the tort of intimidation, is something which puts pressure on the person to whom it is addressed to take a particular course of action. The threat must be of the “or else” kind. It must be capable of being effective to produce the desired result, and be more than idle abuse, something to be taken seriously. A warning which does not seek to have the recipient of the warning change his plans is not a threat.

26. The concept is not limited to express threats. There may be acts from which a threat can be implied. It has also been recognised that there may be some overlap between the tort of intimidation and the tort of harassment. But a threat is lawful as long as a defendant only threatens to do what he has a legal right to do. The logic is that it would be absurd to make a person liable for threatening to do something, but not for actually doing it. Much may, therefore, turn on what is meant by “unlawful” or “what you have no legal right to do” in this context. A threat to commit a tort is a threat to use unlawful means.

27. A claimant is entitled to quia timet relief to stop threats being made against him, where intimidation is demonstrated.  In seeking such an injunction, the applicant must rely on past acts to show likely future conduct.  The previous acts must be of the particular nature of conduct which is sought to be restrained.”

14.In Lin Man Yuan v Kin Ming Holdings International Limited & Another HCA 216/2008, unreported, 3 June 2015, Lok J described the tort of intimidation as follow at §224:-

“On the other hand, intimidation is sometimes regarded as an economic tort. As a kind of economic tort, yielding to the demand is an essential ingredient of the tort. However, the case of Rookes v Barnard shows that the tort of intimidation is not limited to interference with business. If the intimidation has caused injury to a person including deterioration in health, that particular person can sue for damages for intimidation. It is more akin to a tort of intentional infliction of injury on a person.”

Principles on the Tort of Harassment

15.The tort of harassment has been recognised and applied in Hong Kong since the decision in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 (“Lau Tat Wing”) per Anthony Chan J.  In X and Y v Z (supra), Coleman J also summarised the principles of the tort of harassment at §§13-16:-

“13. Unlike, for example, in the United Kingdom, there is no statutory provision in Hong Kong creating the tort of harassment. But even in the UK legislation, there is no definition of harassment. Rather, harassment is an ordinary English word with a well understood meaning. In Hong Kong, the tort of harassment was summarised in Secretary for Justice v Persons Unlawfully and Wilfully Conducting etc. [2019] 5 HKLRD 500 at §22, drawing on Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at §§62-69.

14. The tort of harassment relates ordinarily to a course of conduct by a person by words or action directly or through third parties, sufficiently repetitive in nature that any person ought reasonably to know would cause worry, emotional distress or annoyance to another person. The requirement that there be a course of conduct identifies that the conduct must have occurred on at least two occasions in relation to the person allegedly harassed. But whatever is the number of occasions must, in the circumstances, be sufficiently repetitive in nature to trigger the tort. The conduct must be overt, that is deliberate.

15. The applicable test as to whether or not there has been harassment is an objective test, applied to the particular circumstances of the case. Context is important. The court's assessment includes whether the conduct has crossed the boundary from the regrettable to the unacceptable, or from the unattractive to the oppressive. The mental element required is being reckless as to whether the victim would suffer injury from the conduct.

16. Damage to the victim is necessary to constitute the complete tort. Harassment can result in a range of reactions, extending from physical injury at one end of the scale to mere humiliation at the other. The correct balance has to be struck in the particular circumstances.  Anxiety is capable of constituting damage, and financial loss would also be recoverable.”

16.Mr. Cheng, counsel for the defendant, accepts that the tort of harassment does exist under the Hong Kong law but submitted that the law on harassment is still developing and it is inappropriate to grant summary judgment under O 14 when the tests on the individual elements are not settled.  Mr. Cheng relies on Cheung Ping Sum v Wong Chi Hang [2018] HKCFI 70 by DHCJ Keith Yeung S C (as he then was), at §33:-

“The tort of harassment is developing.  There has not been a lot of authorities which discuss its elements, let alone the tests that should be adopted when considering whether any individual element has been made out.  Concentrating upon the element of “repetitiveness”, I notice that the parameter suggested by Anthony Chan J [in Lau Tat Wai] (adopting the observation made by Lee JC in the Singaporean case of Malcomson v Mehta [2001] 4 SLR 454) is “sufficiently repetitive”.  How repetitive should be regarded as “sufficient” for the purpose of this element?  The question is fact-sensitive.  There can be no clear cut answer.  It will not be straightforward to answer after a trial, not to mention at this stage in the context of an application for striking out.”

