Tsui Wai Yip v. Lam Mo Chiu
Read the full judgment text of DCCJ 4878/2017 on BabelCite. This District Court judgment was delivered on 6 December 2021.
1. This is the trial of a defamation case.
Cited by 1 case · Cites 20 cases
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DCCJ 4878/2017 [2021] HKDC 1520 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4878 OF 2017 --------------------
-------------------- Before: Deputy District Judge Timon Shum in Court Dates of Hearing: 27-31 May, 3-5 June and 11 July 2019 Date of Judgment: 6 December 2021 --------------------- JUDGMENT --------------------- Introduction 1.This is the trial of a defamation case. 2.The plaintiff Tsui Wai Yip (“Tsui”) is the owner of No 4, Block B, 12/F, Tung Lo Court, Nos 136-154 Tai Po Road, Nos 52-56 Shek Kip Mei Street, Kowloon (“Tung Lo Court”). 3.The defendant Lam Mo Chiu (“Lam”) is the owner of No 4, Block A, 10/F and No 11, Block B, 2/F of Tung Lo Court. 4.The defendant was also the chairman of the 21st, 29th, 30th and 31st sessions of the management committee of The Incorporated Owners of Tung Lo Court (“the IO”). Alleged Defamatory Statements 5.The statements, which are the subject matters of these proceedings, consist of 2 statements and are identified as the First Statements, which were contained in paragraph 1.6 of the minutes of the annual general meeting of the IO held on 24 September 2013 (“the 2013 AGM Minutes”), and the Second Statements, which were contained in paragraph 1.12 of the minutes of the annual general meeting of the IO held on 19 December 2015 (“the 2015 AGM Minutes”). Both the 2013 AGM Minutes and the 2015 AGM Minutes bear Lam’s signatures. The First Statements 6.Paragraph 1.6 of the 2013 AGM Minutes is set out with the First Statements being underlined (See: 20 of TB):-
The Second Statements 7.Paragraph 1.12 of the 2015 AGM Minutes is set out with the Second Statements being underlined (See: 31 of TB):-
The issues 8.The issues that I need to address are as follows:-
The Witnesses 9.At trial the following witnesses testified for the plaintiff:-
10.On the defendant’s side, the following witnesses testified:-
11.All the witnesses confirmed and adopted their respective witness statements in court. At this moment, I do not find it useful to narrate each and every witness’s testimony in full due to their length and complexity. As examples, Tsui’s witness statement and supplemental witness statement consist of 19 pages and 14 pages respectively excluding the exhibits while Lam’s witness statement and supplemental witness statement consist of 11 pages and 18 pages respectively excluding the exhibits. 12.Instead, I will first outline the history of the disputes involving Tsui, Lam and the IO which would help one to understand the background and the issues in front of the court. Such history and events can be gleaned from documents which should not be in dispute. References will be made to the witnesses’ testimonies if and when necessary. History of disputes 13.According to Tsui, he became owner of No 4, Block B, 12/F of Tung Lo Court in 1980 (“Tsui’s Property”). He started to reside at his Property in or about 2006 after the birth of his youngest daughter. Around that time, Tsui retired from his business and stayed home to look after the daughter upon the request of his wife. LDBM 293/2010 14.On about 23 September 2009, Wong Lo, who is Tsui’s witness in this case, approached Tsui. Both of them were of the view that the then 29th session of the management committee (the “MC”) of the IO was operating in the dark. So they intended to call an owners’ meeting to pass a resolution to replace the existing members of the MC. 15.On 22 October 2010, they gathered not less than 5% of shares held by the owners of Tung Lo Court and requested Lam, the chairman of the MC, to convene a general meeting of the IO to pass the following proposed resolutions (See: 222 of TB):-
16.Tsui was appointed by the requesting owners as their contact person. But the MC apparently did not accede to the request immediately. As a result, Tsui applied to the Lands Tribunal on 6 November 2010 in LDBM 293/2010 seeking an order to convene an owners’ meeting. (See: 226 of TB) 17.On 2 February 2011, Deputy District Judge J Wong ordered the IO to convene a general meeting on or before 16 February 2011 and such meeting shall be held on or before 26 March 2011. (See: 227 of TB) 18.A general meeting was held pursuant to the order of Deputy District Judge J Wong. But Lam, as chairman of the MC, used a single proxy which allegedly represented 240 shares held by the owners of Tung Lo Court. Tsui was not satisfied with this and applied to the Lands Tribunal on 1 April 2011 for a declaration of voiding it. LDBM 332/2010 19.On 23 November 2010, the IO issued an open letter to all the owners. (See: 229 of TB) In the 3rd paragraph of the letter, it was stated that there was a resolution passed at a meeting that the car parks in the basement of Tung Lo Court would be closed for 2 months during the renovation period so as to avoid damage to the cars parked thereat. The owners of the cars parked thereat were required to move their cars out of the car parks. 20.According to Tsui, he had not heard of any such resolution being passed. He made a written request to the IO for production of the minutes of the general meeting which contained such resolution. But his request was not acceded to. 21.On 16 December 2010, Tsui made an application to the Lands Tribunal in LDBM 332/2010 for an order against the IO for production of the aforesaid minutes. LDBM 10/2011 22.On 8 March 2010, the IO registered a memorandum of charge against Tsui for outstanding repair fees in the total sum of HK$1,956. (See: 239-240 of TB) 23.On 11 January 2011, Tsui made an application to the Lands Tribunal in LDBM 10/2011 to discharge the memorandum of charge. 24.On 6 September 2011, His Honour Judge Michael Wong ordered that the memorandum of charge be vacated and the IO to pay Tsui’s costs of application. (See: 242-243 of TB) LDBM 87/2011 25.LDBM 87/2011 is a legal action brought by the IO on 1 April 2011 against 34 owners of Tung Lo Court for failing to make contribution of renovation fees. Tsui was the 33rd respondent in these proceedings and he represented 21 co-respondents. 