Leung Chi Ching Candy v. Yeung Hon Sing
Read the full judgment text of DCCJ 5079/2015 on BabelCite. This District Court judgment was delivered on 28 February 2025.
1. The trial of this defamation action (“ first trial ”) took place before a deputy District Judge (“ DDJ ”). On 15 November 2019, the DDJ handed down his judgment in favour of the plaintiff (“ DC Judgment ”). [1] The plaintiff was awarded damages in the sum of HK$400,000 and a final injunction to restrain further publication of the defamatory statements.
Cited by 4 cases · Cites 6 cases
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DCCJ 5079/2015 [2025] HKDC 197 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 5079 OF 2015 ------------------------ BETWEEN
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------------------------ JUDGMENT ------------------------ A. Introduction 1.The trial of this defamation action (“first trial”) took place before a deputy District Judge (“DDJ”). On 15 November 2019, the DDJ handed down his judgment in favour of the plaintiff (“DC Judgment”).[1] The plaintiff was awarded damages in the sum of HK$400,000 and a final injunction to restrain further publication of the defamatory statements. 2.On 26 November 2021, the Court of Appeal allowed the defendant’s appeal and remitted the case for re-trial before a different judge restricted to the issue of malice in the context of qualified privilege (“CA Judgment”).[2] 3.This is the re-trial of this action. B. Background 4.The following background, taken largely from CA Judgment, is not disputed. B1. Significant events 5.The plaintiff and the defendant are both owners and occupiers of residential flats in Cheerful Garden (富怡花園) in Siu Sai Wan, Hong Kong (“Estate”). 6.Prior to the establishment of its incorporated owners (“IO”), the Estate was managed by Chevalier Property Management Limited (“Chevalier”) who was the manager appointed under the applicable deed of mutual covenants (“DMC”). The DMC also provided for the formation of an owners’ committee (“OC”) to represent the owners in all dealings with the manager. 7.The defendant was the chairman of the last OC (“14th OC”) prior to the formation of the IO. After the establishment of the IO on 14 April 2010, he was elected chairman of the management committee of the IO (“1st MC”). 8.Under the defendant’s chairmanship, the 14th OC halted the major renovation proposed by previous OC and Chevalier. The 14th OC also renegotiated with Chevalier with a view to convert Chevalier from a DMC-appointed manager to a manager appointed under a new management services contract. 9.In June 2011, the defendant and some other members resigned from the 1st MC. At the extraordinary general meeting (“EGM”) of the IO held on 21 August 2011, the plaintiff was elected in a by-election as the chairman for the remaining term of the 1st MC (“By-Elected 1st MC”). 10.During the plaintiff’s chairmanship, she proposed a major renovation for the Estate. The By-Elected 1st MC sent out a questionnaire to the owners to collect their views. Based on the result of the questionnaire, the By-Elected 1st MC resolved at its 6th meeting held on 8 February 2012 to commence the renovation and to collect $10,000 from the owners of each flat. 11.On 15 February 2012, the legal advisor of the IO advised against relying on the questionnaire as a basis to raise funds from the owners. The By-Elected 1st MC was advised that an owners’ resolution passed at an owners’ meeting would be necessary. 12.On 17 February 2012, the plaintiff informed the owners that more than half of the owners who responded to the questionnaire had agreed to the renovation. On the same day, the By-Elected 1st MC advertised to invite tenders for the post of consultant in relation to the proposed renovation. 13.In the selection process for the consultant, the plaintiff relied on a scoring system managed by three volunteers but the identities were not disclosed. At the 8th meeting of the By-Elected 1st MC held on 31 March 2012, Wong Kwong (“W&K”) was selected as the consultant for the proposed renovation. 14.W&K issued its consultancy report on 25 May 2012. However, it did not provide a price estimate for the renovation. On 3 June 2012, a consultancy meeting was held for W&K to answer questions raised by the owners directly. 15.The process for accepting tenders from contractors for the proposed renovation began on 30 June 2012 and ended on 11 July 2012. 16.On 7 July 2012, the notice for the annual general meeting of the IO to be held on 22 July 2012 (“2012 AGM”) was issued. There were 18 items on the agenda, including the approval of the proposed major renovation (item 11), the seeking of contribution from the owners for the renovation (item 9), the approval of the management services contract (item 3), the appointment of the security service provider (item 7) and the election of the chairman and other officers and members of the 2nd MC (items 14 to 18). 