17.Mr. Cheng further submitted that apart from the issue as to whether the acts are sufficiently repetitive, there is also a question of “whether (and if so when) the conduct has crossed the boundary from the regrettable to the unacceptable, or from the unattractive to the oppressive” X and Y v Z (supra) at §15).  Whether that boundary has been crossed may depend on the context, including the social or working context, in which the conduct occurs.  Mr. Cheng submitted that this clearly is a fact-sensitive issue.

Doxing was made an offence

18.On the subject of the development of law of harassment in Hong Kong, it is noteworthy that recently doxing has been made an offence.

19.Under the new section 64(3C) of Personal Data (Privacy) (Amendment) Ordinance 2021 (“the Amendment Ordinance”) effective on 8 October 2021, a person commits an offence and is liable to a maximum penalty of imprisonment for 5 years if the person:1) discloses any personal data of a data subject without the relevant consent of the data subject; 2) has an intent to or is being reckless as to whether any specified harm would be, or would likely be, caused to the data subject or any family member of the data subject; and 3) the disclosure causes any specified harm to the data subject or any family member of the data subject.

20.Pursuant to the new section 64(6) of the Amendment Ordinance, “specified harm” includes, inter alia, harassment, molestation, pestering, threat or intimidation to the person and psychological harm to the person.

The Analysis

The circumstances surrounding the uploading of messages and screenshots

21.The undisputed soured relationship between P1 and D provides a cause and motive for D to conduct the acts as alleged by Ps.

22.The timing of the distribution of the messages was soon after P1 and D had just broken up and the repeated accusations that P1 had an intimate and/or love relationship with Hailey[37] is consistent with Ps’ case that D was the person spreading the messages and screenshots.

The nature and content of the published materials

23.The nature and content of the text messages, photographs and screenshots concerned show that the publisher was clearly targeting P1 and intended to cause major social embarrassment to both P1 and P2. The maker tagged the business associates of Ps companies, friends and relatives. The manner of distribution and circulation of the concerned messages was aimed to belittle Ps and to provide maximum damage. The text messages were vulgar, distasteful and too explicit to be recited in this judgment. The way of expression of these text messages, photographs and screenshots shows that the maker has a serious grudge against Ps.

24.The screenshots of photographs show very intimate photographs of P1 and D.  Although in some of the photographs, the woman’s face was covered, D does not deny being the person in the photographs.  Some photographs were taken inside a hotel room and are private intimate photographs, including photographs of P1 in bed and in underclothing which only a person with a very close relationship with P1 could have taken or had access.  The undisputed extra marital relationship between D and P1 is consistent with such a close relationship.

25.A majority of the photographs and screenshot of messages published and uploaded on to the noccix IG account[38] and the pkshit IG account[39] are photographs taken during P1’s trips with D.[40] Further, the screenshot contains previous WhatsApp conversations between P1 and D, which could only have been in P1 and D’s exclusive possession.[41]

26.One of the published photographs shows a complaint form filed by D to the Labour Department dated 10 October 2019, with D’s name and ID card number redacted.[42] In the complaint form, D alleged that P1 has sexually harassed her during her “working period” at the Company.  A copy of the unedited complaint form was also sent from D to Kingston via WhatsApp on 10^th October 2019.[43]

27.Kingston affirms that D agreed to post a statement of apology to the company on the pkShit IG account drafted by Kingston himself.  The statement was then immediately uploaded by D onto the pkShit IG and subsequently all posts against the Company was taken down as agreed by D.  This shows that D was most likely to be the account holder and had control over the pkShit IG account and was the person who uploaded harmful messages and screenshots against P1 and the Company.

The admission of being the holder of mobile phone numbered 6014 4XXX

28.Despite denying that she made the 75 calls from a phone with no caller ID, D admits to being the holder of the mobile phone number 60144XXX.[44] Since the call logs shows that this was the phone number that was used in some of the tortuous acts complained of, the irresistible inference is that D was also the person who made repeated calls and sending numerous messages to Ps, P1’s brother, P1’s Office and P2’s business telephone number of Bubble Tea Work.