26.On 30 May 2010, the general meeting of the owners passed a resolution approving the carrying out of renovation works. (See: 375-376 of TB) Subsequently, a contract for renovation works was signed between the IO and the contractor Tat Hing Construction Co Ltd on 15 July 2010. (See: 378-401 of TB) The contract sum for the renovations works was around HK$19,687,850.20 which included a sum for reserve funds at HK$1,287,990.20. (See: 404-405 of TB) 27.Demand notices for contributions towards the renovation works were issued by the IO’s solicitors Messrs SK Lam, Alfred Chan & Co to the owners on 16 August 2010, 4 November 2010 and 19 November 2010. However, some of the owners failed to comply with the demand notices. 28.The IO started LDBM 87/2011 on 1 April 2011 to claim against the 34 defaulting owners for their contributions. The trial of the matter took 3 days before Deputy District Judge Roy Yu from 29 February 2012 to 2 March 2012. On 26 April 2012, the learned Deputy District Judge handed down judgment ordering the defaulting owners to pay their contributions. Tsui, as the 33rd respondent was required to pay his contribution to the IO in the sum of HK$48,793. In the proceedings, Tsui also acted as representative for other 21 respondents. Tsui and 16 co-respondents were ordered to pay 70% of the costs of the IO. DCMP 1381/2011, HCMP 2038/2013, HCMP 2067/2013 & CACV 52/2014 29.DCMP 1381/2011 is a legal action brought by the IO against Leung May Chun Alison Aliance (梁美春) who was an owner of car park spaces nos 7, 15, 24, 25, 32 and 40 in Tung Lo Court. 30.As can be seen from the judgment of Deputy District Judge R Lai dated 29 May 2013, the IO sought to enforce 18 memoranda of charge against Leung by way of an order for sale. The 18 memoranda of charge were based on outstanding management fees, management contributions and repair contributions. 31.The IO’s claim against Leung was settled just before the trial. The focus of the trial before Deputy District Judge R Lai was Leung’s counterclaim against the IO for damage caused to her due to IO’s depriving her of access to the car parks. 32.After a 4-day trial from 18 to 21 February 2013, Deputy District Judge R Lai handed down judgment on 29 May 2013 and awarded HK$10 nominal damages to Leung for the IO’s wrongful closure of the basement where Leung’s car parks were located and HK$10 nominal damages for wrongful refusal to issue smart cards to Leung. 33.Tsui acted as Leung’s witness in her case. Tsui is not an owner of any car park himself. But as can be seen from paragraph 54 of the judgment, the learned Deputy District Judge commented that Tsui “took great interest in the management of the Basement”. He testified that it was not necessary to close the basement to effect the repair works ordered by the Building Authority. 34.Both the IO and Leung sought leave from the Court of Appeal to appeal against the judgment of Deputy District Judge R Lai in HCMP 2038/2013 and HCMP 2067/2013. Leung’s application for leave to appeal was refused. But the Court of Appeal granted the IO’s application for leave to appeal on 6 March 2014. 35.The substantive appeal of the IO was heard on 9 December 2014 in CACV 52/2014. On 17 December 2014, the Court of Appeal allowed the IO’s appeal and ordered the followings:-
DCMP 2465/2011 & HCMP 523/2013 36.DCMP 2465/2011 is a set of proceedings started by the IO on 3 October 2011 against Sit Sau Ming (薛秀明) for enforcement of 4 memoranda of charge by way of an order for sale. 37.Sit was the owner of car park spaces nos 17, 36, 59 and 60 of Tung Lo Court. According to the originating summons, Sit was owing management fees and repair costs in respect of his car park spaces. (See: 551-581 of TB) 38.The case was subsequently transferred to the Court of First Instance with a new case number HCMP 523/2013. The IO and Sit reached settlement on 13 September 2017. (See: 890-891 of TB) LDBM 134/2012 39.LDBM 134/2012 is a case brought by the IO on about 15 May 2012 against 李健秀(“Lee”), who was the owner of No 8, Block B, 1/F of Tung Lo Court, for an injunction order to remove illegal structures erected by Lee on the common parts. 40.The trial of the matter took place before His Honour Judge Ko on 2, 3, 4, 5 and 27 September 2013. 41.On 9 October 2014, the learned judge handed down judgment allowing the IO’s claim and dismissing Lee’s counterclaim which was based on about 100 complaints. The learned judge ordered Lee to pay the costs of the IO on an indemnity basis. 42.Tsui was called by Lee as her expert witness in the case. But the learned judge rejected his evidence and made the following comments in paragraphs 20 and 151 of the judgment:-
DCCJ 3333/2011, HCMP 3089/2014 & CACV 27/2015 43.DCCJ 3333/2011 is a defamation claim brought by the IO against Tsui in relation to 4 open letters published by Tsui respectively dated 11 March 2011 (“D1”), 24 March 2011 (“D2”), 28 March 2011 (D 3”) and 27 April 2011 (“D4”). (See: 528, 529, 530 & 549 of TB) 44.In the same action, Tsui counterclaimed for defamation against the IO in relation to 11 publications allegedly issued by the IO. These 11 publications were respectively referred to as P1-P11 in the judgment dated 4 August 2014. 45.The trial of the matter took 9 days before Deputy District Judge Mak on 25-28 February, 3-6 and 10 March 2014. On 4 August 2014, the learned Deputy District Judge handed down the judgment. It was held that the 4 Letters, ie D1-D4 referred to in the judgment, published by Tsui were defamatory of the IO. As to Tsui’s counterclaim, the learned Deputy District Judge found that the IO had a defence to P5, P6, P7, P9, P10 and P11 but allowed Tsui’s counterclaim based on P1, P2, P3, P4 and P8. Damages in the sum of HK$400,000 were awarded to the IO for the claim and damages in the sum of HK$450,000 were awarded to Tsui for the counterclaim. Tsui was ordered to pay 55% of the costs to the IO. 46.Tsui applied for leave to appeal against the judgment. Deputy District Judge Mak heard the application on 19 September 2014 and refused the application in his written decision on 10 November 2014. 