17.Out of 14 tendering contractors, W&K required 10 to provide supplemental information but most of them were unable to do so due to the time constraint. As a result, only four contractors who submitted tenders were interviewed on 17 July 2012. On 20 July 2012 (just two days before the 2012 AGM), W&K provided its analysis of the tenders from those interviewed. 18.At the 2012 AGM, the major renovation proposed by the plaintiff was voted down by the majority of the owners (68.47% of the votes). The plaintiff withdrew from the election, and the defendant was elected as the chairman of the 2nd MC. 19.As for the appointment of the security service provider, the plaintiff announced before the votes were cast that one of the candidates, Centurion Facility Co Ltd (“Centurion Facility”), would lower its bid to $8.7 million. This announcement was made after the other candidates had put in their bids which were made known to the By-Elected 1st MC and the owners. By a resolution passed by the owners, Centurion Facility was chosen as the security service provider. 20.After the 2012 AGM, there were campaigns, harassing events and disturbances in the Estate seeking to remove the defendant as the chairman. In 2012 and 2013, there were disruptions of the meetings of the 2nd MC and the police were called on several occasions. B2. The claim 21.The plaintiff’s claim is based on six articles (enumerated herein as “1st Article” to “6th Article”) published by the defendant between March 2013 and August 2015 during his tenure as Chairman of the MC. B3. The defence 22.The main defences advanced by the defendant in the first trial were justification, honest comment and qualified privilege. B4. The findings of the DDJ 23.It was not disputed that the defendant published or caused to be published all six articles and the DDJ found them to be defamatory of the plaintiff. As recorded in para 18 of CA Judgment, there was no appeal against such finding. 24.The DDJ analyzed the defences in terms of seven categories of defamatory stings, which was adopted by the Court of Appeal in its own analysis. They were:
25.The DDJ found the underlying factual basis for all six articles to be false. As recorded in para 20 of CA Judgment, there was no appeal against such findings. 26.For the defence of justification, the DDJ found that none of the seven categories were justified by facts and hence the defence failed. As recorded in para 22 of CA Judgment, there was no appeal against such finding. 27.The DDJ found the defamatory stings for Categories 1 and 2 to be imputations of facts and so the defence of honest comment was not available for them. Furthermore, the DDJ found that the comments made were not ones which could have been made by an honest person and/or that the defendant had acted dishonestly when making such comments. Hence, all the defamatory statements did not come within the objective limits of the defence and/or were rebutted by malice, and the defence failed. As recorded in para 22 of CA Judgment (and subject to the elaboration in paras 47 & 48 below), there was no appeal against such findings either. 28.Turning to the defence of qualified privilege, it was not disputed that communications between the IO or MC and the owners regarding the management and administration of the Estate would be capable of being covered by qualified privilege.[3] The DDJ also found that the purpose for which the privilege was accorded on the occasions the six articles were published was consistent only with the communication of a matter believed to be true.[4] Based on his other findings, the DDJ held that the defendant did not publish the articles for a proper purpose and so the defence was defeated by malice.[5] B5. The comments of the Court of Appeal on appeal 29.Feeling aggrieved, the defendant applied to the DDJ for leave to appeal. The draft notice of appeal that was placed before the DDJ ran into 62 pages. By his decision dated 22 May 2020, the DDJ refused to grant leave to appeal.[6] 30.In the renewed leave application, the Court of Appeal directed the defendant to submit a revised draft notice of appeal. Eventually, leave was granted on 6 grounds only, relating to honest comment (grounds 1 and 2), qualified privilege (grounds 3 and 4), wrongful exclusion of the evidence of Ma Chun Fat (ground 5) and judicial copying (ground 6). 31.At the substantive hearing before the Court of Appeal, the defendant did not pursue grounds 1 and 2 as independent grounds of appeal (although the matters stated therein were relied upon in developing the arguments for grounds 3 and 4) and ground 6 was rejected. 32.As regards grounds 3 and 4, the main criticism raised by the defendant was that the DDJ’s approach “short-circuited” the subjective test for finding malice as regards the defence of qualified privilege and had thereby excluded most of the subjective factors which ought to have been taken into account in finding the dominant purpose of publishing the defamatory statements. 33.It was held by the Court of Appeal that:
