Wong Shing v. Cheung Hing

DCCJ 1567/2018

[2021] HKDC 1438

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1567 OF 2018

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Before: His Honour Judge Ko in Court

Dates of Hearing: 25-27 and 29 October 2021

Date of Judgment: 10 December 2021

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JUDGMENT

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A.   INTRODUCTION

1.It is common ground in this libel action that on 18 December 2017, the defendant published the following statement of the plaintiff (“Statement”):-

“敬告各位六壬伏英館同門：

本門弟子王十二（法道）學藝不精，不思進取，急功近利，未經師父允許，擅自傳教，誤人子弟，有辱神功，且無視師父，同門告誡，屢教不改，損壞師門聲譽。

現將其逐出師門，從今以後，此人所作所為，皆與沈雲山六壬伏英館再無半點關係。

特此聲明，望各位同們周知

丁酉年十一月初一日”

B.   THE PLAINTIFF’S CASE

2.In 1963, the plaintiff became a disciple of曾法妙師父 (“Master Miu”) to learn六壬神功 (“LYSG”) and was given the religious name (法號) “王法富”.

3.In 1999, the plaintiff joined沈雲山六壬伏英館 (“School”) to learn LYSG and was given the religious name “王法道”.  It is the plaintiff’s case that the School was established by曾法平師父 (“Master Ping”) who had learned from the same mentor of Master Miu (“Grandmaster”).  When the plaintiff joined the School, Master Ping had already retired.  Out of courtesy and respect, he treated the defendant at the School as his mentor although he had not gone through any formal ceremony to become a disciple of the defendant.

4.It is the plaintiff’s case that:-

(a)  In about 2016, he sought permission from the defendant to set up his own school to teach LYSG.  The defendant asked for $300,000 for the permission but he could not afford it.

(b)  On 11 November 2017, he set up his own school to teach LYSG in Master Miu’s tradition as he would require the defendant’s permission to teach LYSG in Master Ping’s tradition.

(c)  On 18 December 2017, the defendant performed a ritual to expel the plaintiff from the School and thereafter published the Statement on the website of the School.

5.At paragraph 5 of the Statement of Claim (“SOC”), the plaintiff pleaded that the Statement carries the following defamatory meanings:-

(a)  The plaintiff is a person of questionable character;

(b)  The plaintiff is greedy;

(c)  The plaintiff has no integrity;

(d)  The plaintiff is disrespectful; and

(e)  The purpose of the plaintiff teaching LYSG is to make quick money without regard to whether the LYSG to be learnt by his disciples would be proper and complete.

6.In this action, the plaintiff seeks damages for libel (general, aggravated and exemplary) and an injunction to restrain the defendant from further defaming him.

C.   THE DEFENDANT’S CASE

7.In response to a preliminary objection to the pleading raised by the plaintiff,[1] the defendant amended his Amended Defence at the beginning of the trial to plead alternative meanings of the words published and identify the parts which he seeks to justify or make the subject of fair comment.

8.According to his Re-Amended Defence (“RAD”):-

(a)  The defendant established the School in about 1985.

(b)  The plaintiff became his disciple in about 1999 and was given the religious name “王法道”. Prior to that, Master Ping had already retired as a mentor in LYSG and relocated to Guangdong, China.

(c)  It is the custom and tradition of LYSG that a disciple should obtain prior permission from his mentor before setting up his own school to teach LYSG.

(d)  In about 2016, the plaintiff brought up the issue of setting up his own school but the defendant was opposed to the idea as he took the view that the plaintiff was neither qualified nor skillful enough to teach LYSG.

(e)  In about November 2017, the plaintiff secretly established his own school and started teaching students of LYSG.  Despite repeated exhortations of the defendant and the plaintiff’s fellow brethren from the School (同門師兄弟), the plaintiff continued to operate his school and refused to cease his teaching activities.

(f)  On 18 December 2017, the defendant expelled the plaintiff from the School and published the Statement on the School’s website administered by him.

9.The defendant denies the Statement was defamatory.  He also invokes the defences of justification and fair comment.

D.   THE TRIAL

10.The main issues for trial are:-

(a)  What is the meaning of the Statement?  Is it defamatory of the plaintiff?

(b)  Insofar as the Statement is defamatory, whether the defendant may avail himself of the defence of justification and/or fair comment?

(c)  In the event the plaintiff succeeds in his claim, what is the appropriate relief?

11.Apart from testifying himself, the plaintiff called黃壽恩 (“Wong”) and 駱耀麒 (“Lok”) as his witnesses.

