Pang Siu Wing Alias Pang Wing v. Chungshan Commercial Association, Hong Kong
Read the full judgment text of CACV 286/2021 on BabelCite. This Court of Appeal judgment was delivered on 12 January 2024.
1. On 4 May 2021, Lok J handed down his judgment (“ Judgment ”) in favour of the plaintiff who claimed against the defendant for wrongful expulsion as a member of the defendant and in libel for the notices published by the defendant in newspapers relating to his expulsion. The plaintiff was accused of having contravened Article 7 of the Articles of Association (“ AA ”) [1] in that he had “wilfully [committed] … an act of gross misconduct likely to be injurious to the Association” by dishonestly
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CACV 286/2021, [2024] HKCA 49 On appeal from [2021] HKCFI 1250 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 286 OF 2021 (ON APPEAL FROM HCA NO 820 OF 2013) ________________________
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________________ J U D G M E N T ________________ Hon Kwan VP (giving the Judgment of the Court): 1.On 4 May 2021, Lok J handed down his judgment (“Judgment”) in favour of the plaintiff who claimed against the defendant for wrongful expulsion as a member of the defendant and in libel for the notices published by the defendant in newspapers relating to his expulsion. The plaintiff was accused of having contravened Article 7 of the Articles of Association (“AA”)[1] in that he had “wilfully [committed] … an act of gross misconduct likely to be injurious to the Association” by dishonestly stating in his membership registration form (“2nd Registration Form”) his native place was under “Section 3” in order to gain an advantage in the directors’ election. 2.The judge held that the expulsion of the plaintiff was wrongful and granted a declaration that the resolution of the board of directors on 29 January 2013 to expel him (“Expulsion Resolution”) was invalid. He also granted general damages in the libel claim in the sum of $400,000. 3.The defendant appealed against the Judgment on the wrongful expulsion claim and the libel claim. Background 4.We gratefully adopt the background matters set out comprehensively in the Judgment and the terms and expressions used by the judge. Where appropriate, they will be supplemented by other relevant matters not in dispute. (i) The parties, the organisation of the defendant and verification of membership 5.The defendant is a non-profit making clansman association established in 1911 and incorporated as a company limited by guarantee in 1967. It was formed mainly for promoting the welfare of Chungshan (Zhongshan in pinyin) natives residing in Hong Kong. There are about 1,800 members and for each term (usually of two years) it has no more than 100 elected directors (會董) who would elect 23 executive directors (常務會董) among themselves. 6.Members of the defendant are classified into “9 Sections” (九區), which were supposed to be geographical sections or demarcations within the county of Chungshan. It was a major point in dispute at the trial how the 9 Sections were delineated and what places or villages inside the Chungshan County fall within each Section. The AA do not define the 9 Sections. The demarcation of the 9 Sections was based on a map (“the Map”) contained in the special publication to commemorate the 64th anniversary of the defendant in 1975. The 9 Sections were demarcated in the 10th year of the Republic under the Nationalist Government (ie 1921)[2]. There was different demarcation of districts in Zhongshan[3] after the establishment of the People’s Republic in 1949 and the creation of new towns and villages. According to the defendant’s witness Mr Choi Yuet Shan (蔡越山) (“Mr Choi”), the subsequent demarcation and re-categorisation of the places in Zhongshan by the Mainland Government after 1949 is irrelevant for the purpose of how members are classified into the 9 Sections[4]. 7.The classification of a member in a particular Section is relevant to the election of directors, as Article 38 of the AA provides that the number of persons elected to the board of directors, which shall not be more than 100, shall be apportioned in accordance with the number of members from each Section. A member is only eligible to be elected as director of the Section to which he belongs, and to vote for directors by picking from the membership list of that Section. 8.The plaintiff is a successful businessman born in Hong Kong and a Chungshan native. He became a member of the defendant since around 1994 until he was expelled on 29 January 2013. He first became a director for the 17th Term (2002-2007) and the secretary general. The 17th Term election was aborted due to disputes, which only ended after litigation. The 17th Term directors were appointed without Sectional election and election only resumed in 2007 for the 18th Term, in which the plaintiff was not elected. The plaintiff was elected as director for Section 3 of the 19th Term (2009-2011) and the 20th Term (2011-2013). He was also an executive director for the 20th Term. Accordingly, when he was expelled, he lost also his office as director and executive director of the defendant. 9.When the plaintiff joined the defendant in around 1994, his introducing member was Mr Miu Kai Lum (繆啟霖) (“Mr Miu”). Mr Miu was a member in Section 1. He provided the plaintiff with a membership form (“1st Registration Form”) and the plaintiff filled in his personal data. In the box for “藉貫” (native place), the plaintiff filled in “觀欄” (Guanlan). At that time, he was not shown any document or map identifying the Sections within the Chungshan County, nor was he even aware of the “9 Sections” classification. The “Section Number: 1” in the 1st Registration Form was not filled in by the plaintiff. The plaintiff believed that he was classified by Mr Miu or the defendant into the same Section as that of Mr Miu. 10.In 1999, there was a re-registration of members and a re-election of directors due to complaints of vote-rigging. A re-election committee (“Election Committee”) was formed. The Election Committee conducted a re-registration exercise in 2000 for all members (“2000 Registration Exercise”). Each member was required to fill up a new registration form designed by the Election Committee. Respective committee members were responsible for handling the re-registration of members for a designated Section. 