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 29 April 2022.
1. This is the plaintiff Tsui Wai Yip’s application by summons filed on 23 December 2021 for leave to appeal against my judgment dated 6 December 2021 (“the Judgment”). Unless otherwise stated, I will adopt the same abbreviations and nomenclatures as used in the Judgment.
Cited by 3 cases · Cites 15 cases
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DCCJ 4878/2017 [2022] HKDC 385 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4878 OF 2017 -------------------------------------- BETWEEN
-------------------------------------- Before: Deputy District Judge Timon Shum in Chambers (Paper Disposal) Date of the Plaintiff’s Written Submissions: 18 February 2022 Date of the Defendant’s Written Submissions: 4 March 2022 Date of the Plaintiff’s Further Written Submissions: 15 March 2022 Date of Decision: 29 April 2022 --------------------- DECISION ---------------------- INTRODUCTION 1.This is the plaintiff Tsui Wai Yip’s application by summons filed on 23 December 2021 for leave to appeal against my judgment dated 6 December 2021 (“the Judgment”). Unless otherwise stated, I will adopt the same abbreviations and nomenclatures as used in the Judgment. 2.The hearing of the summons was originally fixed on 11 March 2022. I decided to vacate the hearing date and deal with Tsui’s application by way of paper disposal. I directed the parties to file their written submissions. 3.The concluding order from the Judgment was as follows:-
PRINCIPLES FOR GRANTING LEAVE TO APPEAL 4.Counsel for Tsui has raised a total of 24 grounds of appeal. In my view, most of grounds (if not all of them) reflect disagreement to the analysis in the Judgment. While disagreement on the part of a losing party is natural, whether such disagreement would amount to a valid ground of appeal is another thing. I will go through the grounds raised by Tsui in the order raised after setting out the relevant legal principles. 5.Under section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless:-
6.In the case of SMSE v KL [2009] 4 HKLRD 125, Le Pichon JA said this in paragraph 17 of the judgment:-
7.Paragraph 59/2A/4 of Hong Kong Civil Procedure 2021 also refers to the threshold for granting leave to appeal:-
8.Counsel for Lam referred me to the case of Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791. The Court of Appeal stated this in the judgment:-
9.With such principles in mind, I proceed to consider the grounds raised by counsel for Tsui in the draft Grounds of Appeal. GROUND 1 - FAILURE TO READ THE FIRST STATEMENTS & SECOND STATEMENTS AS A WHOLE 10.Tsui’s 1st ground is that I failed to read the First Statements and the Second Statements as a whole when ascertaining their natural and ordinary meanings. 11.In paragraph 52 of the Judgment, I cited the case of Bawang International (Group) Holdings Ltd & Anor v Next Magazine Publishing Ltd, HCA 1109/2010, and outlined the relevant legal principles for interpreting an allegedly defamatory article. The need to read the article as a whole was clearly spelt out. 12.In paragraph 53 of the judgment, I emphasised the need to read the whole paragraph 1.6 of the 2013 AGM Minutes which contained the First Statements so as not to take the First Statements out of context. 13.When analysing, I broke the paragraph into 4 parts ie Parts 1, 2, 3 & 4 (See: paragraphs 54-61 of the Judgment). Likewise, I broke the Second Statements into 3 parts when reading ie Part A, B & C (See: paragraphs 114-117 of the Judgment). 14.Such an approach was for ease of reading and understanding. It does not mean that I was not reading them as a whole. GROUND 2 - FAILURE TO FIND PART 1 AND PART 4 AS REFERRTING TO TSUI 15.Tsui’s 2nd ground is that I failed to find Part 1 and Part 4 of paragraph 1.6 of the 2013 AGM Minutes as referring to him. This aspect was already covered in paragraphs 55 to 61 of the Judgment. 