The Incorporated Owners of on Ning Garden v. Wong Mo Chi
Read the full judgment text of DCCJ 3473/2022 on BabelCite. This District Court judgment was delivered on 11 September 2023.
1. This is the plaintiff’s application by way of summons taken out on 16 March 2023 (“Present Summons”) for judgment in default of defence under Order 19 rule 7 of the Rules of the District Court, Cap 336H (“RDC”).
Cites 6 cases
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DCCJ 3473/2022 [2023] HKDC 1276 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3473 OF 2022 --------------------------------
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----------------------- DECISION ----------------------- INTRODUCTION 1.This is the plaintiff’s application by way of summons taken out on 16 March 2023 (“Present Summons”) for judgment in default of defence under Order 19 rule 7 of the Rules of the District Court, Cap 336H (“RDC”). BACKGROUND 2.The plaintiff (“IO”) registered as the Incorporated Owners of On Ning Garden (“Estate”) under section 8 of the Building Management Ordinance, Cap 344 (“BMO”) in 1996. The defendant (“Wong”) became one of the 2 registered legal owners of one of the units of the Estate in 2006. 3.In the present action, IO complains Wong to have published and caused to publish statements, which IO considers to be defamatory of it, on multiple occasions since 2018. Premised on the cause of action of libel, IO claims for damages, an injunction, a written apology (collectively, “Relief”). 4.The claim for a written apology was abandoned as confirmed by Mr. Sin, Counsel for IO, at the hearing of the Present Summons on 15 June 2023 (“Summons Hearing”). DEFAULT OF DEFENCE 5.IO issued the Writ of Summons to commence the present action on 6 September 2022. Wong filed Acknowledgement of Service of Writ of Summons giving notice of intention to defend on 23 September 2022. 6.Time for IO to file and serve a statement of claim was extended and further extended by two court orders. On 26 January 2023, IO filed the Statement of Claim (“SOC”) and later served it on Wong. 7.Under Order 18 rule 2(1) RDC, Wong had 28 days after the SOC was served on him to serve a defence on IO, i.e. 28 days after 31 January 2023. Notwithstanding the expiry of the time limit for serving a defence on 28 February 2023, no defence was filed by Wong. 8.On 28 February 2023, IO filed the Notice of Intention to Enter Judgment and then served a copy of the same on Wong pursuant to Order 19 rule 8A RDC (“8A Notice”). On 16 March 2023, IO took out the Present Summons. 9.According to the two affirmations of service filed for IO respectively on 18 May 2023 and 13 June 2023, the Writ of Summons, the SOC, the 8A Notice, the Present Summons and the relevant papers had been properly and timely served on Wong in accordance with the RDC. 10.In the circumstances, I am satisfied that proper service of all the requisite legal documents have been timely effected on Wong in accordance with the RDC. No defence having been filed, the default judgment procedure under Order 19 RDC is available to IO. DEFENDANT’S OPPOSITION 11.On 5 May 2023, Wong filed an affirmation which expressed his wish to stay the present proceedings on the ground that IO, being an incorporated owners, had no locus standi to sue for defamation, and accordingly, the commencement of the present action was beyond the power of an incorporated owners as provided by s 18(2)(g) of the BMO (“Locus Argument”). 12.At the Summons hearing, Wong did not make any application for serving a Defence. Nor did he indicate any intention to do so. Neither draft defence nor affirmation with facts giving rise to a defence was produced. Instead, he reiterated the Locus Argument being his sole ground of opposition to the Present Summons. He argued that as IO’s cause of action of defamation was not related to the common parts of the Estate nor in respect of a matter in which the co-owners of the Estate have a common interest, IO was not entitled to prosecute the present claim. 13.Indeed, a similar argument made by a defendant was rejected by the Court of Appeal in The Incorporated Owners of Tung Lo Court v Tsui Wai Yip [2015] 4 HKLRD 397. In that case, the Court of Appeal decided that whether an incorporated owners has the locus standi to sue for defamation is a question of law. An incorporated owners can seek support from common law for locus to commence a defamation action even if sections 16 and 18 BMO do not provide a power to sue because of the limited applicability of those two sections which do not cover the cause of action of defamation that is not related to the common parts or a matter in which the owners have a common legal interest. 14.At common law, an incorporated owners, being a corporation, has a reputation which the law protects and can therefore sue for defamation. The primary function of an incorporated owners is to perform its duties and to exercise its functions under the BMO and the deed of mutual covenants concerning the building. When a defamatory statement is made against the incorporated owners, having the effect of discrediting its integrity as an incorporated owners or its ability in discharging its duties and functions as an incorporated owners, such as to lead people of ordinary sense to the opinion that it conducts its affairs in a way which is inefficient, improper or even dishonest. It has the right to sue to protect its reputation. 15.Applying these legal principles to the present case, Wong’s Locus Argument is bound to fail. Suffice it to say for the present purpose that even if taking Wong’s argument to the highest that sections 16 and 18 BMO do not empower IO to commence the present proceedings because of the limited applicability of those two sections, IO is still empowered to sue for defamation under the common law. 16.On the pleaded facts of the SOC which I will elaborate further below, the common law provides necessary locus standi to IO to sue Wong for defamation in the present proceedings. Wong has no legal basis to oppose the Present Summons or to apply for stay of the present proceedings. Nor has he provided a valid defence to the present claim. STATEMENT OF CLAIM 17.IO’s pleaded case in the SOC can be summarized as follows. 