11.For Section 3, the responsible committee members were Mr Li Chuen Hoi (李銓開) (“Mr CH Li”) and Mr Ho Hung Ji (何洪枝) (“Mr HJ Ho”). They provided the plaintiff with a table with the title “中山縣九區鄉村一覧表” (A broad table of the 9 Sections within the Chungshan County) (“the Table”), which had been adopted by the defendant for the purpose of election of the directors. The plaintiff completed the new form (i.e. the 2nd Registration Form). In the box for “祖籍” (ancestral origin place), he put down “三區東昇鎮觀欄鄉” (Section 3 Dongsheng Town Guanlan Village). The names “東昇” (Dongsheng) and “觀欄” (Guanlan) did not appear under any Section in the Table, but “坦背” (Tanbei) was classified under Section 3. The plaintiff explained he had completed the 2nd Registration Form as aforesaid as he understood that Guanlan Village was designated by the Mainland Government as part of Tanbei[5] and Tanbei was subsumed under Dongsheng Town. 12.The 2000 Registration Exercise was conducted and verified internally by members of the Election Committee. Further, the defendant engaged certified public accountants, Messrs M B Lee & Co (“LMB”), to supervise and audit the entire process. An official list of members of the defendant was published. Pursuant to the new registration under the 2nd Registration Form, the defendant approved, adopted and verified the membership of the plaintiff and issued to him a new membership card. 13.There were further election-related disputes in the defendant. In or about 2006, the defendant through Horwath Corporate Advisory Services Ltd conducted a membership verification exercise pursuant to a court order. After a full review of all membership documentations and information, the plaintiff’s membership was again verified without any issue and his name appeared in the finalized membership list published by the defendant. (ii) The 1st accusation 14.At the 8th meeting of the board of directors of the 19th Term on 8 June 2010, two executive directors, Mr Lam Kit Sing (林潔聲) (“Mr KS Lam”) and Mr Li Tin Kuen (李天權) (“Mr TK Li”), accused the plaintiff of breaching the AA in switching from Section 1 to Section 3 arbitrarily and unilaterally and questioned his integrity. It was resolved that a motion for suspension of the plaintiff’s directorship would be tabled for discussion at the next meeting of the board. 15.At the 9th Meeting of the board of the 19th Term held on 8 July 2010, the plaintiff gave his explanation about switching from Section 1 in the 1st Registration Form to Section 3 in the 2nd Registration Form. Despite his explanation, Mr KS Lam and Mr TK Li moved for a motion to expel the plaintiff as a member to be tabled at the next meeting of the board and then onwards to a members’ meeting. No resolution was passed at this meeting. 16.Eventually, a motion to suspend the plaintiff’s directorship was tabled at the 10th board meeting of the 19th Term held on 26 July 2010. It was recorded in the minutes of that meeting:
17.The plaintiff issued a letter to the defendant on 9 August 2010 to set out his explanation. Thereafter, no further investigation was undertaken by the defendant until the 2nd accusation was made in late 2012 and the plaintiff continued to be recognized as a member and served as a director until he was expelled in 2013. (iii) The 2nd accusation 18.In 2012, the plaintiff was interviewed by Zhongshan Daily (中山日報), which was a publication in the Mainland. The interview was published in an article (“the Mainland Article”) which contained the following:
19.It would appear from the above that notwithstanding the “祖籍” (ancestral origin place) of the plaintiff was stated as “沙溪鎮聖獅村” (Shaxi Town Shengshi Village), the plaintiff maintained that his native place (家鄉) was Guanlan Village Tanbei Town. According to the Mainland Article, Guanlan Village was where his father grew up until moving to Hong Kong in 1952, he had visited his paternal uncle in that village in 1964 and 1974, he donated money to the Guanlan primary school in 1990, he set up the Hong Kong Zhongshan Tanbei Clansmen Association with fellow clansmen in 1992/1993, and this association built an office building in Dongsheng Town in 2005 and used the rentals received for the charity works of the native place. 20.It is not in dispute that Shengshi Village was part of Shaxi and Shaxi was put under Section 2 for classifying the members of the defendant. 21.In 2012, Mr KS Lam had become the defendant’s chairman of the 20th Term. On 18 December 2012, in a notice for the 17th board meeting of the 20th Term, it was stated that the defendant had received a complaint letter accusing the plaintiff of “inappropriate declaration of Section; seriously questionable integrity; breach of Article 7”. The notice called for the board to discuss whether the plaintiff should be dealt with under Article 7. 22.At the 17th meeting of the Board of the 20th Term held on 27 December 2012:
23.On 29 January 2013, the 18th meeting of the board was held. The plaintiff reiterated his explanations as stated above and the views expressed by Mr Chung, Mr SL Ho and Mr Wong at the board meeting on 26 July 2010. He further stated that he had checked the Table again and that both “聖獅” (Shengshi) and “觀欄” (Guanlan) were not mentioned in the Table but “坦背” (Tanbei) was mentioned and was classified under Section 3. The plaintiff stressed that all along, he put down Guanlan as his native place. He referred to a booklet issued in 1996 by the Zhongshan City Overseas Chinese Bureau (“中山市僑務局”) in support and stated that he had used the address “坦背鎮觀欄” (Tanbei Town Guanlan) in correspondence. He queried how his alleged conduct was injurious to the defendant. 24.Mr KS Lam repeated the accusations. He stated that both the 1st and 2nd Registration Forms contained the plaintiff’s signatures. He said that the plaintiff’s statement to Zhongshan Daily that he was from “聖獅” (Shengshi) was inconsistent with the information the plaintiff provided in the 1st and 2nd Registration Forms. The plaintiff’s conduct touched upon “integrity” and must be dealt with seriously. He concluded that the plaintiff had breached the AA and moved for a resolution to expel the plaintiff. A vote was then taken and the Expulsion Resolution was passed by a majority (44 votes in favour, 7 opposed and 18 abstained). (iv) Expulsion of the plaintiff and publication of the notices in newspapers 25.On 6 February 2013, the plaintiff received a formal notice from the defendant notifying him of his expulsion as a member with immediate effect (“Expulsion Notice”). The Expulsion Notice stated that the plaintiff was in breach of Article 7 and his integrity was in serious question. 