34.The Court of Appeal allowed the appeal and ordered “a re-trial of this case before a different judge of the District Court, limited to the issue of malice in the context of qualified privilege.” See para 79 of CA Judgment. C. The re-trial 35.At this re-trial,
C1. What is this re-trial about? 36.Despite the court’s direction, the parties did not lodge an Agreed Statement of Findings of the DDJ for the purpose of the re-trial.[9] At the re-trial, both parties offered their commentaries on the articles with reference to the significant events highlighted above. No or no sufficient reference was made to the findings of the DDJ. Significantly, they were still in dispute in closing argument as to the binding effect of DC Judgment. 37.The defence counsel made it clear in their opening submissions that they did not dispute the underlying events, the contemporaneous documents in the trial bundles and the fact that the defendant published the articles.[10] They submitted in closing submissions that:
38.The plaintiff’s counsel criticized the defendant for attempting to reopen the findings of the DDJ via the backdoor “bypass[ing] the Ladd v Marshall rule and/or the Flywin test”.[13] 39.Both parties cited Lord Reed NPJ’s speech at para 55 of Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94 in argument.
40.To start with, I do not think the Ladd v Marshall rule or the Flywin test applies in the present context, as this is neither an application for leave to adduce further evidence on appeal nor an attempt to raise new points on appeal which had not been canvassed in the court below. Rather, the present dispute relates to the limits of my adjudicative power on the remitter. 41.Recently in First Laser Limited v Fujian Enterprises (Holdings) Company Limited [2023] HKCFA 39, the Court of Final Appeal gave the following answer to the question “What is the scope of a remitter when the Court of Appeal (or the appellate court) remits an issue for trial?”:
42.The Court of Final Appeal specifically approved the following elaboration of Lord Sumption in Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 at para 13.
43.In the present case, the Court of Appeal did not order a full re-trial but only remitted the issue of malice in the context of qualified privilege for re-trial. In so doing, the Court of Appeal must have assumed that the findings of the DDJ in DC Judgment in other respects would form the basis of the limited re-trial. This is all the more so as the re-trial is directed to take place before a different judge who was not present at the first trial and did not enjoy the benefit of seeing how the witnesses testified in the first trial. It would be impossible for the re-trial court to make findings on the matters afresh. 44.Given the limited scope of the remitter, this re-trial must be built on the findings in the first trial unless they are doubted or overturned by the Court of Appeal. This much is plain from the language of the order when read in the context of CA Judgment. It does not matter that the Court of Appeal did not expressly refer to any of the DDJ’s findings as being applicable or binding for the re-trial as in Jonathan Lu. 45.In any event, the Court of Appeal commented that the DDJ, in making findings of the underlying facts, had “rightly” took into account the objective facts, the plaintiff’s evidence and the defendant’s admissions of his knowledge of various matters put to him in cross-examination. The Court of Appeal also commented that the DDJ was “entitled” to draw the inference that the complaints were of no substance based on the evidence he considered.[16] So, the Court of Appeal has endorsed the findings of the underlying facts of the DDJ and the inference drawn by him. 46.Based on his findings of the underlying facts and the inference drawn, the DDJ rejected the defence of justification.[17] As there was no appeal, the findings of the DDJ on the defence of justification remain valid. I reject the defendant’s contention that such findings are not binding for the purpose of the re-trial. 47.Whilst the Court of Appeal doubted the DDJ’s finding, in the context of honest comment, that the defendant knew the comments were without factual or evidential foundation and was dishonest,[18] the defendant did not pursue grounds 1 and 2 of his appeal and the Court of Appeal did not remit the issue of malice in the context of honest comment for re-trial. Save as to one aspect which will be discussed shortly, I reject the defendant’s contention that the DDJ’s findings on honest comment are not binding in the re-trial. 48.Given the way DC Judgment was structured, the Court of Appeal started its analysis by discussing how the DDJ got it wrong in the context of honest comment.[19] The defendant’s abandonment of the grounds of appeal pertaining to honest comment was without prejudice to his argument pertaining to qualified privilege which eventually found favour with the Court of Appeal.[20] In any event, “malice” bears different meaning in honest comment and qualified privilege.