16.Part 1 and Part 4 made no mention of Tsui. 17.But Tsui’s name and the defamation case involving the IO and Tsui, ie DCCJ 3333/2011, were specifically mentioned in Part 3. So Part 3 was clearly referring to Tsui. 18.The fact that Tsui was mentioned in Part 3 does not mean that Part 1 and Part 4 were also referring to him. There is no logical basis for such a saying. 19.In paragraphs 65 to 67 of the Judgment, I already pointed out the fallacy of Tsui’s approach in reading paragraph 1.6 of the 2013 AGM Minutes. GROUND 3 - USING LDBM 87/2011 FOR JUSTIFYING PART 1 20.Tsui’s 3rd ground relates to paragraph 72(a) of the Judgment where I stated that Part 1 of paragraph 1.6 of the 2013 AGM Minutes could be justified by the legal action LDBM 87/2011. 21.LDBM 87/2011 was the IO’s claim against 34 owners of Tung Lo Court including Tsui for contribution of renovation fees. In paragraph 55 of the Judgment, I already stated that Part 1 did not refer to Tsui. If one assumes that Part 1 did refer to Tsui, it could still be justified by the factual background of LDBM 87/2011. I see no room for arguing the contrary. 22.One should also remember that the defence of justification requires a defendant to prove only “the substantial truth”. As long as Tsui was owing to the IO, whether the sum owed was for management fees or renovation contributions does not really matter. GROUND 4- USING CACV 27/2015 FOR JUSTIFYING PART 4 23.Tsui’s 4th ground relates to paragraphs 60 to 61 and 76 to 77 of the Judgment. 24.Tsui complains that I was requiring a reasonable reader to choose and pick which of the 4 owners in Part 3 was being referred to in the strong and critical wording in Part 4. This is a wrong interpretation of paragraphs 60 and 61 of the Judgment on the part of Tsui. 25.What I meant was that Part 4 did not refer to any specific person and the reader would not be sure the strong and critical wording was directed at whom. The burden of proof is on Tsui to prove that Part 4 specifically referred to him even assuming that it was defamatory. It is not sufficient for Tsui to just prove that Part 4 might be referring to him. 26.In paragraphs 76 and 77 of the Judgment, the finding was that Part 4 could still be justified by facts even if it carried a defamatory meaning. One of the justifications was Mr Justice Poon’s observation in paragraph 5 of the judgment in CACV 27/2015. 27.The judgment in CACV 27/2015 was handed down on 3 August 2015 and the 2013 AGM was held on 24 September 2013. As such, Tsui complains that I was using what was said in 2015 to justify a defamatory statement published in 2013 which is contrary to established legal principles. 28.In my view, Tsui has oversimplified the picture or has misinterpreted the chronology of events. It is true that the judgment of CACV 27/2015, which contained Mr Justice Poon’s comment, was handed down on 3 August 2015. But one should not forget that the case was an appeal hearing from the defamation case DCCJ 3333/2011. The defamation claim was brought by the IO in relation to 4 open letters published by Tsui on 11 March 2011, 24 March 2011, 28 March 2011 and 27 April 2011. In the same case, Tsui counterclaimed for 11 publications allegedly issued by the IO during 2010 and 2011. When Mr Justice Poon was commenting on the parties’ relationship in the judgment of CACV 27/2015, His Lordship should be referring to the relevant time around 2010 and 2011. Therefore, there was no issue that I was using what happened in 2015 to justify the First Statements published in 2013. Tsui is misconceived. GROUND 5 - LAM AS IO CHAIRMAN DID NOT HAVE DUTY TO REPORT LITIGATIONS AT 2013 AGM 29.Tsui’s 5th ground is that I was wrong in finding that Lam as Chairman of the IO had a duty to report about the ongoing litigations at the 2013 AGM. 30.The existence of such a duty was already explained by Mr Justice Lok in the case of Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 which I quoted in paragraph 94 of the Judgment. I also gave the reasons as to why there would be such a duty on the part of Lam as Chairman of the IO in paragraphs 95 and 96 of the Judgment. 31.Counsel for Tsui submits that the duty to report about the ongoing litigations involving the IO rests with the management committee pursuant to section 26A of the Building Management Ordinance (“BMO”). 