26.By a letter dated 6 February 2013 from the plaintiff’s then solicitors to the defendant, the plaintiff objected to his expulsion which he considered invalid. The plaintiff also pointed out that the Expulsion Notice contained statements defamatory of and concerning him and expressly reserved his rights. He demanded retraction of the Expulsion Notice and reinstatement of his membership. 27.Notices of the plaintiff’s expulsion were then published by the defendant in Wen Wei Po, Ta Kung Pao and Hong Kong Commercial Daily respectively on three consecutive days on 11, 12 and 13 March 2013, which contained the words complained of by the plaintiff as defamatory of him (“the Words”):
The holdings in the Judgment 28.The plaintiff and Mr Choi were the only witnesses at the trial. 29.For the claim of wrongful expulsion, the main issue is whether the plaintiff had wilfully committed an act of gross misconduct likely to be injurious to the defendant. It is the defendant’s contention that this was made out in that the plaintiff was dishonest in filling out the 2nd Registration Form in 2000 stating himself to be under Section 3 in order to gain an advantage in the directors’ election. This serious accusation comprised the following ingredients[9]:
30.As the judge noted, the defendant’s case is pitched at a high threshold of establishing dishonesty on the part of the plaintiff. The standard of proof, though on a preponderance of the balance of probabilities, must be proved by more compelling evidence for more serious allegation[10]. The judge found that the evidence and the contemporaneous documents do not support such serious allegation[11]. 31.The defendant only called Mr Choi to give evidence. After Mr Choi was cross-examined, the judge found that of the four ingredients mentioned above, three were not established:
32.Mr Jason Pow, SC, who appeared for the plaintiff throughout[19], pointed out that the holdings that ingredients (i), (iii) and (iv) are not established are not challenged in this appeal, and the defendant only seeks to challenge the rejection of ingredient (ii), which alleges that the plaintiff knew in 2000 that his native place or ancestral origin place was Shaxi and that Shaxi fell within Section 2. The judge rejected this contention in ingredient (ii) having analysed the plaintiff’s witness statements and oral testimony in detail and against objective evidence and contemporaneous records[20]. 33.In respect of this finding, it is pertinent to note the following matters as pointed out by Mr Pow:
34.As for the libel claim, the judge held it is not open to the defendant to argue that the Words do not bear the defamatory meanings as alleged by the plaintiff, in particular the words referring to his integrity. The defendant has put forward the Lucas-box[28] meanings of the Words and sought to justify the truth of those meanings but there is no corresponding defence of justification on the defamatory meanings as alleged by the plaintiff and found in his favour by the judge. In any event, the judge held that the Lucas-box justification must also fail by reason of his findings in the wrongful expulsion claim[29]. 35.As for the defence of qualified privilege, the judge held that the publication of the notices of the plaintiff’s expulsion in three newspapers respectively on three consecutive days was excessive and disproportionate, given the clear wordings of Article 7 (“it shall not be necessary for the Association to disclose to the members or make known to the public any reason for such expulsion”) and the real reason for the publication of the notices as shown in the minutes of the board meeting on 22 February 2013. He found that both the contents of the publication and the manner of publication far exceeded the exigency of the occasion and all these vitiated the defence of qualified privilege[30]. He also found the defence of qualified privilege vitiated by malice[31], even though it is unnecessary to consider this issue in light of his findings. This appeal 36.Six grounds of appeal were advanced by the defendant in the amended notice of appeal[32] and classified under eight issues in the oral submissions of Mr Wong Yan Lung, SC, who appeared for the defendant on appeal[33]. 37.Grounds 1 to 3 relate to the wrongful expulsion claim. The defendant contends that:
38.Grounds 4 to 6 relate to the libel claim. The defendant contends that the judge should have upheld the defence of justification. Further or alternatively, the judge erred in law and/or his analysis that the defence of qualified privilege was vitiated by (i) excessive and unnecessary publication of the notices; and (ii) malice. 39.Mr Wong recognised that this appeal is largely against the trial judge’s findings of fact. Hence, he emphasised that “palpable errors” were made which would warrant appellate interference with a finding of primary fact. He referred this court to ZJW v SY, CACV 10/2017, 1 December 2017 at §§25 to 34, which contained a comprehensive discussion of the appellate approach to reviewing findings of fact under three categories: findings of primary fact, findings based on evaluation of facts, and findings based on inferences. He contended that the judge had misunderstood the evidence in failing to appreciate the significance of material evidence in the context of a crucial factual dispute, citing Bright Gold Ltd v Mega Well Development Ltd [2020] 4 HKLRD 26 at §48. 40.It is pertinent to have regard to one further principle to which we drew Mr Wong’s attention. The judge found on the evidence that dishonesty on the part of the plaintiff was not established. In Central Bank of Ecuador & Ors v Conticorp SA & Ors [2015] UKPC 11 at §7, Lord Mance emphasised the need for caution when an appeal court is invited to upset the decision of a trial judge exonerating a party of a want of probity. Such a decision “should not be displaced on appeal except on the clearest grounds”, citing Akerhielm v de Mare [1959] AC 789 at 806. See also Galleria (Hong Kong) Ltd v DBS Bank [2021] HKCA 611 at §6. Grounds 1 to 3 – wrongful expulsion claim 41.The crucial factual dispute is the plaintiff’s state of mind when he filled in the information for “祖籍” (ancestral origin place) and “區” (Section) in the 2nd Registration Form in 2000. The timing when he acquired the knowledge that his祖籍 (ancestral origin place) was 沙溪鎮聖獅村 (Shaxi Town Shengshi Village) and that Shaxi belongs to Section 2 (which is undisputed), is obviously material. 42.As mentioned earlier, the minutes of the board meeting on 27 December 2012 recorded that the plaintiff gave this explanation about his “鄉籍” (native place) and the interview he gave to Zhongshan Daily in 2012:
43.In his examination in chief, the plaintiff was questioned about the minutes set out above. His evidence was as follows[34]:
44.In cross-examination, the defendant’s former counsel questioned the plaintiff in this manner:
45.In an attempt to discredit the plaintiff’s evidence, the defendant’s former trial counsel relied heavily on the fact that the details that came out in the above testimony (that the plaintiff had a conversation with one Mr Pang in 2011 or 2012 in a visit to Zhongshan and was told that since his family name is Pang, he should come from Shengshi and belong to Shaxi) were not mentioned in the plaintiff’s pleadings or witness statements and submitted that the additional details must be recent fabrication[37]. The judge rejected this contention. 46.Mr Wong submitted that the judge made a palpable error in rejecting the contention of recent fabrication. His argument was along these lines:
47.Another matter relied on by the defendant’s former counsel to support the contention that the plaintiff’s oral testimony on his state of mind in filling the 2nd Registration Form was a recent fabrication related to the fact that the plaintiff had not mentioned in his pleadings and witness statements his conversation with Mr CH Li when the latter showed the Table to him before the meeting of the Election Committee on 18 April 2000[44]. The plaintiff said in his evidence in chief that Mr CH Li told him at the time since the plaintiff came from Tanbei which belonged to Section 3, he should fill in Section 3 as his “祖籍” (ancestral origin place) in the 2nd Registration Form[45]. The judge rejected the contention of recent fabrication. 48.Mr Wong submitted that the judge made palpable error in rejecting there was recent fabrication in these respects:
49.Mr Wong submitted that if the court rejects the plaintiff’s evidence on the alleged conversation with one Mr Pang in 2011/2012 and his alleged conversation with Mr CH Li in 2000 as recent fabrication, adverse inference should be drawn from the plaintiff’s lies. The court should find on the defendant’s case that the plaintiff knew his “祖籍” (ancestral origin place) was “沙溪鎮聖獅村” (Shaxi Town Shengshi Village) and that he knew Shaxi belonged to Section 2 when he put down “三區東昇鎮觀欄鄉” (Section 3 Dongsheng Town Guanlan Village) in the 2nd Registration Form. 50.Further, he submitted that the judge erred in failing to find the plaintiff did so to gain electoral advantage and had failed to consider relevant objective evidence:
51.Mr Wong argued that the judge should have regard to the objective evidence as mentioned and he erred in rejecting the defendant’s case on motive by referring to Mr Choi’s acceptance it was only his speculation the plaintiff sought to gain electoral advantages[54]. The personal view of Mr Choi is irrelevant. 52.We are not persuaded by Mr Wong that the judge had fallen into palpable errors in refusing to find that the plaintiff knew his native place was Shengshi Village and that he should be classified as belonging to Section 2 when he filled out the 2nd Registration Form in 2000. The arguments of recent fabrication had been raised before the judge and thoroughly considered. He was entitled to form the view that the plaintiff had provided the gist of his explanation (albeit not in detail) at the board meetings on 27 December 2012 and 29 January 2013, and correctly noted that this has been pleaded in the statement of claim[55]. 53.Nor do we think the judge had misread the minutes of the meeting on 27 December 2012 in a material manner when he stated in the Judgment that the minutes recorded the plaintiff said he was “told” he should be “沙溪姓彭的” (Pangs from Shaxi) and was “told about his clan’s origin and the historical boundaries of Guanlan and Shengshi”[56]. The minutes were not a verbatim record. As rightly submitted by Mr Pow, to fairly understand the record, one should take into account the casualness and inaccuracies of colloquial Cantonese expressions. It would not be right to read too much into the character “問” (ask) in the minutes as necessarily denoting “質問” (questioning in a challenging sense). In the words of the English Court of Appeal in R (Moos) v Commissioner of Police of the Metropolis [2012] EWCA Civ 12 at §71[57], an appeal court should be slow to latch onto what may be no more than linguistic imperfection or infelicity of expression to undermine an otherwise impeccable judgment. Whether the plaintiff was “asked” as recorded in the minutes (“曾有人問過他”) or whether he was “told” as related in greater detail in his oral testimony can hardly feature as a material difference. 54.It is also pertinent to note that in the plaintiff’s examination-in-chief on the minutes, his cross-examination, and the questions put to him by the judge in this regard, the questions as quoted in the above extracts (“你提及到有人曾經話畀你聽你應該係沙溪姓彭嘅”; “大約係幾時有人話畀你聽嘅呢”; “呢個咁嘅資訊係大約幾時係理解到呢”; “你有冇記憶係咩嘢人嚟㗎，講呢啲嘅說話”; “有人同你講話「你係姓彭嘅，就係沙溪聖獅。」”; “係啲人話畀你聽”; “你個說法話其實你嘅祖籍係沙溪聖獅，… 係呢一位姓彭嘅人喺11、12年間話畀你聽嘅啫”; “按照你嘅講法，2011年你聽到有人講話原來觀欄有一部份呢，舊時係屬沙溪聖獅”) all proceeded on the basis the plaintiff was “told” that he should have originated from the Pangs clan of Shaxi and that in the past, part of Guanlan fell within the boundary of Shaxi Shengshi. It appeared to be the common understanding of all the questioners that the plaintiff was told by Mr Pang of the information and the plaintiff did not disagree with that when he gave evidence in answer. No one had suggested to the plaintiff that, as recorded in the minutes, he was just being asked and not told in an advisory sense. The point raised in the amended notice of appeal and pursued vigorously by Mr Wong was simply not taken at the trial. 