12.On the part of the defence, the defendant, 朱少昌 (“Chu”) and孔綺雲 testified.

13.There is no dispute over the documentary evidence including, in particular:-

(a)  a plaque (牌匾) given to the plaintiff in about 2014 on the occasion of his moving the altar at his residence to a new location (“Plaque”);[2]

(b)  the plaintiff’s name card (“P’s Name Card”);[3]

(c)  signboards promoting the LYSG-related services of the plaintiff in Lei Yue Mun (“P’s Signboards”);[4] and

(d)  the webpage of the plaintiff (“P’s Webpage”).[5]

14.There is also no dispute as to the applicable legal principles.  They have been set out by the plaintiff’s counsel (Mr Damian Wong and Ms Jenny Lok) in their submissions and supplemented by the defendant’s counsel (Mr Lawrence Cheung and Ms Teresa Leung).  I shall make references to these principles in the ensuing discussion.

E.   DISCUSSION

E1.    What is the meaning of the Statement?  Is it defamatory of the plaintiff?

15.Both counsel cited paras 21 & 22 of the recent judgment of DHCJ Richard Khaw SC in Independent Commentators Association Limited v Joint Publishing (HK) Co Ltd [2021] HKCFI 743 for the principles to be applied in determining the meaning of allegedly defamatory words, which I gratefully adopt.

16.Regarding the nature of the exercise:-

(a)  The single meaning rule applies.  This means the words complained of are deemed to bear only one natural and ordinary meaning, which is the meaning that the words would convey to the reasonable reader;

(b)  In determining meaning, words in a publication are normally construed according to their natural and ordinary meaning.  This does not involve a technical process of construction or analysis.  The relevant inquiry is what meaning the words would convey to the mind of an ordinary, reasonable, fair-minded reader;

(c)   Regarding the question of how the meaning conveyed by the words to the mind of an ordinary, reasonable, fair-minded reader is determined, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 provides the following guidance at para 14:-

(i)  The governing principle is reasonableness.

(ii)  The hypothetical reasonable reader is not naïve, but he is not unduly suspicious.  He can read between the lines.  He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as a man who is not avid for scandal, and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(iii)  Over-elaborate analysis is best avoided.

(iv)  The intention of the publisher is irrelevant.

(d)  Further, in some circumstances, the defamation does not lie in the actual words used, but in an inferential or implied meaning that the words are capable of bearing without the need to have recourse to extrinsic facts.

17.As regards the scope of the relevant inquiry:-

(a)  The article must be read as a whole.  A reasonable reader is assumed to have read the whole article complained of.

(b)  The context and circumstances of the publication must be taken into account.

(c)  In reading a publication in its entire context, the court will also bear in mind the general tenor of the entire publication.  The fact that the publication gives a generally uncomplimentary rendering of the plaintiff will obviously affect a reasonable reader’s understanding of the specific portions or statements in the publication.

18.So, the starting point is the natural and ordinary meaning of the words used.  The submissions of the parties are summarised below:-[6]

	Plaintiff’s submission	Defendant’s submission
學藝不精， 不思進取	The plaintiff has not learned LYSG completely and properly; his LYSG are poor and superficial; he does not truly understand LYSG; he is lazy and does not want to work hard in his study; he has not made any effort to improve his LYSG; he is not qualified to teach LYSG	The plaintiff was not yet an expert in the LYSG as taught by the defendant and that he lacked motivation and/or intention to improve such skills
急功近利	The plaintiff is eager for quick success and instant benefit and only looks for short-term rewards	The plaintiff was impatient, eager and in a rush for the quick or short-term result or benefit of establishing his own school to teach LYSG and becoming a mentor himself
未經師父允許，擅自傅教	The plaintiff has violated the rules of LYSG and teaches LYSG without permission of his mentor	The plaintiff taught LYSG, which he learnt from the defendant, to others without obtaining his mentor’s (ie the defendant’s) prior permission
誤人子弟	The plaintiff’s teaching of LYSG is misleading and wrong.  People who learn LYSG from the plaintiff will suffer adverse consequences	In light of his lack of expertise in the LYSG as taught by the defendant, the plaintiff would mislead students, to whom he taught LYSG, by incompetence and/or mistake
有辱神功	The plaintiff’s misconduct is so serious that he has brought LYSG into disrepute	The plaintiff’s substandard teaching of LYSG which he learnt from the defendant, without being an expert of the same, would bring LYSG into disrepute
且無視師父，同門告誡，屢教不改，損壞師門聲譽	The plaintiff has no respect or regard to his mentor or fellow disciples; He ignores the sincere exhortations of his mentor and fellow disciples, and refuse to amend; his misconduct is so serious that he has damaged the reputation of the School	Despite repeated exhortations, the plaintiff disregarded the advice of his mentor (ie the defendant) and fellow LYSG disciples of the School and continued on the mistaken path of operating his new school to teach the LYSG which he learnt from the defendant without the defendant’s permission, thereby damaging the reputation of the School
現將其逐出師門	The plaintiff’s misconduct is so serious that he should not be allowed to remain in the School	The defendant expelled the plaintiff from the School