32.In my view, the duty to report on the part of the management committee under section 26A of the BMO does not preclude Lam, as Chairman of the IO, from reporting and commenting on the same topic at the 2013 AGM. There is no substance in the 5th ground raised by Tsui. GROUND 6 - ERROR IN FINDING OF FAIR COMMENT IN RESPECT OF FIRST STATEMENTS 33.Tsui’s 6th ground relates to my acceptance of Lam’s defence of fair comment in paragraphs 79 to 88 of the Judgment. As I understand, Tsui complains that I accepted the defence even though LDBM 87/2011 was not specifically mentioned in the commenting words in Part 4. 34.In paragraph 85(a)-(i) of the Judgment, I set out the range of facts which supported the comment in Part 4. Lam already pointed out the “legal action” in Part 1 and “unnecessary litigations” in Part 4 and naming some of the litigations involving the IO in Part 3. As stated in paragraph 88 of the Judgment, Lam had already indicated the range of facts on which he commented. 35.Even though LDBM 87/2011 was not specifically identified in Part 4, it would not defeat the defence of fair comment. Tsui has failed to read Joseph v Spiller [2011] 1 AC 852 which I quoted in paragraph 88 of the Judgment. Tsui is mistaken in his belief that a commentator must set out each and every fact he is commenting. There is no such a requirement. GROUND 7 - LDBM 293/2011, LDBM 332/2010 & LDBM 10/2011 36.The factual backgrounds of LDBM 293/2011, LDBM 332/2010 and LDBM 10/2011 were already set out in paragraphs 14 to 24 of the Judgment. These were all litigations initiated by Tsui and/or other owners against the IO and/or the IO’s office bearers. 37.Tsui’s 7th ground is that these legal actions do not justify the comment in Part 4 that “there are a small group of owners who are frequently attempting to disturb the normal operations of this Building, caused the IO to face many unnecessary litigations, caused great increases of the IO’s expenses”. 38.Tsui has read paragraphs 77 and 85 of the Judgment out of context. In paragraph 77, I set out the range of facts which support the defence of justification for Part 4. In paragraph 85, I set out the range of facts which support Lam’s defence of fair comment. 39.In the aforesaid 2 paragraphs, I was not saying that LDBM 293/2011, LDBM 332/2010 and LDBM 10/2011 alone would justify and support the comment in Part 4. I also set out other additional facts. Taking them all together, the comment in Part 4 would be regarded as fair comment. 40.Tsui is ignoring other additional facts pointed out by me when reading paragraphs 77 and 85. GROUND 8 - FAILURE TO FIND MALICE WHICH WOULD DEFEAT DEFENCE OF FAIR COMMENT IN RESPECT OF FIRST STATEMENTS 41.Tsui’s 8th ground relates to paragraphs 89 to 93 of the Judgment where I concluded that Tsui failed to prove any malice on the part of Lam which would defeat the defence of fair comment in respect of the First Statements. Tsui is now saying that there was malice on the part of Lam because the defamation case DCCJ 3333/2011 was initiated by the IO and not by Tsui. 42.In paragraphs 43 to 49 of the Judgment, I stated the background of DCCJ 3333/2011 and the related appeal in CACV 27/2015. 43.In paragraphs 103 to 106 of the Judgment, I already explained why I did not accept that one could infer malice on the part of Lam based on DCCJ 3333/2011 when I was considering malice in the context of Lam’s defence of qualified privilege in respect of the First Statements. 44.Likewise, in paragraphs 141 to 145, I explained why I did not accept that one could infer malice on the part of Lam based on DCCJ 3333/2011 when I was considering malice in the context of Lam’s defence of qualified privilege in respect of the Second Statements. 