55.We are inclined to agree with Mr Pow what probably happened in 2011/2012 was that the plaintiff was asked about his “籍貫/祖籍/鄉籍” (native place/ancestral origin place) and was told that he should originate from the Pangs of Shaxi, and that was effectively his oral testimony. The record in the minutes is consistent with and corroborative of the plaintiff’s testimony. It was not explored at the trial the extent to which the minutes were a complete or reasonably complete record. 56.Further details emerged from the plaintiff’s testimony of his conversation with Mr Pang that were not recorded in the minutes. The minutes recorded the plaintiff had said someone had asked him, he should have originated from the Pangs of Shaxi and he had repeatedly asserted that in the past part of Guanlan fell within the boundary of Shaxi (曾有人問過他，你應是沙溪姓彭的，他亦多次表明以前觀欄的地界有部份屬沙溪). It is pertinent to note that he was cross-examined on the basis that he was told by Mr Pang in 2011 that historically, a part of Guanlan was within Shaxi Shengshi (2011年你聽到有人講話原來觀欄有一部份呢，舊時係屬沙溪聖獅). In answer to this, the plaintiff asserted that his father was from Guanlan and at the time he considered that Guanlan belonged to Tanbei. 57.Hence, according to the further details in the plaintiff’s testimony, the relationship between Guanlan and Shaxi was part of the plaintiff’s conversation with Mr Pang. There is ambiguity in the minutes whether the plaintiff’s repeated assertion that in the past part of Guanlan fell within the boundary of Shaxi was made to Mr Pang or to others on other occasions. This was not clarified at the trial. No point was taken the minutes did not record that the plaintiff was told by Mr Pang in the past Guanlan fell within the boundary of Shaxi. He was cross-examined on the contrary basis. We consider the point made by Mr Wong for the first time in oral submissions regarding the second error a bad one. 58.As for the third error regarding the proper reading of the minutes, this is again a point not gone into at the trial. We do not agree with Mr Wong the judge is plainly wrong in understanding that when the plaintiff mentioned Shaxi at the meeting in December 2012, he was referring to the historical Shaxi which part of Guanlan once fell within. 59.Mr Wong sought to re-run arguments rejected by the judge. The judge had considered them and given detailed reasons why he refused to find the plaintiff knew as of 2000 that his “祖籍” (ancestral origin place) was “沙溪聖獅” (Shaxi Shengshi) instead of “觀欄” (Guanlan) and that Guanlan was under Section 2[58]. He cannot be said to be plainly wrong in accepting as the truth the plaintiff’s explanation he genuinely believed that his native place is Guanlan, and that he belonged to Section 3 by reason of the connection of Guanlan with “坦背” (Tanbei). The judge correctly noted that despite being told about the origin of the Pangs clan from Shaxi Shengshi, up to now the plaintiff is not sure whether it was indeed the case[59]. 60.We do not agree the judge had taken into account an irrelevant matter as regards Mr Choi’s evidence in that Mr Choi was not sure by 2000 the plaintiff already knew his ancestral origin place was Shengshi. This evidence (coming from the only witness of fact called by the defendant) showed how flimsy the defendant’s evidence was in attempting to prove that the plaintiff had such knowledge in 2000, and hence clearly inadequate in proving that the plaintiff had acted dishonestly in filling in the information about his native place and Section in the 2nd Registration Form. 61.As to the objective evidence relied on by Mr Wong, it is plainly impermissible to infer from the Mainland Article (based on the plaintiff’s interview in 2012) the plaintiff’s knowledge and state of mind in 2000 regarding his ancestral origin place and the Section that he should belong. To the contrary, as mentioned earlier, objective evidence found by the judge demonstrated that as of 1996, the plaintiff did regard his “籍貫/祖籍” (native place/ ancestral origin place) as “中山市坦背鎮觀欄村” (Zhongshan City Tanbei Town Guanlan Village). Other evidence Mr Wong said to be objective and prayed in aid to support the contention as to the plaintiff’s motive in gaining electoral advantage does not advance the defendant’s case. 62.Mr Pow properly conceded that the judge was mistaken in finding that the plaintiff had testified he had read the Table before filling in the information in the 2nd Registration Form. We do not think this is an error sufficiently material to undermine the judge’s overall assessment of the plaintiff’s credibility. The representation of Mr CH Li (which the plaintiff said he relied on in his oral testimony in filling in the 2nd Registration Form) was no different from the information gleaned from the Table (which the plaintiff said he relied on in filling in the Section number as pleaded in the Reply and mentioned in his witness statement). Furthermore, Mr Choi accepted that the veteran directors responsible for vetting the registration of members in Section 3, Mr CH Li and Mr HJ Ho, must have used the Table principally as the assessment tool in determining a member’s Section, and that the Table was a valid basis and bound to be used for this purpose[60]. It is pertinent to note that Mr Choi agreed, even up to 2010, no one attending the board meetings in which the 1st accusation against the plaintiff was debated could say definitively whether Gualan Village should be classified as Section 1 or 3 and no one had ever suggested that Guanlan Village could possibly fall under Section 2[61]. 63.The change of the date of the alleged conversation with Mr CH Li from 31 May 2000 to 18 April 2000 was raised before the judge. He considered there seemed to be some confusion as to the date and one cannot expect the plaintiff to recall all the minute details of events which happened many years ago[62]. He is entitled to regard the change as immaterial. 