19.It has been said that when a judge has to decide on the meaning and whether the words used are defamatory, the correct approach is to ask what overall impression the material has made on him/her and then to check that against the detailed textual arguments advanced by the parties.[7]

20.My reading of the Statement is that it is a rebuke of the plaintiff by the School in the context of LYSG:-

(a)  The plaintiff is disavowed and expelled from the School (現將其逐出師門，從今以後，此人所作所為，皆與沈雲山六壬伏英館再無半點關係);

(b)  for teaching others of LYSG without permission from his mentor and despite the exhortations of his mentor and fellow brethren (急功近利，未經師父允許，擅自傳教…且無視師父，同門告誡，屢教不改);

(c)  when his own learning in LYSG is incomplete and making no progress (學藝不精，不思進取); and

(d)  his so-doing would mislead others in LYSG, spoil the reputation of LYSG, and bring the School into disrepute (誤人子弟，有辱神功…損壞師門聲譽).

The Statement imputes that the plaintiff is not qualified to teach LYSG.

21.In my view, the textual arguments advanced by the parties, summarised above, support my above impression.

22.It is the plaintiff’s case that the Statement carries five defamatory imputations or stings, which is disputed by the defendant.  Their respective arguments are set out below.

Plaintiff’s submission	Defendant’s submission
(i)     The plaintiff is a person of questionable character	Denied
(ii)    The plaintiff is greedy	Denied
(iii)   The plaintiff has no integrity	Denied
(iv)   The plaintiff is disrespectful	The plaintiff did not respect the exhortations of his mentor, meaning the defendant, and his fellow brethren of the School by continuing with the operation of his new school to teach LYSG which he learnt from the defendant without the defendant’s permission
(v)     The purpose of the plaintiff teaching LYSG is to make quick money without regard to whether the LYSG to be learnt by his disciple are proper and complete	The plaintiff disregarded whether the LYSG to be learnt by his disciples is proper and complete, but there is no suggestion that the purpose of the plaintiff teaching LYSG is to make quick money.

23.In his closing submission, Mr Wong emphasizes the seriousness of the Statement.  He says that reading the Statement as a whole, the defendant must have found the plaintiff’s learning in LYSG, competence, integrity and character so objectionable that he had to expel the plaintiff from the School and publish the Statement to warn others of the plaintiff.

24.In my view, (i) to (iv) are too general and without regard to the context of the Statement.  An ordinary, reasonable and fair-minded reader would have appreciated that the Statement was issued in the context of the plaintiff’s dealings with the School in LYSG.  The range of permissible defamatory meanings of the words used is delimited by such context and no one would understand the Statement to be passing judgment on the plaintiff generally – that he is of questionable character, greedy, without integrity and disrespectful.

25.Taking (iv) as an example, the textual analysis of both parties (summarized above) is confined to the relationship between the plaintiff on the one hand and his mentor and fellow brethren at the School on the other hand. It is not a general imputation on the character of the plaintiff that he is disrespectful as contended by Mr Wong.

26.In relation to (ii) and (v), Mr Wong tries to introduce a financial perspective to the argument by submitting that the publication was calculated for financial rewards such that any person who wished to learn LYSG would go to the School as opposed to the plaintiff’s school.  I do not accept his contention.

27.First, it is settled law that in determining the meaning of the words used, the intention and knowledge of the publisher are immaterial.[8]  Even if the defendant had wanted to quell competition by publishing the Statement (of which there is no evidence), that is not something that this court should take into account in working out its meaning.  What matters is what an ordinary, reasonable and fair-minded person would understand the words to mean objectively.  The meaning is not dictated by what the publisher intended to convey. 