45.My view remains the same. I do not accept Tsui’s argument that there was malice on the part of Lam, as Chairman of the IO, just because the IO initiated a defamation claim DCCJ 3333/2011 against Tsui. There is nothing to show that the matter was the sole decision of Lam. GROUND 9 - FINDING ON QUALIFIED PRIVILEGE IN RESPECT OF THE FIRST STATEMENTS 46.Tsui’s 9th ground relates to paragraphs 94 to 96 of the Judgment where I found that the defence of qualified privilege was available to Lam in relation to the First Statements. Tsui is now saying that I was wrong in holding that Lam as Chairman of the IO had the moral and social duty to make a comment and the owners and residents had a corresponding interest in receiving the comment at the 2013 AGM. 47.My finding was based on the case of Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 decided by Mr Justice Lok. Tsui has failed to show how the aforesaid case was wrongly decided or how I was wrong in following the ruling. GROUND 10 - OMITTING PARAGRAPH 14 OF THE AMENDED REPLY 48.Tsui’s 10th ground relates to paragraphs 89 to 93 of the Judgment where I concluded that Tsui could not establish malice so as to defeat Lam’s defence of fair comment in respect of the First Statements. As I understand it, Tsui is complaining that I omitted paragraph 14 of the Amended Reply when reaching my conclusion. (See: 73 of TB) 49.Tsui’s Amended Reply consisted of 21 pages with 37 paragraphs. It was unnecessary and counterproductive for me to set out each and every paragraph in the Judgment. A specific paragraph was not referred to does not mean that it was not considered. 50.In paragraphs 91 and 92 of the Judgment, I specifically mentioned paragraph 8(f) and (g) of the Amended Reply and referred to the facts outlined by me in paragraph 85 of the Judgment. 51.The gist of paragraph 14 of the Amended Reply is that malice on the part of Lam could be inferred from the fact that he described “DCCJ 3333/2011” as “LBDM 3333/2011” in the First Statements, thereby giving the false impression that the IO was claiming Tsui for arrears of managements fees or renovation contributions. 52.In paragraph 75 of the Judgment, I already stated that describing “DCCJ 3333/2011” as “LDBM 3333/2011’ was just a typographical error on the part of Lam. I do not see how such a mistake would give rise to an inference of malice. Tsui’s complaint is groundless. GROUND 11 - FAILURE TO CONSIDER PLAINTIFF’S PLEADED FACTS AND TESTIMONIES OF 7 WITNESSES 53.Tsui’s 11th ground is that I failed to consider the pleaded facts and 7 witnesses’ testimonies when I reached my conclusion that Lam succeeded in his defences of justification, fair comment and qualified privilege. 54.This is a lax accusation. The Statement of Claim consisted of 17 pages excluding the exhibits. The Amended Reply consisted of 21 pages. A total of 7 witnesses testified at the trial. Tsui testified and called 2 witnesses Wong Lo and Leung Yin Ying. Lam testified and called 3 witnesses Yeung Wai Lin, Kong Yiu Man, and Tse Ching Yum. The statements of these witnesses took up 137 pages of the Trial Bundles excluding the exhibits. It would be impossible for the trial judge to outline each and every fact relied on by a party or uttered by a witness. This is especially so when some parts of the witnesses’ evidence amounted to finger pointing. Not outlining each and every fact in the judgement does not mean that the trial judge had not taken into account the points raised by the parties and the witnesses. GROUND 12 - FAILURE TO FIND SECOND STATEMENTS AS CONTAINING IMPUTATION 3 55.Tsui’s 12th ground relates to my analysis of the Second Statements outlined in paragraphs 114 to 124 of the Judgment. Tsui’s complaint is that I did not accept the Second Statements as containing Imputation 3 alleged by Tsui. 56.This is another lax complaint by Tsui. In paragraph 119 of the Judgment, I already explained why I did not think the Second Statements contained Imputation 3. Of course, Tsui is at liberty to disagree with me. But just disagreement would not give rise to a sufficient ground of appeal. GROUND 13 - FAILURE TO CONSIDER FIRST 2 SENTENCES OF SECOND STATEMENTS 57.Tsui’s 13th ground is that I failed to consider the first 2 sentences when I was ascertaining the meaning of Part A of the Second Statements.