47.Tsui then sought leave to appeal from the Court of Appeal in HCMP 3089/2014. The Court of Appeal granted the application on 27 January 2015. 48.The substantive appeal was heard on 26 June 2015 by the Court of Appeal in CACV 27/2015 and judgment was handed down on 3 August 2015. The Court of Appeal overturned part of Deputy District Judge Mak’s ruling by finding that D1, D2, and D4 were not directed at the plaintiff IO but were directed against the MC, the Chairman, the Secretary and the head of security. Due to the fact that the IO only succeeded in its claim against Tsui on the basis of D3, the damages awarded to the IO were reduced to HK$200,000. The Court of Appeal further ordered that there should be no order as to costs for the trial and that the IO should pay the costs of the appeal to Tsui. 49.Mr Justice Poon, who was giving the judgment of the Court of Appeal, said this at paragraph 5:-
This court’s observation 50.The IO had been involved in at least 8 sets of litigation since November 2010. Some of these cases became complicated with further hearings for application for leave to appeal and substantive appeal hearings. Tsui was involved in most of these cases either as a party or as a witness. Looking at the long history of disputes between Tsui and the IO, one would not be surprised that their relationship would not be harmonious. In fact, it is a rather confrontational relationship. This spirit of confrontation had also extended to the relationship between Tsui and Lam who was the Chairman of the 21st, 29th, 30th and 31st sessions of the MC of the IO. 51.While what happened in the previous cases might not be directly relevant to the present case, the history would provide the context for understanding and interpreting the First Statements and the Second Statements. Legal principles for interpreting statements 52.In Bawang International (Group) Holdings Ltd & Anor v Next Magazine Publishing Ltd, HCA 1109/2010, Mr Justice Lok summarised the legal principles derived from leading textbooks and cases for determining the meanings of allegedly defamatory statements:-
Meaning of the First Statements 53.To find out the natural and ordinary meaning of the First Statements, it is insufficient just to look at the First Statements alone. One should read the whole paragraph 1.6 of the 2013 AGM Minutes which contains the First Statements. Otherwise, there would be a risk of taking the First Statements out of their context. 54.In my view, paragraph 1.6 of the 2013 AGM Minutes should be broken into 4 parts as follows when one is reading because the 4 parts have different theme messages:-
55.Part 1 is a general statement meaning that some owners were owing management fees and renovation contributions and, as a result, the IO had to resort to legal actions for recovering the same, so as to protect other owners and ensure fairness. This is just a statement of fact and does not refer to any particular owners including Tsui. 56.Part 2 is a specific description about the owner of No 8, Block B, 1/F, who was allegedly occupying the public podium and erecting illegal structures. Despite verbal and written warnings, the said owner refused to remove the illegal structures. The IO had already started a legal action against him in the Lands Tribunal but the owner was counterclaiming. The case was still ongoing. 57.Even though it was not spelt out explicitly in Part 2, the case referred to was LDBM 134/2011 and the owner was 李健秀. Part 2 does not refer to Tsui at all and has nothing to do with him. 58.Part 3 is a general statement spelling out 4 sets of litigation in which the IO was involved and which were ongoing, namely DCMP 1381/2011 (梁美春as defendant), LDBM 134/2011 (李健秀as defendant), DCCJ 3333/2011 (Tsui as defendant) and DCMP 2465/2011 (薛秀明 as defendant). In Part 3, the case involving Tsui should be DCCJ 3333/2011 but it was mistakenly stated to be LDBM 3333/2011. But such a mistake would not cause any confusion because Tsui’s full name in Chinese was spelt out after the incorrect prefix and the case number. Any reasonable reader reading Part 3 would understand that Tsui was one of the 4 persons involving in litigation against the IO. 59.At the time of the First Statements were published at the 2013 AGM on 24 September 2013, the aforesaid 4 cases were still going on. I find Part 3 as a general statement reporting the progress of 4 litigations by Lam who was the Chairman of the MC of the IO. 60.Part 4 is a set of critical words used by Lam. Lam as Chairman of the MC of the IO emphasized that there were a small group of owners, who were frequently attempting to disturb the normal operations of Tung Lo Court, causing the IO to face many unnecessary litigations and causing great increases of the IO’s expenses. 61.While Part 4 might be regarded as strong and critical words, one should note that they do not refer to anyone specifically and there is no mention of Tsui. A reasonable reader reading Part 4 might wonder whether Lam’s criticism was directed to the owners owing management fees and renovation contributions referred to in Part 1 or the single owner in Part 2 or the 4 owners referred to in Part 3 or some other owners not described in Part 1, Part 2 or Part 3. Even if a reader assumes that Lam’s criticism was directed at the 4 owners at Part 3, he would still be wondering whether Lam was criticising all the 4 owners or just some of them or which one(s) of them. The plaintiff’s pleaded meanings of the First Statements 62.Tsui pleads that the First Statements in their natural and ordinary meaning contain 2 imputations that are defamatory:-
63.I do not accept the First Statements in their natural and ordinary meanings contain Imputation 1:-
64.Likewise, I do not accept the First Statements in their natural and ordinary meaning contain Imputation 2:-