28.Secondly, the Chinese idiom “急功近利” means in a rush for the result or benefit.[9] The intended result or benefit can be financial or otherwise.  In the context of the Statement, the idiom is used to connect the plaintiff’s inadequacies in LYSG (學藝不精，不思進取) to his conduct complained of (未經師父允許，擅自傳教).  Reading the phrase in its textual context, I agree with Mr Cheung that it refers to the fact that the plaintiff insisted on opening his own school despite his inadequacies in LYSG and the advice of his mentor.  Notwithstanding the word “利” in the idiom, there is nothing in the context to lead others to think that the plaintiff is greedy or that his purpose of opening his own school is to make quick money as contended by Mr Wong.  As the learned Judge observed in Independent Commentators, an ordinary, reasonable, fair-minded reader is not avid for scandal or prone to select one bad meaning where other non-defamatory meanings are available.  After all, it is an honour and to one’s satisfaction to found one’s own school to impart knowledge and pass on a good tradition – something that the plaintiff has emphasized in P’s Webpage. [10]

29.To conclude, I accept the defendant’s contention and find that the Statement carries the following stings against the plaintiff:-

(a)  That the plaintiff is disrespectful to his mentor and fellow brethren at the School.

(b)  That the plaintiff disregarded whether the LYSG to be taught by him would be proper and complete.

30.Whilst the plaintiff has failed to attribute to the Statement the overall stings he contended, the Statement is nonetheless defamatory in my view.

31.I reject Mr Cheung’s contention in his opening submissions that the Statement is not defamatory because it is “factually true”, as “true words can be defamatory, although not unlawful”. [11]

32.As said in para 1.7 of Gatley:-

“… there is no wholly satisfactory legal definition of the term [defamatory]. Three formulae have been particularly influential: (1) would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally’? (2) would the imputation tend to cause others to shun or avoid the claimant? and (3) would the words tend to expose the claimant to ‘hatred, contempt or ridicule’?”

33.In his closing submissions, Mr Cheung argues that the Statement would not lower the plaintiff in the estimation of right-thinking members of society generally because only people who are related to the School and/or the plaintiff would appreciate that “王十二（法道）” is a reference to the plaintiff.  In my view, Mr Cheung’s argument is, to a certain extent, inconsistent with his concession that the Statement is published of the plaintiff.

34.Anyway, the real test should be “whether the words might be understood by reasonable people to refer to the claimant, subject to the qualification that where the words are published to persons who have special knowledge the issue will be decided by reference to what reasonable persons possessing that knowledge would understand by them.”[12] In this case, the Statement was addressed to fellow members of the School (各位六壬伏英館同門) who would appreciate that it is a reference to the plaintiff who is also known as “王十二” and goes by the religious name “王法道”. 

35.Mr Cheung has otherwise conceded that the Statement tends to cause others to shun or avoid the plaintiff.[13]

36.Thus, the Statement may be said to have the first and second effect in the above quoted passage.

37.I reject Mr Cheung’s contention that the Statement must satisfy all three formulae for it to be defamatory.  His contention is based on a misreading of the quoted passage – that the formulae stated therein are cumulative.

38.Moreover, it is elaborated in Gatley that:-

“It is defamatory to impute that a person is unfit for his profession or calling owing to want of ability, mental stability, learning or some other necessary qualification…” (para 2.38)

“Any imputation which may tend to injure a person’s reputation in a business, employment, trade, profession, calling or office carried on or held by him is defamatory provided that such imputation meets the necessary threshold of seriousness.” (para 2.35)

39.The Statement clearly imputes that the plaintiff is not qualified to teach LYSG.  I reject Mr Cheung’s contention that the Statement does not meet the necessary threshold of seriousness, as the plaintiff was expelled from the School and disowned.

40.All in all, I accept that the Statement is defamatory of the plaintiff.

E2.    The defences

41.If a publication contains defamatory statements both of fact and of opinion, then the defendant must prove that the statements of fact are true and that the statements of opinion are correct or the subject of fair comment to succeed in his defence.[14]

42.In para 7(c) of the RAD, the defendant identified:-

(a)  “未經師父允許，擅自傳教”, “且無視師父，同門告誡，屢教不改” and “現將其逐出師門” as statements of fact; and

(b)  “學藝不精，不思進取，急功近利”, “誤人子弟，有辱神功” and “損壞師門聲譽” as his opinion.

E2.1  The defence of justification

43.The plaintiff concedes that “現將其逐出師門” is true.[15]

44.Mr Wong submits that “未經師父允許，擅自傳教” should be a reference to the plaintiff teaching LYSG in Master Ping’s tradition. He argues that:-

(a)  According to the plaintiff, one Cheung Gor (張哥)[16] performed the ceremony on behalf of Master Miu in 2006 to grant permission to the plaintiff to teach LYSG in Master Miu’s tradition.  However, the plaintiff did not then have any intention to set up his own school as he was busy with his seafood stall business.