58.Tsui is saying that the IO’s defamation claim in DCCJ 3333/2011 started on 29 August 2011 and IO’s offer of apology as a term of settlement was tendered on 15 January 2014. As such, Tsui now complains that I was wrong in my conclusion that Part A of the Second Statements could be justified because the offer of apology was not tendered “at the beginning” of DCCJ 3333/2011. 59.Once again, Tsui has oversimplified the picture or has misinterpreted the chronology of events. Innocently or intentionally, Tsui has missed out the exact wording of “offer of apology and settlement” in Part A of the Second Statements. Tsui only focuses on the offer of apology on 15 January 2014 but has ignored the earliest offer of settlement on 27 July 2012 from the IO. 60.When considering whether Part A of the Second Statements could be justified, I already set out the chronology of the development of DCCJ 3333/2011. DCCJ 3333/2011 was initiated by the IO on 29 August 2011. The earliest offer letter for settlement from the IO’s solicitors to Tsui’s solicitors was dated 27 July 2012 (See: 460-461 of TB). In the said letter, the IO’s solicitors already indicated the IO’s willingness to negotiate for a settlement and put forward a proposal. 61.It is correct that the offer of settlement did not come within days or weeks from the start of the legal action but about 11 months later. Whether it can be still regarded as “at the beginning” of the legal action is open to different interpretations given that DCCJ 3333/2011 took more than 4 years from its start on 29 August 2011 to its conclusion on 24 December 2015 when the Court of Appeal handed down its decision on assessment of costs of appeal. Arguably, “at the beginning” might be interpreted as at the early stage of the legal proceeding. 62.As already stated in paragraph 115 of the Judgment, 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. 63.For the defence of justification to succeed, Lam is only required to prove the substantial truth of Part A. He does not need to prove the peripheral facts and a slight inaccuracy is allowed. The relevant legal principles were already set out in paragraph 69 of the Judgment. 64.In my view, the exact timing of the offer of apology and offer of settlement is not significant. Whether an offer of apology and an offer of settlement were put forward at the same time or at different times also does not matter. These are peripheral facts which Lam does not need to prove and some inaccuracy on these aspects is allowed. 65.As long as Lam could prove the IO offered settlement proposals and an apology before the conclusion of DCCJ 3333/2011 but Tsui did not accept, Lam had already made out his defence of justification in relation to Part A of the Second Statements by establishing the substantial truth. GROUND 14 - PARAGRAPH 126 OF JUDGMENT 66.Tsui’s 14th ground relates to paragraph 126 of the Judgment. The complaint is that I was wrong in my conclusion that Part A of the Second Statements could be justified. 67.I do not see how Tsui’s 14th ground is different from his 13th ground. 68.In any event, what I have stated hereinabove in relation to Tsui’s 13th ground has already provided an answer to Tsui’s 14th ground. There is no need for me to elaborate any further. GROUND 15 - PARAGRAPH 127 OF JUDGMENT 69.Tsui’s 15th ground is about paragraph 127 of the Judgment where I was considering the defence of justification in relation to Part B of the Second Statements:-
70.Tsui now says that I was wrong in my conclusion about the sequence of events. 