The plaintiff’s fallacy in interpreting the First Statements 65.In my view, the reason why Tsui would opine that the First Statements contain the defamatory Imputation 1 and Imputation 2 is that he has read the First Statements out of context by ignoring other parts in paragraph 1.6 of the 2013 AGM Minutes. He just pays attention to Part 3 which mentioned DCCJ 3333/2011 and his name and then fits himself into the stronger and critical words in Part 1 and Part 4, thereby arriving at a conclusion that all the critical words were referring to him. 66.Tsui’s approach in interpreting the First Statements is wrong. An ordinary, reasonable and fair-minded reader would have read the whole paragraph 1.6 of the 2013 AGM Minutes carefully and would have found out that the paragraph contains 4 different parts with different theme messages. 67.Tsui’s approach is contrary to the established legal principles outlined by Mr Justice Lok in Bawang International (Group) Holdings Ltd & Anor v Next Magazine Publishing Ltd, HCA 1109/2010:-
The defences to the First Statements 68.As I do not accept that the First Statements when read in their proper context would be defamatory or carry the meanings of Imputation 1 and Imputation 2, strictly speaking there is no need for me to further consider the defences raised by Lam. But in deference to counsel for both sides, I will also express my views on the defences raised by Lam ie justification, fair comment and qualified privilege. Defence of justification in respect of the First Statements 69.Paragraphs 11.7 and 11.8 of Gatley on Libel and Slander (12th Edition) state the followings:-
Whether the First Statements can be justified 70.As said earlier, when reading the First Statements, the same should not be taken out of context. One should read the whole paragraph 1.6 of the 2013 AGM Minutes at the same time which contains the First Statements. 71.In my view, the whole paragraph 1.6 of the 2013 AGM Minutes can be justified. 72.Part 1 is a general statement meaning that some owners were owing management fees and renovation contributions and, as a result, the IO had to resort to legal actions for recovering the same, so as to protect other owners and ensure fairness. This part can be justified by the fact that the IO had to bring the following legal proceedings:-
73.Part 2 is a description about the owner of No 8, Block B, 1/F, Tung Lo Court who was allegedly occupying the public podium and erecting illegal structures. 74.As said earlier, Part 2 has nothing to do with Tsui. In any event, what was stated in Part 2 can be justified. It is just a description of the background of the case of LDBM 134/2012 where the IO claimed against李健秀. 75.Part 3 is a general statement spelling out 4 litigations in which the IO was involved and which were ongoing at the time of the 2013 AGM on 24 September 2013, namely DCMP 1381/2011 (梁美春as defendant), LDBM 134/2011 (李健秀as defendant), DCCJ 3333/2011 (Tsui as defendant) and DCMP 2465/2011 (薛秀明 as defendant). Except that there was a typographical error where DCCJ 3333/2011 was mistakenly stated as LDBM 3333/2011, there is nothing inaccurate in Part 3. 76.In Part 4, Lam as Chairman of the MC of the IO emphasized that there were a small group of owners, who were frequently attempting to disturb the normal operations of Tung Lo Court, causing the IO to face many unnecessary litigations and causing great increases of the IO’s expenses. 77.Part 4 can be justified by the following facts:-
Defence of fair comment in respect of the First Statements 78.Paragraphs 12.1 and 12.2 of Gatley on Libel and Slander (12th Edition) state the followings:-
79.In my view, Part 1, Part 2 and Part 3 of paragraph 1.6 of the 2013 AGM Minutes are all factual information which could be verified. If there is anything which can be regarded as a comment in paragraph 1.6, it is to be found in Part 4. 80.In Part 4, Lam as Chairman of the MC of the IO emphasized that there were a small group of owners, who were frequently attempting to disturb the normal operations of Tung Lo Court, causing the IO to face many unnecessary litigations and causing great increases of the IO’s expenses. 81.The commenting part is this:-
82.In Mr Milton Pena v Temside Hospital NHS Foundation Trust & Anor [2011] EWHC 3027, Mr Justice Eady considered the nature of a comment in paragraph 27 of the judgment:-
83.The aforesaid comment in Part 4 was made on the occasion of the 2013 AGM on 24 September 2013 when Lam as Chairman of the MC of the IO was reporting on various matters relating to the management of Tung Lo Court. Lam was obviously discharging his duty as Chairman and reporting a matter of public interest to the attending owners and residents. 84.In London Artists v Littler [1969] 2 QB 375, Lord Denning MR said this at 391:-
85.In my view, the comment by Lam was based and supported by the following facts which are true:-
86.It is not the function of this court to find out the real motives of the parties in the aforesaid litigations and apportion the blame among them. But with such a background, any honest and reasonable person would get an impression that there is a group of owners who were dissatisfied with and unwilling to cooperate with the IO. By not cooperating with the IO and engaging in various litigations with the IO, one could infer that this group of owners were attempting to disturb the normal operations of Tung Lo Court and the IO. Such litigations would not be necessary if all the parties involved had tried to cooperate and adopt a less confrontational approach in their dealings with each other. These litigations were costing the IO’s time, energy and resources. 87.With this factual background and impression, the comment made by Lam at the 2013 AGM would be a fair comment. This is just a comment which could have been made by an honest and reasonable person. 88.By pointing out the “legal action” in Part 1 and “unnecessary litigations” in Part 4 and naming some of the litigations involving the IO, I accept that Lam had already indicated the range of facts on which he commented. The relevant principle on this aspect is stated in Joseph v Spiller [2011] 1 AC 852 at paragraph 104:
Malice in publishing the First Statements? 89.I find that Lam has a defence of fair comment in respect of the First Statements. But if Tsui can establish malice on the part of Lam, this will defeat Lam’s defence of fair comment. 90.Paragraph 12.36 of Gatley on Libel and Slander (12th Edition) states the following on malice:-