64.As submitted by Mr Pow, three of the four ingredients of the defendant’s case of dishonesty were not established and these holdings are not challenged on appeal. The minor mistake of the judge mentioned above could have no significance to the rejection of the defendant’s case of dishonesty. The appeal court should not disturb the judge’s finding exonerating the plaintiff of dishonesty and substitute a finding of dishonesty except on the clearest grounds. 65.As regards the other points raised by Mr Wong in relation to the plaintiff’s conversation with Mr CH Li in 2000, he was seeking to re-run arguments considered and rejected by the judge. We do not think it would avail the defendant to repeat those submissions as they are not valid grounds for appellate intervention. 66.We do not agree with Mr Wong’s contention the court should infer that the plaintiff filled in the 2nd Registration Form in the way he did because he wanted to be elected as a director in the re-election in 2000. Quite apart from the fact that such inference is contrary to the judge’s finding there was no basis to say that the plaintiff was seeking to move away from Section 1 due to electoral advantage[63], we do not consider any of the matters urged upon this court by Mr Wong are sufficiently cogent for such an inference to be drawn. 67.It is not a fair reading of the Judgment to say that the judge simply rejected the defendant’s case on sinister motive of the plaintiff in 2000 to gain electoral advantage based on Mr Choi’s acceptance in cross-examination it was only his speculation with no solid evidence to back this up[64]. This was but one of the reasons. As we have discussed earlier, the judge had multiple reasons for rejecting the defendant’s case. 68.Mr Wong also contended that the judge should have found that the defendant met the requirement in Article 7 of the AA in that there was “due investigation” into the offence and “satisfactory evidence” was obtained. He argued that it should be borne in mind that the defendant was not a judicial or investigative body and so long as the investigation and evidence had provided a reasonable basis for the directors to exercise their power, the requirement in Article 7 should be regarded as met. 69.In light of our conclusion there is no basis to impugn the primary findings of fact the plaintiff had not wilfully committed an act of gross misconduct likely to be injurious to the defendant, it is not necessary to deal with the arguments on “due investigation” and “satisfactory evidence”. In any event, we share the judge’s doubts whether the directors involved in the voting process had properly understood the nature of the charge or accusation against the plaintiff and whether they had been directed to focus on the plaintiff’s state of mind when he put down “Section 3” in the 2nd Registration Form[65]. 70.For all the above reasons, the grounds of appeal raised in respect of the wrongful expulsion claim must fail. Grounds 4 to 6 – libel claim (i) Justification 71.As we have upheld the finding that the plaintiff had not wilfully committed an act of gross misconduct likely to be injurious to the defendant, the defence of justification must fail. It is not necessary to discuss whether the defendant should be allowed at the appeal stage to amend its pleading, if so required, to plead justification in relation to the defamatory meaning of the Words alleged by the plaintiff. (ii) Qualified privilege – excessive and unnecessary publication 72.It is the defendant’s case that the publication of the notices in newspapers were the only possible and effectual mode of communication of the fact and reasons for the plaintiff’s expulsion to all its members[66]. 73.In deciding this issue, the judge considered these relevant factors: (i) the nature of the occasion said to give rise to the privilege; (ii) the means of the publication chosen; (iii) the reason why such means of publication was adopted; and (iv) whether in the circumstances it was reasonably necessary and proportionate to adopt that manner of publication[67]. There is no suggestion that the judge erred in the identification of the relevant factors. It is well established that publication must be proportionate to the necessity of the occasion and does not go wider than is required for the effective making of the communication in the ordinary course of business[68]. 74.The judge’s decision on this issue is a finding based on evaluation of facts. This involved an assessment of reasonableness and a balancing exercise of proportionality. He assessed a number of different factors which have to be weighed against each other and this is often a matter of degree upon which different judges can legitimately differ. This may be regarded as closely analogous to the exercise of a discretion and appellate courts would approach an appeal against a finding based on evaluation of facts in a similar way (ZJW v SJ at §33, quoting Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2003] 1 WLR 577 at §16). 75.Mr Wong submitted that the judge was wrong to hold that the publication of the notices in three newspapers respectively on three consecutive days was excessive and disproportionate. His arguments may be summarised as follows:
76.We do not agree with Mr Wong’s submissions. 77.Otuo v Watch Tower Bible and Tract Society of Britain was cited to the judge. The case involved a religious context. The question there was whether the elders in the congregation had a legitimate religious and moral interest and duty to inform members of the congregation and other interested parties of their decision to disfellowship an unrepentant wrongdoer and faithful members had a reciprocal legitimate religious and moral interest to be informed of the decision to alert them to stop associating with that person. Otuo is clearly distinguishable. Article 7 of the AA sets a default position that “it shall not be necessary for the Association to disclose to members or make known to the public any reason for such expulsion”. 78.A central issue concerning the defence of qualified privilege in Otuo was whether this defence was defeated by reason of some procedural irregularity or impropriety of such gravity as to undermine the validity of the conclusions arrived at, so that the publishers and publishees did not have the reciprocal duties and interests relied on. The defence was upheld as it was held (at §154) there was no procedural irregularity or impropriety of such gravity to undermine the validity of the decision that the claimant should be disfellowshipped. In this instance, as we have upheld the judge’s declaration that the Expulsion Resolution is invalid, reciprocal duties and interests did not arise as they would be vitiated by procedural irregularity or impropriety. 