(b)  In 2016, the plaintiff wanted to start his own school and sought permission from the defendant but the defendant demanded $300,000 for the permission which he could not afford.

(c)  Since the plaintiff did not have the defendant’s permission to teach LYSG in Master Ping’s tradition, he set up his own school in November 2017 under the religious name of “王法富” to teach LYSG in Master Miu’s tradition. 

(d)  According to P’s Webpage, the LYSG taught in the plaintiff’s school consists of 4 levels.  This is in line with Master Miu’s tradition (which has 4 levels), whereas the LYSG in Master Ping’s tradition comprises 5 levels.

(e)  The defendant has admitted under cross-examination that the plaintiff does not require his permission to teach LYSG in Master Miu’s tradition. 

(f)  So, the plaintiff was in fact teaching LYSG in Master Miu’s tradition at his school.  On the contrary, there is nothing to prove that the plaintiff was teaching LYSG in Master Ping’s tradition.

45.I reject the plaintiff’s argument.  I do not accept his evidence that he ultimately confined his teaching to the tradition of Master Miu.  In my view, there is clear evidence that the plaintiff is fusing the two traditions in terms of his teaching:-

(a)  When the plaintiff first joined the School, he professed an intention to fuse the two traditions into his own teaching. (“我為了學習曾法平師父一支的法門，以集兩支大全，將來開館授徒…”)

(b)  Whilst, according to the evidence, there is a difference in the number of levels in the two traditions, it does not mean that the teachings (especially at the elementary levels) are mutually exclusive.  In the plaintiff’s own words: “我亦發現兩派法門其實相差不大。”

The fact that the plaintiff is using the religious name “王法富”[17] and adopting a 4-level approach in his teaching does not mean that he is not passing on what he has learnt from Master Ping’s tradition. 

(c)  Indeed, the plaintiff has made it clear in P’s Webpage that he is fusing the two traditions in his own teaching:-

“回顧過去的五十多年神功的經験，無論是曾法妙師父傳下的，或曾法平師父傳下的一招一式，大至上能認知的我都收集了。開業授徒至今，已經訂制好一套傳法的程序…將我畢生的六壬神功的精髓傳下去…”

“五十多年來，一直先後學習妙叔與平叔兩支水的法門…決定於晚年的退休期間開館授徒，能將畢生所學所識，為各有需要幫助之士努力下去…”

(d)  The plaintiff has put up P’s Signboards in Lei Yue Mun to promote his LYSG-related services.  Curiously, the third character of the plaintiff’s religious name on the signboards was obliterated leaving just the first two characters “王法”. The explanation of the plaintiff during cross-examination (that the signboards were erected a few years before November 2017 and could not possibly refer to his new school) just muddled the waters further. 

If he had used the name “王法富”, there would be no need to obliterate the third character.  It is more likely than not that he had initially written “王法道” on the signboards but then obliterated the third character to disassociate himself from Master Ping’s tradition after this dispute had erupted.  If he had wanted to clarify that he was teaching LYSG in Master Miu’s tradition, he could have replaced the third character so that his full religious name in that tradition would be shown.

(e)  At no time prior to the publication of the Statement did the plaintiff tell the defendant that he was merely teaching LYSG in Master Miu’s tradition. That fact was only communicated by means of the letters before action.

46.For the purposes of justification,

“… only the ‘substantial’ truth of the imputation must be proved. The defendant can rely on the defence of justification if he proves that ‘the main charge, or gist, of the libel’ is true.”[18]

The Statement was published in the School’s website and addressed to fellow brethren of the School.  Given its context, the main charge of the Statement must be that the plaintiff was teaching LYSG in the tradition of the School without the defendant’s permission.

47.It is common ground that the plaintiff requires the defendant’s permission to teach LYSG in Master Ping’s tradition and that he does not have that permission.  It does not matter if the plaintiff is also teaching LYSG in some other tradition.  I therefore accept that the defendant has proved the substantial truth of “未經師父允許，擅自傳教”.

48.As to “且無視師父，同門告誡，屢教不改”, Mr Cheung concedes that there is no evidence of the plaintiff’s brethren exhorting the plaintiff (同門告誡). Be that as it may, I agree with him that the defendant may pray in aid section 26 of the Defamation Ordinance, Cap 21 which is in these terms:-

“In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

49.As stated before, the main charge is that the plaintiff taught LYSG in Master Ping’s tradition without his mentor’s permission.  The fact that in so doing he has also disregarded the dissuasion of his fellow brethren is neither here nor there.