29.The tortuous acts included 1) Sending various WhatsApp messages to P2 to reveal her relationship with P1, as well as claiming that P1 had an affair with Hailey[45]; 2) making 8 phone calls to the mobile number of P1’s brother[46]; 3) making multiple calls to the business telephone number of Bubble Tea Work[47]; 4) sending over 60 messages with images, audio records, video clips and screenshots of previous WhatsApp conversations between D and P1 to the business telephone number of Bubble Tea Work; 5) sending a series of abusive and insulting SMS messages to P2 and sending over 60 insulting and private images, audio records, video clips and screenshots of previous WhatsApp conversations between P1 and D’ to P1’s brother via WhatsApp.[48]

The manner of publishing the materials

30.The captions and/or statements on the posts are written in D’s first person perspective.  D’s identity was erased from the Instagram posts.  D’s face was always covered, her name and private information such as ID card number were redacted from the posts.  On the one hand, the maker clearly wished to expose P1 but on the other hand tried hard to protect the identity of D.

The CCTV

31.Apart from denying having vandalized the Company’s Signage, D did not rebut P1’s evidence that she was seen by his colleague at the office on 21 October 2019.  D did not put forward any explanation for her presence at World-World House on 25 October 2019 despite P1 produced images of her being captured on CCTVs outside P1’s office and inside the lift of the office building.

Defective pleadings?

32.Mr. Cheng submits that the statement of claim is defective as it has not pleaded threat, how such threat was unlawful, and how there was any coercion on Ps for the claim for intimidation. 

33.Ps have pleaded that D followed P1 around Central and had threatened to go to P1’s office.  The act of uploading and posting private messages and photographs onto the social media without P1’s consent has been pleaded and D only agreed to take them down after P1 resigned from the company.  These are acts of nuisance, tortious and threats and I am satisfied that the pleaded case of intimidation and harassment are in order.

Findings

34.Having considered D’s affirmation, I accept Ps’ counsel, Ms. Kung’s submission that D has not put forward any genuine response to the evidence adduced in P1, P2 and Kingston’s affirmations in support of the Summons.  I am satisfied that the undisputed facts and the objective evidence before me clearly substantiates a case of D disclosing P1’s personal data on the internet and social media without P1’s consent.  I am satisfied that the evidence visibly shows that D was the person who had caused the uploading and distribution of the text messages, photographs and screenshots on Instagram and had made the disturbing phone calls and sent messages, screenshots to Ps, P’s brother, Ps colleague and company.

35.Having taken into account the contemporaneous documents and the factual background of this case, I conclude that D’s case is inherently improbable and not believable.

36.Any reasonable court having the benefit of looking into the background of this case, considering the uploaded messages, photographs and screenshots would have little difficulty in finding that the conduct of D was deliberate, unlawful, threatening and sufficiently repetitive which must have caused great embarrassment, emotional distress and harm to Ps.  The tortuous actions were clearly unacceptable and oppressive and by the most liberal standard satisfy the tests as summarised in X and Y v Z (Supra) on intimidation and harassment.

37.As D had not demonstrated any fair or reasonable prospect of a real or bona fide defence in relation to factual disputes before this court, there is no good reason for this matter to proceed to trial.  Accordingly, I grant summary judgement in favour of Ps.

Relief

Injunction

38.Whilst the tortuous act has stopped since the commencement of these proceedings, I take into account D’s past conduct showing her obsession, persistence and extreme hatred towards P1 plus the fact that D has expressed her desire to make it her life mission to continue to make life difficult for Ps.  For instance, D has sent messages to Ps stating, “我吾會大方算數”, “我呢世都吾會放過佢”, “我呢世都吾會放過你賤人”[49], “你哋全家都會有報應”[50]. I have grave reservations as to whether D has completely stopped her tortious conduct or have merely given it a pause for the sake of this action and have it revived after time out.