71.In DCCJ 3333/2011, Deputy District Judge Mak found letters D1-D4 respectively dated 11 March 2011 (See: 528 of TB), 24 March 2011 (See: 529 of TB), 28 March 2011(See: 530 of TB) and 27 April 2011 (See: 549 of TB) to be defamatory and were not supported by facts. On appeal, the Court of Appeal found that D1, D2 and D4 were not directed to the plaintiff IO but were directed against the MC, the Chairman, The Secretary and the head of security. In paragraph 127 of the Judgment, I regarded the findings by Deputy District Judge Mak and the Court of Appeal as support for Part B ie that Tsui was maligning all the members of the MC and especially targeted at the Chairman and the Secretary of the IO. 72.Tsui is now saying that for the defence of justification to succeed in relation to Part B, the maligning by way of letters D1 dated 11 March 2011, D2 dated 24 March 2011 and D4 dated 27 April 2011 must be done by Tsui after the offer of apology by the IO on 15 January 2014. As the maligning was done before 15 January 2014, the defence of justification would not succeed. 73.One needs only to refer to the original Chinese wording of Part A and Part B, there is no specific mention that the maligning took place first or the offer of apology took place first. As such, Tsui’s allegation that the defence of justification would only succeed when Lam could prove the maligning took place after the offer of apology is groundless. 74.For the sake of argument, even assuming that Part A and Part B mentioned that the maligning was done after the offer of apology (which I do not accept), I regard this as a peripheral fact which does not add to the sting of the charge. Reference is made to paragraph 69 of the Judgment and paragraph 63 hereinabove. 75.For the defence of justification to succeed for Part B, Lam only needed to prove the substantial truth. As long as Lam could prove that there was maligning by Tsui by way of letters D1 dated 11 March 2011, D2 dated 24 March 2011 and D4 dated 27 April 2011 and an offer of apology was made by the IO on 15 January 2014 which Tsui did not accept, Lam had already established the substantial truth. GROUND 16 - PARAGRAPHS 128-135 OF JUDGMENT 76.Tsui’s 16th ground is about paragraphs 128 to 135 of the Judgment. In the said paragraphs, I made a finding that Lam had the defence of fair comment in relation to Part C of the Second Statements:-
77.While I understand that Tsui is now complaining that I erred in law in finding that the defence of fair comment was available to Lam, Tsui has failed to point out why the finding was wrong. 78.I believe what I stated in paragraphs 128 to 135 of the Judgment is clear enough. There is no need to elaborate further. GROUND 17 - GENERAL ATTACK ON FINDINGS ON FAIR COMMENT AND MALICE 79.Tsui’s 17th ground is that I was wrong in my findings on the defence of fair comment and malice in relation to Part C of the Second Statements. 80.Once again, Tsui is just saying I was wrong without pinpointing the reason. 81.My finding in relation to the defence of fair comment was already stated in paragraphs 128 to 135 of the Judgment and my finding in relation to the issue of malice was already stated in paragraphs 136 to 137 of the Judgment. There is no need to elaborate further. GROUND 18 - FINDING OF QUALIFIED PRIVILEGE 82.Tsui’s 18th ground is a complaint that I was wrong in my finding that the defence of qualified privilege was available to Lam in relation to Part C of the Second Statements. The finding is in paragraphs 138 to 139 of the Judgment. 83.Tsui’s 18th ground is basically the same as his 9th ground. What I have stated in paragraphs 46 to 47 hereinabove equally applies here. There is no need to elaborate further. GROUND 19 - IGNORING OR OMITTING PARAGRAPH 33 OF AMENDED REPLY 84.Tsui’s 19th ground is that I ignored or omitted paragraph 33 of the Amended Reply:-
85.As can be seen, the gist of paragraph 33 of the Amended Reply is the allegation of malice on the part of Lam. 86.The issue of malice was sufficiently considered in the Judgment:-