50.All in all, I accept that the defendant has proved the substantial truth of the factual statements in the Statement.

E2.2   The defence of fair comment

51.Turning to fair comment, Lord Nicholls NPJ has recounted the five ingredients of the defence in Cheng v Tse Wai Chun [2000] 3 HKLRD 418 at 424F-425D as follows:-

(1)  The comment must be on a matter of public interest;

(2)  The comment must be recognisable as comment, as distinct from an imputation of fact;

(3)  The comment must be based on facts which are true or protected by privilege;

(4)  The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded;

(5)  The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.  It must be germane to the subject matter criticised.

52.As to ingredient (1), Mr Wong doubts if the defendant’s comment was made in the public interest.  He submits that only “a very small minority of the population” practise LYSG and the test propounded in London Artist v Littler [1969] 2 QB 375 is not satisfied.

53.In London Artist, Lord Denning approved the ruling in South Hetton Coal Co v North-Eastern News Association [1894] 1 QB 133 that the sanitary condition of some cottages in a village was “a matter of public interest that the conduct of the employers should be criticised” and elaborated (at p 391) that:-

“There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.” (my emphasis)

54.Referring to the facts in London Artist, His Lordship said that the public should be legitimately interested in what happened at the theatre because:-

“The stars welcome publicity. They want to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and goings of performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time – thus putting a successful play in peril – it is to my mind a matter of public interest in which everyone, Press and all, are entitled to comment freely.”

55.In my view, Lord Denning was not propounding a narrow test with reference to the number of people affected (in terms of “people at large”).  What he meant was that to pass the test, others apart from the immediate parties should also be legitimately concerned about the subject matter being commented.  If it were otherwise, then the matter would be private and not a matter of public interest.

56.We are here concerned with the learning of LYSG, which is actively promoted by both parties to the general public.  As the plaintiff was proposing to set up his own school and given his previous long association with the defendant and the School,[19] the public should be legitimately interested in, and concerned with, whether the plaintiff is qualified to do so.  It is to my mind a matter of public interest for the defendant to set the record straight (so to speak) that the plaintiff does not have his permission.

57.As to ingredient (2), the plaintiff does not dispute the defendant’s classification of fact and opinion.

58.As to ingredients (3) and (4), Mr Wong submits that the defendant’s comment was premised on the alleged fact that the plaintiff did not possess the requisite skills to teach students in LYSG and that there is plenty of evidence to show otherwise.[20]

59.I refuse to be drawn into the debate about the proficiency of the plaintiff in LYSG.  As I explained to the parties during closing submissions, there is no universally accepted assessment or system to appraise and accredit an LYSG practitioner and this court is certainly not equipped with the expertise to do so. 

60.Take for example the fact that the plaintiff presided over the annual worship of the Grandmaster between 2007 and 2017 – an example urged upon me by Mr Wong.  According to Mr Wong, only persons with considerable reputation and qualification in LYSG would be appointed for that role (described by Mr Wong as “Chief Priest”) who is required to perform certain ritual and hand mudras (手印) at the ceremony.

61.However, according to the defendant, the plaintiff was chosen for his loud voice and the ritual performed at the ceremony was simple enough.

62.Whilst the plaintiff’s own description of his role as “主祭喝令官” (presiding official who shout out the instructions) in his witness statement lends support to the defendant’s contention, there is no basis for this court to jump to any conclusion.

63.In my view, Mr Wong is not consistent in his argument.  Previously in relation to the defence of justification, he submitted that the defendant would need to prove that the plaintiff had been teaching LYSG in Master Ping’s tradition.  Here, he argues that the underpinning fact of the defendant’s comment is the general proficiency of the plaintiff in LYSG. 

64.What matters here is the factual basis expressed or implicit in the Statement upon which the comment was made.  As I mentioned before, the Statement was published to readers who would appreciate that it was a reference to the plaintiff teaching LYSG in Master Ping’s tradition without permission.  I have already accepted the truthfulness of that statement.  On that basis, readers can judge for themselves how far the comment was well founded. 

65.Turning to ingredient (5), Mr Wong criticizes the defendant for going beyond announcing the plaintiff’s expulsion and making personal comment against the plaintiff.  He characterizes such comment as “bare comment” with reference to para 12.9 of Gatley.  I do not agree.

66.To start with, it has been said by Lord Nicholls at 425C in Tse Wai Chun that:-

“Dislike of an artist’s style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at p 174.”