39.Given the fact that D has gone so far as to make an attempt to ruin P1’s career and cause inconvenience and distress to innocent third parties, in particular to P2, I am satisfied that unless being restrained, there is a real prospect of D refreshing such behaviour which damages will no longer be a sufficient remedy.  A prohibitory injunction in the circumstances is an appropriate remedy to prevent the continuation or repetition of the tortious acts and I order a permanent injunction against D.

Specific Damages

40.Ps claims specific damages as follows:-

(1)	P1’s loss	HK$200,000
(2)	P1’s loss of salaries at HK$50,000 per month from 28 October 2019 to 31 March 2020 due to the D’s intimidation and breach of the 27 October Agreement	HK$250,000
(3)	P2’s medical consultation and drug prescription from Psychiatrist Dr Gabriel Hung on 7 and 18 February 2020	HK$5,243
(4)	P2’s participation in a 9-month medication program as advised by Dr Gabriel Hung	HK$40,000 (estimated)
(5)	P2’s legal advice from Messrs. Withers on 17 October 2019	HK$2,900
(6)	P2’s legal advice from Messrs. Chaine Chow and Barbara Hung on 18 October 2019	HK$8,400
(7)	The Plaintiff’s retention of Messrs. Hon & Co for drafting of the Deed of Settlement, issuing of a cease-and-decease letter and general advice between 28 October 2019 to 15 January 2020	HK$29,200
(8)	Damages for harassment towards P1, including aggravated damages	HK$100,000
(9)	Damages for harassment towards P2, including aggravated damages; and	HK$200,000
(10)	Exemplary damages	HK$100,000
	Total:	HK$935,743 (estimated)

41.Ps further claims for $100,000 and $200,000 as general and aggravated damages for P1 and P2 respectively but has abandoned the claim for $40,000 under (4).

42.I accept Mr. Cheng’s submission that the court should hear full argument on whether the HK$200,000 cheque was paid by P1 to D as part of an agreement between P1 and D “to cease contacting each other”[51] or for the purposes of relieving D’s financial hardship and to return money which P1 owed to D[52].  There may also be issues as to: 1) whether P1 has reasonably mitigated his loss of remuneration after resigning from the Company; 2) The reasonableness for P2 to seek legal advice from two firms of solicitors; 3) whether the legal costs are a matter for taxation and 4) the appropriate award for exemplary damages, if any, etc. I would accordingly make an order for specific damages to be assessed.

Orders

43.I make the following Orders:-

1) Summary Judgment be entered for the 1^st and 2^nd plaintiffs against the defendant.

2) A permanent injunction that the defendant is restrained whether by herself, her servants or agents or otherwise howsoever from carrying out the following acts or any of them, namely:-

(a) Causing or authorising harassment, nuisance or intimidation to the 1^st and 2^nd plaintiffs, the 1^st plaintiff’s brother, the Company, Bubble Tea Work and Mr. Kingston Lai, Mr. Terence Chan, Mr. Ivan Yam, Ms. Hailey Lui and the business associates of the 1^st Plaintiff (collectively “the associated persons”);

(b) Save and except for the purpose of the assessment of damages of this action through her legal representatives, approaching or contacting the plaintiffs, the Company, Bubble Tea Work or the associated persons, whether directly or indirectly, whether by telephone or e-mail or social media or otherwise;

(c) Causing or authorising the printing, producing, circulating, distributing, sending, e-mailing, transmitting or otherwise publishing of any materials containing derogatory remarks of the plaintiffs, the Company, Bubble Tea Work and the associated persons; and

(d) Entering or remaining at or coming within a distance of 30 metres from:-

(i) The same floor level of the office address of the Company at Unit 1501C, 15/F, World-Wide House, 19 Des Voeux Road Central, Hong Kong; and

(ii) The address of Bubble Tea Work at Shop 2009, 2/F, Kwai Chung Plaza, 7 Kwai Foo Road, Kwai Fong.

3) Specific damages are to be assessed.

4) Costs of this application, including all reserved costs, if any, be to the 1^st and 2^nd plaintiffs against the defendant with certificate for counsel to be taxed if not agreed.

Ms. Jolie Kung, instructed by Hon & Co, for the 1^st and 2^nd plaintiffs

Mr. Henry Cheng, instructed by Henry Yu & Associates, for the defendant