79.It is irrelevant that Article 19 provides for the publication of notice of general meeting to members by advertisement in newspapers. Nor is it material that part of the objects of the defendant are related to charitable cause. 80.The defendant’s justification for publishing to the public at large the reason of the plaintiff’s expulsion had been analysed by the judge. Based on the minutes of the board meeting on 22 February 2013, the judge found that the alleged reason to notify members of the fact and reason of the expulsion was not the true reason for publishing to the public, but that the publication was made in response to the letter sent to the defendant by the plaintiff’s solicitors. He found that the use of newspaper publications had nothing to do with some 560 members not contactable through correspondence[72]. We see no reason to interfere with this primary finding of fact. 81.Since the avowed reason for publishing to the public was not to inform members of the fact and reason of the expulsion, as found by the judge, it is not strictly relevant to consider whether publication in newspapers was the only possible and effectual mode of communication to all the members. 82.As for the suggestion that it would be an effectual mode of publishing the notice by prominent posting in the defendant’s premises, this was raised by Mr Pow in his opening and closing submissions at the trial and the judge had mentioned this as part of the plaintiff’s contention[73]. No pleading objection was taken before the judge by the defendant’s previous legal team. No complaint was made about the lack of pleading in the amended notice of appeal. We do not think there was unfairness to the defendant in the circumstances. The judge was entitled to find that posting such a notice in the defendant’s premises could have brought the expulsion notice to the attention of members when they attended the premises and that there was no urgency in bringing this to members’ attention[74]. He also had regard to the absurdity of the defendant’s conduct in publishing the fact and reason of the expulsion revealed in Mr Choi’s cross-examination[75]. 83.The views of Mr KS Lam cannot be regarded as irrelevant. He was the chairman and regarded as “the highest leader”[76]. He played a leading role in orchestrating the plaintiff’s expulsion. The contents of the draft notice were dictated by him without reference to the board. The board allowed him a free hand and it was only after publication of the notices in newspapers that the board passed a resolution on 27 March 2013 reaffirming the publication of the notices[77]. 84.In any event, if the main reason for publishing the notices in newspapers was to notify members of the plaintiff’s expulsion, there was no justification for not stating this simple fact alone and no reason to include the accusation of questionable integrity and breach of the AA in the notices[78]. 85.There is no sufficient basis to interfere with the judge’s finding based on his evaluation of facts that the publication in three respective newspapers for three consecutive days was excessive and disproportionate in that both the contents and the manner of publication far exceeded the exigency of the occasion. The defence of qualified privilege must fail on this ground alone. (iii) Qualified privilege: malice 86.Mr Wong contended that since the decision to publish the notices in newspapers was a collective decision of the board, it is not right to attribute the alleged malice of Mr KS Lam to the defendant[79]. He submitted that the judge erred in holding that malice of Mr KS Lam should be attributed to the defendant for these reasons:
87.As we have upheld the judge there was excessive and disproportionate publication and qualified privilege is not available, it is not necessary to consider whether this defence should also be vitiated by malice. 88.In any event, we do not think the judge was in error and will just deal with Mr Wong’s arguments succinctly. 89.The pleading objection was raised below and was rejected by the judge[81]. It did not feature in the amended notice of appeal although it was mentioned in Mr Wong’s skeleton argument. It is correct that the paragraphs in the reply identified by Mr Wong did not plead specifically that the dictation of the contents of the notices by Mr KS Lam is the basis of the attribution of malice. What was pleaded at §17(A)(35) was that “without seeking the opinion/resolution of the Board of Directors, and in the absence of justifiable reason, some directors of the Defendant determined maliciously to publish the Words in newspapers” and at §17(B) that Mr TK Li and Mr KS Lam, who had been instrumental to the motions in 2012 and 2013, held personal ill-spite against the plaintiff. The plaintiff did not know at the time who drafted the Expulsion Notice and the notice published in the newspapers. It was only in Mr Choi’s testimony that Mr KS Lam was identified as the one who decided on the contents of the notices. We agree with the judge that the pleading in the reply should entitle the plaintiff to run the case of attributing malice of Mr KS Lam to the defendant. We do not think the pleading is deficient or that the defendant was prejudiced on account of any deficiency. 90.We agree with Mr Pow that Mr Wong would appear to have conflated the concepts of attribution of knowledge/intention with ratification of authority. The judge has correctly relied on the relevant principles for attribution in §§123 and 124 of the Judgment. 91.As for the remaining argument that the notices published in the newspapers merely repeated the wording of the Expulsion Resolution, this was raised before the judge and rightly rejected for the reasons in §127 of the Judgment. Conclusion and costs 92.For the above reasons, we dismiss the defendant’s appeal. Having heard submissions on costs, we order the defendant to pay the plaintiff’s costs of the appeal with a certificate for two counsel.