18.The Estate is situated at 10 Sheung Ning Road, Tseung Kwan O. It is a residential complex completed in 1991. It comprises 2,300 residential units, housing more than 2,500 residents. 19.IO, being the registered incorporated owners of the Estate, performs the duties and exercises the functions as provided by both the BMO and the Deed of Mutual Covenant (“DMC”). It has its own reputation and corporate reputation, based on its credible integrity and ability to discharge its duties and functions as an incorporated owners, that the law protects. It has a right to sue for statements defamatory of IO or directed against all the co-owners. DEFAMATORY WORDS 20.From 6 April 2018 to 17 July 2022, Wong published or caused to be published words defamatory of IO (collectively, “Published Words”), (which are set out in the Schedule annexed to this Decision.) The English translations of the Published Words were pleaded in the SOC. The pleaded meanings of the Published Words are also set out in the SOC which are briefly summarized as follows: -
21.The Published Words have the natural and ordinary meanings, the direct, implicit and/or the inferred meanings, in gist, that:-
PUBLICATION 22.The publications of the Published Words were by both physical and digital means (collectively, “Various Publications”):-
23.Since 6 April 2018, Wong had, on multiple occasions, set up booths outside a kindergarten and a shopping arcade at 10 Sheung Ning Road (collectively, “Publication Spots”) for the Physical Publication to the residents of the Estate and thousands of non-resident visitors who frequented the shops, schools, restaurants which located at the Publication Spots. 24.In parallel, Wong also created and managed the Facebook Page, which was accessible by the general public without restriction. Wong had, on multiple occasions, uploaded the digital forms of some of the Published Words to the Facebook Page, or, caused to have some written narratives of the Published Words available for access in the Facebook Page. 25.The Facebook has many millions of users around the world. The Facebook Page could be readily read without having first downloaded it from the web. The Facebook Page had more than 100 subscribers. 26.The publication of the Published Words can be summarized as follows:-
27.As a result of the publications of the Published Words, there were substantial but unquantifiable third parties other than the members of the MC who received and read the Published Words. REFERENCE 28.Some of the Published Words expressly name IO by its name in Chinese as “業主立案法團” (trans, “incorporated owners”) or “法團” (trans, “incorporation”) and are absolutely clear that they refer to IO. 29.For those Published Words which refer to “管理委員會” (trans, “management committee”) or “委員會” (trans, “committee”) refer to and can be understood to refer to the MC. Given the powers and duties of IO are exercised and performed by the MC under section 29 BMO, the reference to MC refers to and can be understood to refer to IO. 30.Further, the fact that the Published Words refer to IO can also be inferred by way of a legal innuendo under Order 82 rule 3(1) RDC. Persons as residents and owners of the Estate, visitors who frequented the Publication Spots, internet users who viewed the Facebook Page, the persons who dealt with IO were aware that the Estate was managed by IO and IO exercised and discharged its duties through MC pursuant to the DMC and BMO. 31.As a consequence of the publications of the Published Words, both IO’s own reputation and its corporate reputation representing all co-owners of the Estate have been seriously damaged. The publications cast aspersions on IO’s integrity and ability to discharge its duties as incorporated owners properly and efficiently. 32.Further or alternatively, as a consequence of the libel by the publications, IO is lowered in the estimation of right-thinking members of society generally and is subject to hatred, contempt or ridicule. 33.On such basis, IO asks for the Reliefs. LEGAL PRINCIPLES: DEFAULT JUDGMENT 34.In default judgment application, the court looks to the pleaded facts alone and no other evidence will be permitted. Judgment will be given on the plaintiff’s claim provided that the pleaded facts give rise to the relief sought: Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, §§26-27. 35.The basis upon which default judgment can be obtained, in circumstances where no defence is filed, is that of implied admission. The court will assume that the Statement of Claim has been impliedly admitted: Hong Kong Civil Procedure 2023 Vol 1 § 19/2/1. 36.Default judgment procedure is applicable to libel action: Koo Ming Kown v The Baptist Convention of Hong Kong operating as Pui Ching Primary School HCA 731/2017, unreported, 30 October 2017. LEGAL PRINCIPLES: DEFAMATION 37.In order to succeed in a claim for defamation, a claimant has to show that defamatory matters with reference to the claimant have been published by a defendant: Bawang International (Group) Holding Limited and another v Next Magazine Publishing Limited HCA 1109/2010, unreported, 23 May 2016. DISCUSSION 38.In the present proceedings, Wong has unequivocally decided not to serve a Defence to defend the present claim. In the circumstances, IO is entitled to apply for default judgment on an undefended claim basing on the SOC. Wong is regarded to have impliedly admitted the facts and matters pleaded in the SOC. 39.Having considered the SOC, I am satisfied that IO has pleaded sufficient facts to prove its claim. Factual causation is established. Wong has not filed any defence to dispute the facts or the components of the tort of defamation as contained in the SOC. DEFAMATORY WORDS 40.I accept the Published Words, in their actual words used, in their natural and ordinary meanings, by direct assertions or by inferential or implied meaning, meant and were understood to mean that as those elaborated in the SOC which I have briefly summarized as above. Particulars as required under Order 82 rule 3(1) RDC were also sufficiently pleaded. 