91.In paragraph 8(f) and (g) of the Amended Reply, it is pleaded that Lam could not rely on the defence of fair comment because of malice and his comments were based on facts that were irrelevant or non-existent. 92.I do not agree with Tsui. The comment by Lam was based on the true facts as outlined in paragraph 85 hereinabove. Those facts could hardly be disputed. 93.There is nothing to show that Lam did not genuinely hold the view he expressed. I find that Tsui has failed to prove any malice on the part of Lam which would defeat the defence of fair comment. Defence of qualified privilege in respect of the First Statements 94.In Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328, Mr Justice Lok explained the defence of qualified privilege in the context of a dispute between an owner in a building and the chairperson of the management committee of the incorporated owners:-
95.Lam’s basis for relying on the defence of qualified privilege has been pleaded in paragraph 15(a) of the Amended Defence:-
96.I accept that the defence of qualified privilege is available to Lam. Lam, as Chairman of the 30th MC of the IO, had the moral and social duty to make a comment relating to the aforesaid matters and the owners and residents had a corresponding interest in receiving Lam’s comment at the 2013 AGM. 97.But even if the defence of qualified privilege is available to Lam, such a defence can be defeated if Tsui can prove malice on the part of Lam. 98.Paragraphs 17.2, 17.3 and 17.7 of Gatley on Libel and Slander (12th Edition) state the followings about the concept of malice in the context of the defence of qualified privilege:-
The plaintiff’s arguments on “malice” in respect of the First Statements 99.Tsui relies on the matters pleaded in paragraph 10 of the Amended Reply to establish malice on the part of Lam when publishing the First Statements. Tsui says Lam regarded him as an opposition party because:-
100.The aforesaid incidents mentioned in paragraph 99 (a)-(e) above might give a reason for Lam to dislike Tsui. But according to decided legal principles, this is not sufficient to infer malice on the part of Lam. In any event, the whole paragraph 1.6 of the 2013 AGM Minutes makes no reference to the aforesaid incidents. There is insufficient evidence to conclude that Lam was using the occasion of the 2013 AGM to take revenge against Tsui. Tsui’s allegation that Lam was treating him as an opposition party is solely based on his own speculation. 101.In paragraph 11 of the Amended Reply, Tsui relies on statements published against him previously to infer that there was malice on the part of Lam. These statements were referred to as Serial 1 False Statements and Serial 2 False Statements in paragraphs 13 and 15 of the Statement of Claim:-
102.The aforesaid Serial 1 Statements and Serial 2 Statements relied on by Tsui were all contained in the publications P1, P3-11 which formed the subject matters of Tsui’s counterclaim against the IO in the defamation case DCCJ 3333/2011. 103.Deputy District Judge Mak already ruled in DCCJ 3333/2011 that P1, P3-11 were defamatory of Tsui but the IO succeeded in the defence of qualified privilege in relation to P5, P6, P7, P9, P10 and P11. In respect of P1, P2, P3, P4 and P8, the learned Deputy District Judge ordered the IO to pay damages in the sum of HK$450,000 to Tsui. 104.In my view, P1, P3-P11 had already been judicially considered and determined in DCCJ 3333/2011, which is a defamation claim and counterclaim involving the IO and Tsui. I find it strange that Tsui would need to raise them again in the present proceedings. 105.What is important is that there was no evidence that P1, P3-P11 were published by Lam in his personal capacity. In fact, Tsui’s counterclaim in DCCJ 3333/2011 was directed at the IO. As such, I do not see how Tsui could rely on P1, P3-P11 to infer malice on the part of Lam in respect of the First Statements. 106.One should also note that P1, P3-P11 in DCCJ 3333/2011 and the First Statements in the present case were markedly different in terms of wordings used and were published in wholly different contexts. Any reasonable person could not find the connection and infer malice on the part of Lam based on P1, P3-P11. 107.In paragraph 12 of the Amended Reply, Tsui pleaded that while he was challenging Lam’s ballot representing 240 shares in the Lands Tribunal, Lam signed and used the name of the IO to commence the defamation claim in DCCJ 3333/2011 thereby causing oppression to him. 108.The Court of Appeal in CACV 27/2015 upheld Deputy District Judge Mak’s finding that letter D3 published by Tsui was defamatory of the IO. As such, the IO was justified in initiating the claim in the first place. While Lam as chairman of the IO signed and verified the Statement of Claim on behalf of the IO, one could not infer malice purely from this act. Initiating the defamation claim in DCCJ 3333/2011 should be a collective decision of the MC of the IO. Just because Lam as Chairman was involved in the decision making process could not mean that there was malice on his part. 109.In paragraph 13 of the Amended Reply, Tsui pleaded that Lam deliberately mentioned a few more names of the owners in the First Statements in order to find excuses to justify the defamatory Imputation 1 and Imputation 2. 110.I do not accept Tsui’s complaint in this regard. By mentioning 4 cases in Part 3 of the First Statements, Lam was just reporting to the attending owners and residents about the ongoing cases in which the IO was involved and which individual owners were parties to those cases. I do not see how malice can be inferred from this act. 111.In paragraph 14 of the Amended Reply, Tsui alleged that malice could be inferred on the part of Lam because when he described the case involving Tsui in Part 3 of the First Statements, he named the case as LBDM 3333/2011 instead of its correct form DCCJ 3333/2011. In doing so, Lam wanted to give a false impression that the IO was claiming against Tsui for arrears of management fees or contributions. 