87.Even though paragraph 33 of the Amended Reply was not specifically referred to in the Judgment, it does not mean that Tsui’s points had not been considered. As said before, the Amended Reply consisted of 21 pages and 37 paragraphs, it would not be necessary or feasible to mention each and every paragraph. GROUND 20 - REPUBLICATON OF THE FIRST STATEMENTS 88.Tsui’s 20th ground is a challenge on my finding that First Statements did not amount to a republication of the Serial 1 False Statements and Serial 2 False Statements. 89.This part had already been covered in paragraphs 101 to 106 and 154 to 159 of the Judgment. 90.Tsui’s 20th ground is just a repetition of a point raised and rejected at trial. GROUND 21 - QUANTUM OF DAMAGES 91.Tsui’s 21st ground is a challenge on the quantum of damages. Tsui is now saying that the amount of damages should be reassessed including aggravated damages and exemplary damages. 92.As stated in paragraph 163 of the Judgment, the issue of the amount of damages to be awarded to Tsui simply did not arise in view of my ruling on liability. The views expressed by me on quantum were a courteous response to counsel’s thorough research and arguments on the issue. My views can be found in paragraphs 172 to 179 of the Judgment. 93.When giving my view on the range of general damages of HK$100,000 for the First Statements and HK$100,000 for the Second Statements, I had considered similar cases as referred to in paragraphs 173 to 174 of the Judgment. 94.As to aggravated damages and exemplary damages, I had already stated my views in paragraphs 177 to 179 of the Judgment. 95.While Tsui has expressed disagreement to my views on quantum of damages, he has failed to pinpoint which parts were wrong so as to justify a reassessment. 96.Counsel for Tsui quoted paragraph 9.4 of Gatley on Libel and Slander (12th edition):-
97.However, there was no mention by Tsui in his own evidence as to how his integrity, honour, courage, loyalty and achievement were affected by the First Statements and Second Statements. In his witness statement, Tsui only mentioned that he once had an argument with his mother over the issue of honesty, which arose from some open letters alleging that Tsui was owing to the IO. But the alleged argument was not about the First Statements and Second Statements. GROUND 22 - PARAGRAPH 171 OF JUDGMENT 98.Tsui’s 22nd ground is about my finding on the extent of the publication in paragraph 171 of the Judgment. 99.In the aforesaid paragraph, I expressed the view that even assuming the 2013 AGM Minutes and the 2015 AGM Minutes were posted up at all the 3 spots alleged by Tsui, only those owners or residents of Tung Lo Court who were concerned with the daily running of the building and the running of the IO would be interested in reading. I did not believe people unrelated to Tung Lo Court would bother to read the minutes. 100.While Tsui has the freedom to disagree with me, disagreement alone does not give rise to a sufficient ground of appeal. GROUND 23 - EVIDENCE OF YEUNG WAI LIN 101.Tsui’s 23rd ground relates to paragraph 169 of the Judgment. In the said paragraph, I relied on the evidence of Yeung Wai Lin that there were about 32 people attending the 2013 AGM and about 27 people attending the 2015 AGM. 102.Tsui now says that I was wrong in relying on Yeung’s evidence because what she said was inconsistent with the 2013 AGM Minutes and the 2015 AGM Minutes. In my view, Tsui has failed to understand the evidence of Yeung properly. There is no inconsistency as alleged. 103.In the witness statement of Yeung, she stated that there were 27 owners attending the 2013 AGM in person and another 91 owners appointed other co-owners to attend on their behalf. There were 5 guests attending. So the total number of people attending in person was 32. In relation to the 2015 AGM, Yeung said 19 owners attended in person and another 153 owners appointed other co-owners to attend on their behalf. There were 8 guests attending. So the total number of people attending in person was 27. (See: 157 – 162 of TB) 104.In the 2013 AGM Minutes, it was recorded in Chinese that “業主及業主委任代表出席人數合共118人，出席率為30.18%”. The number referred to owners attending in person plus those owners appointing proxies. It does not mean 118 owners attending the 2013 AGM in person. (See: 305 of TB) 105.In the 2015 AGM Minutes, it was recorded in Chinese that “業主及業主委任代表出席人數合共172人，出席率為43.22%”. The number referred to owners attending in person plus those owners appointing proxies. It does not mean 172 owners attending the 2013 AGM in person. (See: 301 of TB) 106.Therefore, there is no inconsistency between Yeung’s evidence