Thus, the fact that the defendant has gone beyond announcing the plaintiff’s expulsion does not take his comment beyond the outer limits of the defence.  

67.What the learned editors of Gatley have said in para 12.9 is that:-

“On occasion, a statement might be intended as a comment but fails for want of some other element of the defence. For instance, a publisher might state ‘on the basis of what I know, Jones is a thief’, without giving any indication of what the underpinning facts are. This situation has become known as ‘bare comment’.”

This is not the situation here as the defendant has stated the factual basis of his comment in the Statement for readers to judge for themselves.

68.I accept that all five ingredients of the defence of fair comment are present.

69.Even if the defendant has brought his case within the outer limits of the defence, the plaintiff may still defeat or rebut the defence by proving that when the defendant made his comment, he was “actuated by malice”. 

70.The issue was raised in para 12(c) of the plaintiff’s Reply:-

“The Defendant published the Defamatory Statements with malice for financial rewards such that any person who wishes to learn [LYSG] would go to the School, rather than the Plaintiff’s school. The Plaintiff also relies on the fact that the Defendant requested the Plaintiff to pay $300,000 in return for the permission and unreasonably withheld giving permission when the Plaintiff could not afford to pay the said sum.”

71.It should be noted that the term “malice” bears a special meaning in the context of fair comment.  It means “the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed”.[21]

72.In paragraphs 36-67 of his closing submissions, Mr Wong challenges the genuineness of the defendant’s belief with reference to (i) the annual worship of the Grandmaster; (ii) P’s Name Card; (iii) the Plaque; (iv) three spell books of LYSG (六壬符書); and (v) the defendant asking the plaintiff to do the impossible.

73.(i) was discussed above.  That is not evidence of the defendant’s acceptance that the plaintiff was qualified to teach.

74.In terms of (ii), it is the plaintiff’s evidence that the defendant printed those name cards for him in about 2005.  The name cards carry the title “神訣吐教” which, according to the plaintiff’s interpretation, means he had reached the requisite level and been given approval by his mentor to open his own school to teach LYSG.  On that occasion, according to the plaintiff, the defendant also demanded for the lai see (利是) to be received by the plaintiff from his first five disciples. 

75.All the above are denied.  According to the defendant, the plaintiff just showed him (for the first time) a P’s Name Card after the ritual to expel the plaintiff from the School and exclaimed: “我印咗卡片!”.

76.The parties spent considerable time at trial exploring with each witness the meaning of “神訣吐教”. However, each witness has his own interpretation and no one is any wiser after hearing their evidence.  In any event, the plaintiff has conceded under cross-examination that his own interpretation is incorrect.

77.In my view, there is also inherent inconsistency in the plaintiff’s evidence.  If the plaintiff’s evidence was true, it would be illogical for the defendant to give the plaintiff the name cards before receiving the lai see he demanded as per the plaintiff.  What’s more, the plaintiff could simply fulfil the pre-condition (by handing over the lai see the defendant had demanded) and requested the defendant to perform the ritual to enable him to teach as opposed to seeking permission all over again.  I reject the plaintiff’s evidence on balance of probability.

78.In terms of (iii), the defendant, together with others at the School, presented the Plaque to the plaintiff on which four Chinese characters “圓德歸忒” were written.  It is the plaintiff’s case that the Plaque is a testament of the plaintiff’s proficiency in LYSG.

79.It is common ground that the four characters were chosen by Wong for the occasion.  According to him, the overall meaning of the four characters is: “你我作為同門，要堅持神功路上所學所識，扶危救急”. This has nothing to do with the plaintiff’s proficiency in LYSG.

80.In terms of (iv), it is the plaintiff’s evidence that shortly after he joined the School, the defendant passed him the three spell books through one Siu Kin-Man (“Siu”) which contained all the charms (符咒) in Master Ping’s tradition that would only be imparted to a disciple that has reached a certain level. 

81.It is not disputed that the spell books are available on the internet. The fact that the plaintiff is in possession of such books (even if they indirectly came from the defendant) is no indication of his competence in LYSG.

82.In terms of (v), Mr Wong complains that the defendant had set an impossible task for the plaintiff by asking the plaintiff to demonstrate the ritual to enable a student to teach without first teaching the plaintiff that ritual. 

83.I do not accept that the plaintiff had been asked to do the impossible. Apparently, the plaintiff did not refuse but twice tried to demonstrate the ritual to gain the defendant’s approval.  Moreover, he has told his potential students that he could perform the ritual to enable them to teach.[22]

84.All in all, I do not accept there is evidence that the defendant has recognised the plaintiff’s proficiency in LYSG.  Even if he did, that was no recognition of the plaintiff’s qualification to teach. 