112.I accept Lam’s explanation that naming the case as LDBM 3333/2011 instead of DCCJ 3333/2011 was only a typographical error on his part. While I accept that a person in the legal field might understand the prefix “LDBM” as representing a building management matter in the Lands Tribunal and the prefix “DCCJ” as representing a civil claim in the District Court, I do not believe the owners and residents receiving the First Statements from Lam would know the difference. One would be going too far to infer malice on the part Lam just because he as a layman made a mistake in the prefix of a case number. In any event, there was no mention in Part 3 of the First Statements that the case was initiated by the IO or by Tsui. 113.Overall speaking, I do not accept that Tsui has established malice on the part of Lam so as to defeat his defence of qualified privilege. There is insufficient evidence to establish the dominant motive of Lam was to injure Tsui or Lam did not believe that the First Statements were true. Meaning of the Second Statements 114.In my view, the Second Statements should be broken into 3 parts as follows when one is reading:-
115.Part A is a specific description of the IO’s intention to avoid unnecessary financial loss arising from DCCJ 3333/2011 and so tried to offer an apology to Tsui and settle with him but Tsui did not accept. 116.Part B is about Tsui’s maligning members of the MC and targeted at the Chairman and the Secretary specifically. 117.Part C is stating that Tsui’s aim was to mess up the normal operations of the building and this would directly affect all the owners’ interests. The plaintiff’s pleaded meanings of the Second Statements 118.Tsui pleads that the Second Statements in their natural and ordinary meaning contain imputations that are defamatory:-
119.I do not accept the Second Statements in their natural and ordinary meaning contain Imputation 3. Part A just factually states that the IO offered to settle with Tsui and he refused. One could not the get the meaning that Tsui is of “mean character” and “was acting unreasonably”. Part A states that the IO did not want to incur unnecessary financial loss but there is nothing suggesting that Tsui was the one making the IO “suffer unnecessary financial loss”. 120.As to Imputation 4, I accept that Part B carries the meaning of (ii) maligned all members of the MC and (iii) especially targeted at the Chairman and Secretary of the IO. However, there is nothing suggesting that Tsui was acting with malice. 121.In relation of Imputation 5, I accept that Part C carries the meaning of (ii) aimed at messing up the normal operations of Tung Lo Court and (iii) adversely affecting the interests of all the owners of Tung Lo Court. But I do not accept that Part C has any hidden meaning that Tsui was harbouring evil intention. 122.In summary, I accept that Part B and Part C of the Second Statements carry the following imputations:-
123.The aforesaid imputations I have accepted are defamatory of Tsui because they would lower Tsui’s estimation in the eyes of right-thinking members of society and adversely affect his reputation. 124.I do not accept the Second Statements carry other imputations alleged by Tsui because those imputations would involve strained, or forced or utterly unreasonable interpretation of the words in the Second Statements. Whether the Second Statements can be justified? 125.I have already decided that Part A of the Second Statements is not defamatory and does not carry the imputations alleged by Tsui. But I will also consider whether the defence of justification is applicable. 126.In my view, Part A can be justified by the following facts:-
127.Part B contains the defamatory imputations that Tsui maligned all the members of the MC and especially targeted at the Chairman and Secretary of the IO. I am of the view that Part B can be justified by the following facts:-
Defence of fair comment in respect of the Second Statements 128.Part C of the Second Statements contains the defamatory implications that Tsui aimed at messing up the normal operations of Tung Lo Court and adversely affecting the interests of all the owners of Tung Lo Court. 129.In my view, Part C should be classified as comment instead of fact according the principle in Mr Milton Pena v Temside Hospital NHS Foundation Trust & Anor which was referred to in paragraph 82 hereinabove. As such, I will consider Part C in the context of the defence of fair comment. 130.The aforesaid comment in Part C was made on the occasion of the 2015 AGM on 19 December 2015 when Lam as Chairman of the MC of the IO was reporting on various matters relating to the management of Tung Lo Court. Lam was obviously discharging his duty as Chairman and reporting a matter of public interest to the attending owners and residents. 131.In my view, the comment in Part C was based and supported by the facts referred to in paragraphs 126 and 127 hereinabove. 132.Despite the IO’s several attempts to explore settlement possibility with Tsui in DCCJ 3333/2011, there was no positive or constructive counter proposal from Lam. The findings by Deputy District Judge Mak and the Court of Appeal confirm the fact that Lam was targeting the IO, Lam as Chairman, the Secretary and the head of security. One should also note that Tsui actively initiated or participated in the litigations against the IO like LDBM 293/2010, LDBM 332/2010, LDBM 10/2011, LDBM 87/2011, DCMP 1381/2011 and LDBM 134/2012. 133.In paragraph 302 of the judgment in DCCJ 3333/2011, Deputy District Judge Mak made the following observation:
134.An honest and reasonable person with knowledge of the above facts would readily make a comment in Part C ie that Tsui was aiming at messing up the normal operations of Tung Lo Court. As said earlier, the primary responsibility of the IO is to manage the common areas of Tung Lo Court. The various litigations including DCCJ 3333/2011 would undoubtedly disrupt the normal operations of the IO and Tung Lo Court and cost the IO’s time, energy and resources. The result must be the owners of Tung Lo Court being adversely affected. 135.I, therefore, find that Lam has a defence of fair comment in relation to Part C of the Second Statements. Malice in publishing the Second Statements? 136.In paragraph 25(d) and (e) of the Amended Reply, Tsui pleads that the defence of fair comment should not be available to Lam because the comment was based on irrelevant or non-existent facts and Lam was acting with malice. 137.I have already identified the true facts on which Tsui’s comment was based ie paragraphs 126, 127, 132 and 133 hereinabove. As to malice, there is nothing to show that Lam did not genuinely hold the view he expressed. I find that Tsui has failed to prove any malice on the part of Lam which would defeat the defence of fair comment. Defence of qualified privilege in respect of the Second Statements 138.Lam’s basis for relying on the defence of qualified privilege has been pleaded in paragraph 36(a) of the Amended Defence:-
139.I accept that the defence of qualified privilege is available to Lam. Lam, as Chairman of the 31st MC of the IO, had the moral and social duty to make a comment relating to the aforesaid matters and the owners and residents had a corresponding interest in receiving Lam’s comment at the 2015 AGM. The plaintiff’s arguments on “malice” in respect of the Second Statements 140.I also need to consider whether Tsui can prove malice on the part of Lam which would defeat the defence of qualified privilege. 141.In paragraphs 99 to 113 hereinabove, I have already stated my views as to why Tsui has not successfully proved malice on the part of Lam. Here, I will consider Tsui’s further arguments on malice pertaining to the Second Statements. 142.In paragraph 30 of the Amended Reply, Tsui pleads that DCCJ 3333/2011 was not instituted by the IO or the MC, but solely by Lam himself. 143.I am puzzled by this argument. It is crystal clear that the plaintiff in DCCJ 3333/2011 was the IO. Similar argument by Tsui that DCCJ 3333/2011 was not instituted by the IO was advanced before Deputy District Judge Mak at trial and was rejected. (See: paragraphs 17-22 of judgment) 144.The minutes of the MC meetings on 6 January 2012 (See: 297-298 of TB), 12 March 2012 (See: 295-296 of TB) and 22 June 2012 (See: 299-300) show that Lam as Chairman reported the progress of DCCJ 3333/2011 to the MC from time to time. The progress of the case was also discussed at the MC’s meeting on 21 October 2013 (See: 695-697 of TB). It can be inferred that the institution of DCCJ 3333/2011 was an informed decision of the MC acting on behalf of the IO. 145.Tsui’s argument that the institution of DCCJ 3333/2011 was a sole decision of Lam and malice could be inferred must fail. 146.In paragraphs 31 and 32 of the Amended Reply, Tsui pleads that the IO lost its application to vary the costs order in CACV 27/2015. When publishing the Second Statements, Lam was trying to put the blame for IO’s loss of costs on Tsui and malice can be inferred from Lam’s conduct. 147.It is correct that the Court of Appeal made a costs order nisi that there should be no order as to costs for the trial in DCCJ 3333/2011 and the IO should pay the costs of the appeal to Tsui. The IO application for variation of the costs order nisi was refused by the Court of Appeal on 25 November 2015. 148.However, there is nothing to indicate that Lam was trying to put the blame for IO’s loss of costs on Tsui. When one reads the whole paragraph 1.12 of the 2015 AGM Minutes which contains the Second Statements, Lam reported the Court of Appeal’s decision on costs to the attending owners and residents that the IO would be liable to pay the costs of appeal to Tsui. Lam was reporting the costs order frankly and was not putting the blame on anyone. There is nothing to infer malice on his part. 149.Overall speaking, I do not accept that Tsui has established malice on the part of Lam so as to defeat his defence of qualified privilege. There is insufficient evidence to establish the dominant motive of Lam was to injure Tsui or Lam did not believe that the Second Statements were true. Defence under section 29A of Building Management Ordinance 150.Lam has also raised a defence under section 29A of Building Management Ordinance:-
151.Counsel for Tsui does not think this section will provide protection to Lam when he is being sued for defamation in his personal capacity. 152.The only case authority submitted by counsel for Lam on Section 29A is Woo Tak Yan v Lam Sik Chuen, DCCJ 5381/2009, where Deputy District Judge Grace Chan, after ruling that the defendant succeeded in the defence of justification and qualified privilege, found that a defence under section 29A would also be available. 153.In view of the fact that counsel for both sides did not make legal submissions on section 29A in depth and I have already found that the defences of justification, fair comment and qualified privilege are available to Lam, I do not think it is necessary for me to express my conclusive view on whether section 29A would also afford a defence to Lam. Republication of Serial 1 False Statements and Serial 2 False Statements? 154.In paragraph 17 of the Statement of Claim, Tsui pleads that by publishing the First Statements, Lam was in effect republishing the earlier defamatory Serial 1 False Statements and Serial 2 False Statements that were contained in the publications P1, P3-11 which formed the subject matters of Tsui’s counterclaim against the IO in DCCJ 3333/2011. 155.As said before, P1, P3 – P11 had already been judicially considered and determined in DCCJ 3333/2011, I find it strange that Tsui would need to raise them again in the present proceedings. 156.Paragraph 6.47 of Gatley on Libel and Slander (12th Edition) states the following on republication:-