and the 2013 AGM Minutes and 2015 AGM Minutes. Tsui’s 23rd ground arises simply because he has failed to understand the evidence properly. GROUND 24 - POSTING OF 2013 AGM MINUTES & 2015 AGM MINUTES 107.Tsui’s 24th ground relates to paragraphs 167, 168 and 170 of the Judgment. In the said paragraphs, I stated that I accepted Kong Yiu Man’s and Tse Ching Yum’s testimonies that the 2013 AGM Minutes and the 2015 AGM Minutes were posted up on the notice boards of Block A and Block B of Tung Lo Court only. 108.Tsui now says that the photos of the 2013 AGM Minutes showed a background which supported his version that 2013 AGM Minutes and the 2015 AGM Minutes were also posted up on the walls of the lift lobbies and inside the 4 lifts of Block A and Block B of Tung Lo Court. (See: 309-312 of TB) 109.Tsui has taken the photos out of their context. The photos were produced by Tsui as an exhibit to his witness statement dated 21 March 2018. They were described as copy minutes. In Tsui’s witness statement and supplemental statement, he never explained photos of the 2013 AGM Minutes were taken by whom and where they were taken and on what date. 110.In examination-in-chief, Tsui’s counsel tried to ask him about the location where some of the photos were taken. (See: 229 and 309 of TB) This was objected by counsel for Lam. I also queried Tsui’s counsel as to whether it would be appropriate to ask questions in chief which would go beyond Tsui’s witness statement and supplemental witness statement. After consideration, Tsui’s counsel withdrew the questions. 111.Therefore, there was no evidence in front of the court about the location where the photos were taken. Now, Tsui is inviting the court to do guesswork by looking at the background of the photos and conclude that the 2013 AGM Minutes and the 2015 AGM Minutes were posted on the walls of the lift lobbies and inside the lifts. This is totally inappropriate and unwarranted. CONCLUSION 112.Tsui has failed to convince me that he has a reasonable prospect of success if the case goes to appeal. 113.In the summons taken out on 23 December 2021, Tsui has also requested that there be a stay of execution of the Judgment. On the issue of stay of execution, counsel for Lam drew my attention to Asparouh Ianev Dimitrov v Dominic Tak Min Lau & Anor, CACV 568/2020 where the Court of Appeal gave the following view:-
114.In view of my analysis hereinabove, the summons must be dismissed. The grounds raised by Tsui do not have a reasonable prospect of success and there is no reason to deny Lam, as the winning party, the fruits of litigation. 115.Costs should follow the event. I make a costs order nisi that Tsui do pay Lam the costs of the summons taken out on 23 December 2021, to be taxed if not agreed, with certificate for counsel. The costs order nisi shall become absolute in the absence of application to vary within 14 days. 116.I note that counsel for Lam has made a request that the costs of the summons be summarily assessed and to be paid by Tsui forthwith. In this connection, a Statement of Costs has been submitted for my consideration. 117.When I handed down the Judgment on 6 December 2021, I made an order nisi that the costs of this action (including all costs reserved) to be paid by Tsui to Lam, with certificate for counsel. Inadvertently, I missed the words “to be taxed if not agreed” in my order even though taxation was on my mind in the event that the parties could not agree on the amount of costs. 118.But my inadvertence should not prejudice the parties’ right of taxation of costs. Order 62, rule 11(1) of the Rules of the District Court provides:
119.In view of the costs order made in the Judgment, I would also defer the taxation of costs of this summons to a master so as to ensure consistency in the taxation approach, in the event that the parties cannot come to an agreement on the amount of costs.
Ms Kitty Tsang, instructed by Paul Kwong & Co, for the plaintiff Mr Henry Cheng, instructed by CW Chan & Co, for the defendant | |||||||||||||
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