85.At the most, Mr Wong’s argument amounts to a complaint that the defendant unreasonably withheld his permission.  But that does not of itself defeat the defence.  As Lord Nicholls explained in Tse Wai Chun at 438D:-

“Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred.”

86.In the circumstances of this case:-

(a)  The defendant is recognised by the plaintiff and all the witnesses as a top mentor in LYSG. 

(b)  The defendant is the person in charge of the School and had taught the plaintiff for nearly two decades from 1999 to 2017.  When the plaintiff first joined the School, he deemed it worthwhile to switch tradition despite the criticisms of his fellow brethren from Master Miu’s tradition.

(c)  It is common ground that a disciple in LYSG has to work hard to attain the requisite standard before he or she is allowed to teach.  This was how the plaintiff himself explained it to his potential students: “我向曾及溫兩人表示我非常樂意協助他們在內地推廣神功，但前提是他們必須取得傳教資格。我告訴他們兩人，如果想取得神功傳教資格，必須在未來的日子痛下苦功，努力學習。同時我亦強調，若他們的修為達不到我認為可以傳教的水平，我不會給他們傳教許可。”

(d)     The plaintiff was not particularly diligent in his study.  It is his evidence that after joining the School, “其後鯉魚門海鮮檔的工作越來越忙，我每月初一十五上伏英館主要是拜神及與同門友人聊天。”

87.I agree with Mr Cheung that no one was in a better position than the defendant to say whether the plaintiff was qualified to teach LYSG or not. 

88.Furthermore, it is the plaintiff’s evidence that prior to setting up his own school, he did not tell the defendant that he would only teach LYSG in Master Miu’s tradition.  That fact was only communicated to the defendant after the publication of the Statement.

89.I am not surprised that the defendant had reacted as he did in terms of disowning the plaintiff and expelling the plaintiff from the School.  His reaction is within the range of reasonable reaction of someone of the defendant’s standing and experience who must have cared deeply about LYSG and the School.  The ritual held at the School and the publication of the Statement were public manifestation of his disapproval.  Nothing in the plaintiff’s argument has caused me to second-guess the defendant’s motive or doubt the honesty of his belief in the comment he expressed.  

90.In conclusion, I find for the defendant on the defence of fair comment as well.

E2.3  The Reynolds defence

91.In passing, I should mention the fact that both counsel have also submitted on the Reynolds defence (or the defence of public interest). In my view, that defence is not open to the defendant as there is no pleading of responsible journalism (or responsible public dissemination of information) which is an essential element of the defence. [23]

E3.    Relief

92.Based on my above findings, there is no basis to grant any relief to the plaintiff.

93.Even if I had found for the plaintiff, I would only have awarded nominal damages:-

(a)  The plaintiff has abandoned his claim for exemplary damages.[24]

(b)  There has been no attempt by the plaintiff to call his two potential students from mainland to testify, thereby depriving the defendant of the opportunity to test the veracity of their joint statement (at pp 164-165 of the Bundle) that they would have each paid the plaintiff $300,000 for studying with the plaintiff.

(c)  I do not accept the plaintiff’s claim that “由開館至今，每天都收到不少人致電查詢向我拜師學習神功，多則20個，少則3至5個，但有不少人在決定拜師後不久取消，他們不約而同告訴我是因為張慶的誹謗公告...”, as he has (unreasonably in my view) regarded those who enquired but did not eventually join his school as all being caused by the Statement.[25]

(d)  The plaintiff is unable to substantiate his claim that “有部份的徒弟亦因為看過張慶的誹謗公告而離開” as he has not kept any record.  And it is his evidence that despite the Statement, his school is in fact doing well.

(e)  Lok was not called as an expert.  There is nothing to confirm that he has the expertise to offer his opinion on the effect of the Statement based on his analysis of the internet traffic.

F.   CONCLUSION

94.For the above reasons, I find the Statement defamatory of the plaintiff but the defendant can avail himself of the defences of justification and fair comment.  Consequently, the publication of the Statement is not unlawful and the plaintiff’s claim is dismissed.

95.As costs normally follow the event, I make a costs order nisi that the plaintiff is to pay the defendant’s costs of defending this action including any costs reserved, to be taxed if not agreed.

Mr Damian Wong and Ms Jenny Lok, instructed by W. F. Kwok & Co., for the plaintiff

Mr Lawrence Cheung and Ms Teresa Leung, instructed by Francis Kong & Co., for the defendant