41.The Published Words are plainly defamatory as pleaded as they attacked IO’s integrity, impartiality, honesty, competency and efficiency. They have the effect of lowering IO’s estimation in the eyes of right-thinking members of society and adversely affected its reputation. 42.The Published Words tend to lead reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of world affairs to the opinion that IO conducted its affairs in a way which is incompetent, inefficient, improper, unlawful and dishonest: Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328. 43.They discredited IO to have mismanaged its finance, unlawfully used the funds of the Estate, incurred unjustified expenses, misjudged the needs for engineering works, over-charged management fees, failed its duty of disclosure, conducted its business contrary to the prescribed procedures, engaged in bid-rigging activities, manipulated meetings and voting and improper maintenance of the common parts. PUBLICATION 44.The SOC has identified each and every publication of the Published Words, including modes of publications, in physical form and/or digital form, with the actual means of publication as leaflets, notices, posters, banners, Facebook specified therein. 45.The classes of recipients of such publications as residents, co-owners of the Estate, visitors, Facebook viewers were set out. The location of the Publication Spots and the access of the Facebook Page was described. 46.The scope of recipients of the Published Words were unarguably substantial. The classes of the recipients were various which include not only members of MC and co-owners of the Estate. REFERENCE 47.I am also satisfied that the Published Words referred to IO by expressly naming IO or by being understood as referring to IO basing on the pleaded facts that IO exercised and performed its duties and powers of managing the Estate under the BMO and the DMC through MC pursuant to section 29 BMO. 48.Such facts also formed part of the general knowledge of some of the readers, as co-owners, occupiers of the Estate, passers-by who frequented the Publication Spots, the Facebook users who accessed to the Facebook and other person who dealt with the IO, to the effect that Wong was reasonably understood to refer MC to IO as well as to refer the one who managed the common parts or common affairs of the Estate to IO. Further, such facts also formed part of the extrinsic facts possessed by those recipients of the Published Words which establish an indirect reference of IO. 49.In the premises, the pleaded facts satisfy the requirements of establishing cause of action of libel which are logical and remained unchallenged. INJUNCTION 50.There has been a long history of Wong publishing defamatory words referring to IO from time to time since 2018. He had the practice of setting up booth, posting banners and posters, distributing notices and uploading materials into the internet for repeated publications of the Published Words. The defamatory words have been increasingly widened in scope and serious in nature. Some of them were repetitive in contents. Some publications took only about 2 weeks apart. 51.In view of the fact that the publication has continued for a number of years with no sign of cessation, there is solid basis to suggest that repetition of the Published Words is anticipated. I am convinced that granting of an injunction is justified to restrain Wong from republishing the Published Words as set out in the Plaintiff’s Revised Proposed Directions dated 15 June 2023 save that the words being extracts of the statutory provisions of the BMO should not be included. CONCLUSION 52.By reason of matters set out above, I am satisfied that IO’s pleaded case in libel is made out. The constituent parts of the torts are properly set out and the essential facts in support have been sufficiently pleaded. 53.In default of defence, IO has proved its case that Wong had published, and/or caused to be published the Published Words which were defamatory of IO and/ or with reference to IO and their pleaded meanings, in effect disparaging IO’s reputation. 54.Taking into account of the seriousness of the defamation, of the extent of the publication, of the absence of apology and of the real prospect that Wong will republish the Published Words, IO is entitled to an injunction restraining Wong from publishing the defamatory words as well as to claim for damages to be assessed. ORDER 55.Having considered all the relevant documents before me and of the submissions of the parties, I am satisfied that judgment should be entered against Wong. 56.I make an order that:-
COSTS 57.I make a costs order nisi that Wong do pay IO costs of this action on liability including all costs reserved, to be taxed if not agreed, with certificate for counsel. This costs order nisi shall become absolute in the absence of application to vary by summons within 14 days. 58.I thank Counsel for his assistance. 59.For the benefit of Wong who acts in person, I allowed the Summons Hearing to be conducted in Chinese. Given the Pleadings and the legal documents submitted by IO in this case are in English and so are the counsel’s submissions, I chose to hand down this Decision in English. Court interpreter’s assistance in perusing this Decision may be arranged, if requested by Wong.
Mr Oscar Sin, instructed by Huen & Partners, for the plaintiff The defendant appeared in person SCHEDULE
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Cases cited in this judgment
Further hearings and rulings under DCCJ 3473/2022