Mr Jason Pow SC, Mr Hatten Kong and Mr Vincent Wan, instructed by Keith Lam Lau & Chan, for the Plaintiff (Respondent) Mr Wong Yan Lung SC and Mr James Man, instructed by K F Chan & Co, for the Defendant (Appellant) [1] The relevant part of Article 7 provides: “If any member … of the Association shall wilfully commit … an act of gross misconduct likely to be injurious to the Association, … such member … shall be liable to expulsion from the Association by a resolution of the Board of Directors after due investigation into and satisfactory evidence of the offence committed however, he shall have an opportunity to explain or defend himself within a certain time specified by the Board of Directors. It shall not be necessary for the Association to disclose to the members or make known to the public any reason for such expulsion, nor to return to him the prepaid subscription.” [2] See “The Evolution of Chungshan County” (中山縣沿革) in the special publication. [3] See “Historical Evolution” (歷史沿革) from the website of Dongsheng Town. Zhongshan has since been designated a city not a county. The present administrative demarcation no longer used the label of numbered “Sections”. [4] Judgment, §57. [5] The plaintiff stated in the 2nd Registration Form he was chairman of the clansmen association of Tanbei. [6] See also “Historical Evolution” (歷史沿革) from the website of Dongsheng Town. [7] “最後核實清楚, 他是坦背, 當然屬於三區了。” [8] The original in the minutes read: “曾有人問過他，你應是沙溪姓彭的，他亦多次表明以前觀欄的地界有部份屬沙溪，但至設市立鎮時，中山市以河為界，將觀欄撥入坦背，所以是三區” [9] Judgment, §31 [10] Judgment, §§32, 83, citing Re a Solicitor (2008) 11 HKCFAR 117, the relevant parts are from §§64 to 84. [11] Judgment, §64 [12] Judgment, §§67(ii) and (ix). See also the statements of Mr Wong at the board meeting on 26 July 2010 mentioned earlier. [13] Judgment, §67(vii) [14] Judgment, §68 [15] Judgment, §67(i) [16] Judgment, §65 [17] Judgment, §67(iii) [18] Transcript on Day 3 p 169 line T to p 170 line J [19] With Mr Hatten Kong and Mr Vincent Wan on appeal [20] Judgment, §§70 to 85 [21] Judgment, §71(i) [22] Judgment, §71(ii) [23] Judgment, §78 [24] Judgment, §66 and the plaintiff’s evidence quoted at the Judgment, §§49 to 54. [25] Judgment, §49 [26] Judgment, §81 [27] Judgment, §§86, 87 [28] Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 [29] Judgment, §§92 to 94 [30] Judgment, §114 [31] Judgment, §128 [32] The notice of appeal and the amended notice of appeal were not settled by the defendant’s trial counsel. [33] With Mr James Man [34] Transcript of Day 2, p 64 line U to p 65 line U. A description of this was given in the Judgment at §71(vii). [35] Transcript of Day 2, p 70 lines F to K [36] Transcript of Day 2, p105 lines A to K [37] Judgment, §73 [38] Judgment, §§23(ii), 71(iv) and 77 [39] The 2nd and 3rd errors are not mentioned in the amended notice of appeal or the skeleton argument of the defendant. [40] The judge found in §77 of the Judgment that based on what the plaintiff was told about his clan’s origin and the historical boundaries of Guanlan and Shengshi, there was no conflict between the respective statements in the Mainland Article and the 2nd Registration Form. [41] Judgment, §71(iv) [42] Judgment, §83 [43] Judgment, §§59, 67(xi) [44] Judgment, §73 [45] Transcript of Day 2, p 62 lines H to M, p 76 lines N to O [46] Judgment, §75 [47] Transcript of Day 2, p 76 lines L to V, p 83 lines D to G, p 128 lines H to R [48] Reply filed on 16 September 2013, §§4(6), 5(4) and (5) [49] Witness statement of the plaintiff dated 7 December 2015, §§13, 14 [50] Transcript of Day 2, p 81 line T to p 82 line C [51] Judgment, §§79(i), 80 [52] Transcript of Day 2, p 76 lines L to V [53] Minutes of the 5th meeting of the Election Committee on 31 May 2000 [54] Judgment, §59 [55] Judgment, §77; statement of claim, §16(6) [56] Judgment, §77 [57] Quoted in Tsang Wing Kwai v Tsang Wing Fai (No 2) [2019] 1 HKLRD 1300 at §37 [58] Judgment, §§72, 77, 78, 81, 82, 83, 85, 86, 87 [59] Judgment, §87; Transcript of Day 2, p 65 lines M to O, S to U, p 69 lines J to M. [60] Judgment, §67(vii) [61] Judgment, §§67(ii), (ix) [62] Judgment, §§79(i), 80 [63] Judgment, §67(iii) [64] Judgment, §§59, 67(xi) [65] Judgment, §89 [66] Amended defence, §35(6) [67] Judgment, §99 [68] Ng Yui Tong v Chan Chi Keung, CAMP 354/2022, 8 February 2023, citing Gatley on Libel and Slander (13th ed) at §15-067 [69] Judgment, §108 [70] Judgment, §105 [71] Judgment, §§107, 111 [72] Judgment, §§104 to 106 [73] Judgment, §38 [74] Judgment, §108 [75] Judgment, §111 [76] Judgment, §124 [77] Judgment, §§113, 124 [78] Judgment, §113 [79] Judgment, §117 [80] Judgment, §127 [81] Judgment, §§125, 126 | |||||||||||||||||||||||||||
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