157.I have already ruled that the First Statements do not carry any defamatory meaning. For the sake of argument, even assuming that the First Statements are defamatory, publishing the First Statements on 24 September 2013 could not logically mean that Lam was republishing the Serial 1 False Statements and Serial 2 False Statements which dated back to October 2010 to August 2011. 158.Comparing the First Statements in the present case with Serial 1 False Statements and Serial 2 False Statements, the wordings used are markedly different and they were published in wholly different contexts. No reasonable reader reading the First Statements could have thought of the Serial 1 False Statements and Serial 2 False Statements published more than 2 years ago. 159.Tsui’s argument on republication does not add anything to his case. Conclusion 160.In conclusion, I find that the First Statements are not defamatory. Even if they are, Lam would have the defences of justification, fair comment and qualified privilege. 161.As to the Second Statements, I find that they only carry the defamatory imputations that Tsui (a) maligned all members of the IO; (b) especially targeted at the Chairman and Secretary of the IO; (c) aimed at messing up the normal operations of Tung Lo Court and (d) adversely affecting the interests of all the owners of Tung Lo Court. But Lam has succeeded in his defences of justification, fair comment and qualified privilege. 162.I order that the plaintiff’s claim be dismissed. I also make an order nisi that the costs of this action (including all costs reserved) be paid by the plaintiff to the defendant with certificate for counsel, which shall be made absolute in the absence of application to vary within 14 days. Damages 163.In light of my conclusion, the issue of the amount of damages to be awarded to Tsui does not arise. But in deference to counsel for both sides, I also briefly state my view on the issue of damages. 164.If the First Statements and the Second Statements are all defamatory and Lam does not have any defence, it is then necessary to consider the extent to which the publications were circulated. 165.Lam admits that the First Statements and the Second Statements were read out by him at the 2013 AGM on 24 September 2013 and the 2015 AGM on 19 December 2015. 166.On the issue of reading out, I accept defence counsel’s submission that it should be a slander, which is not actionable per se without proof of special damage, unless it falls within the 4 recognised exceptions. 167.According to Tsui, the 2013 Minutes containing the First Statements were posted on or about 8 October 2013 (a) on the notice boards of Block A and Block B of Tung Lo Court, (b) on the walls of the lifts lobbies on the ground floor of Block A and Block B and (c) inside the 4 lifts of Block A and Block B. The Second Statements first appeared in Lam’s Chairman report dated 17 December 2015 which was posted up at the 2015 AGM venue and distributed to the people attending the 2015 AGM on 19 December 2015. After the 2015 AGM, the 2015 AGM Minutes were posted on or about 30 December 2015 at the same 3 spots. 168.Lam admits that they were posted up at venue (a) but denies they were posted up at any other spots. On this issue, Lam called 2 witnesses Kong Yiu Man and Tse Ching Yum to testify. They both worked at the management office of Tung Lo Court at the material times. 169.Lam admits that the Chairman’s report for the 2015 AGM was posted up inside the meeting venue and was distributed to people attending. Lam’s witness Yeung Wai Lin testified that there were about 32 people attending the 2013 AGM and about 27 people attending the 2015 AGM. 170.In the absence of compelling evidence like photos depicting the 2013 AGM Minutes and the 2015 AGM Minutes were also posted up at venues (b) and (c), I accept Kong Yiu Man’s and Tse Ching Yum’s testimonies that the minutes were only posted up at venue (a). 171.In my view, evening assuming the 2013 AGM Minutes and 2015 AGM Minutes were posted up at all the 3 spots alleged by Tsui, there would not be too much difference in terms of the extent of publication. Tung Lo Court has 352 residential units, 45 shops on the ground floor and 60 car park spaces in the basement. Only those owners or residents of Tung Lo Court who are concerned with the daily running of the building and the running of the IO would be interested in reading the minutes. I do not believe people unrelated to Tung Lo Court would bother to read. One should also bear in mind that the 2013 AGM Minutes consist of 3 pages and the First Statements only occupy about 1/3 of a page. The 2015 AGM Minutes consist of 4 pages and the Second Statements only occupy about ¼ of a page. 172.In such circumstances, counsel for Tsui’s suggestion of an award of general damages in the sum of HK1,000,000 would be excessive. 173.Counsel for Lam has referred me to a number of defamation cases involving members of the management committee and owners:-
174.I have also considered the cases referred by Deputy District Mak in the judgment of DCCJ 3333/2011, the award made in that case and the appeal judgment in CACV 27/2015. 175.In the present case, if an award for general damages needs to be made, I believe an award of HK$100,000 in respect of the First Statements and HK$100,000 in respect of the Second Statements would be appropriate. 176.Counsel for Tsui has also suggested a separate award for aggravated damages in the sum of HK$1,000,000 and a separate award for exemplary damages in the sum of HK$500,000. 177.In Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328, Mr Justice Lok considered the Court of Final Appeal’s judgment in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 and said this on the topic of aggravated damages at paragraph 111:-
178.As to exemplary damages, paragraph 9.27 of Gatley on Libel and Slander (12th Edition) states the followings:-
179.Having considered all the evidence in this case and the way Lam has conducted his defence, I do not think that this case calls for an award of aggravated damages or an award of exemplary. 180.Lastly, I thank counsel for both sides for their assistance. Their points have been duly considered before I reach my conclusion. It is unnecessary and counterproductive for me to set out each and every point taken by them. I believe the above analysis sufficiently disposes the matter.
Ms Kitty Tsang, instructed by Paul Kwong & Co, for the plaintiff Mr Henry Cheng, instructed by SK Lam, Alfred Chan & Co, for the defendant | ||||||||||||||
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