[21] Thus, the DDJ’s finding in the context of honest comment that the defendant knew the comments were without factual or evidential foundation and that the defendant was dishonest would not circumscribe the defendant’s case on malice in the context of qualified privilege in the re-trial. 49.For the above reasons, the ensuing discussion will be based on the findings of the DDJ but subject to the comments of the Court of Appeal. 50.It should be emphasized, however, that the DDJ’s findings only serve as the starting basis of the re-trial. The Court of Appeal has reiterated that malice is a subjective test, entirely dependent on the defendant’s state of mind and intention at the time of communication.[22] As such, all the relevant circumstances surrounding the making of the communications should be taken into account, as they could have some bearing in shaping the defendant’s belief, intention and thinking at the time.[23] That would include the evidence omitted by the DDJ (ie Ma’s evidence and the evidence of the disturbances in the Estate and the plaintiff lobbying for signatures in a campaign to remove the 2nd MC), the matters enumerated in para 52 of CA Judgment (see para 74 of CA Judgment) and other matters urged upon me by the parties at the re-trial. C2. The focus of the re-trial 51.To recap, all six articles were found to be defamatory of the plaintiff. The defences of justification and honest comment having failed, the only defence left for consideration is qualified privilege. 52.The only issue that was remitted for re-trial is malice in the context of qualified privilege. As the pleadings go:
53.The Court of Appeal has given comprehensive guidance in CA Judgment on the law and how to decide whether a communication was published maliciously, for the purpose of rebutting the defence of qualified privilege. For present purpose, the following summary, taken from para 19.04 of Duncan and Neill on Defamation and other media and communications claims, 5th edition (2020), is instructive:
54.In this case, it is not disputed that communications between the IO or the MC on the one hand and the owners of the Estate on the other hand regarding the management and administration of the Estate are capable of being covered by qualified privilege.[26] If the defendant’s dominant motive is not to communicate with the owners regarding the management and administration of the Estate, then he is outside the ambit of the defence.[27] This should be one of the focuses of the re-trial. 55.The DDJ also found that the privilege accorded is consistent only with the communication of a matter believed to be true.[28] The Court of Appeal commented that it was a finding that the DDJ was entitled to make, provided there was good reason for it. As it was not fully argued on appeal, the Court of Appeal did not find it necessary to deal with it and left that finding untouched.[29] That finding remains valid for the purpose of the re-trial. 56.According to the Court of Appeal, the significance of that finding is that:
57.Given the DDJ’s finding that the underlying factual basis for all six articles was false, another focus of the re-trial should be whether the defendant knew of the matters’ falsity or whether he did not care whether they were true or false. 58.Thus, the focuses of the re-trial are:
59.In closing argument, the defendant also invited this court to decide “if privilege is accorded for communication of matter even if it is not believed to be true”.[32] As I understand, it is not the defendant’s case that he did not believe in the truth of any of the matters stated in the articles. In fact, neither party has proffered argument in that regard. It is not necessary for me to grapple with that issue. In any event, helpful guidance has been given by the Court of Final Appeal in para 21 of Jonathan Lu. C3. The evidence at the re-trial C3a. Witnesses 60.Pursuant to the order dated 29 September 2022, the plaintiff, the defendant and Ma attended the re-trial for cross-examination. 61.In para 118 of his closing submissions, the plaintiff’s counsel accepted that the plaintiff’s evidence at the retrial is not particularly relevant, as it did not “relate to what D knew or believed at the time.” Given that the focus of the re-trial is on the subjective state of mind and intention of the defendant at the time of publishing the articles, the evidence of the defendant would be particularly pertinent. 62.The plaintiff’s counsel submitted in paras 121 to 124 of his closing submissions that the defendant had undermined his credibility by his evidence at the re-trial. I do not agree.
63.In closing argument, the plaintiff’s counsel urged this court to place little weight on Ma’s evidence because inter alia Ma is not an independent witness. With respect, that submission is not open to the plaintiff to make without proper cross-examination. As noted by the defence counsel, Ma was not questioned on any of the contents of the articles when he was tendered for cross-examination at the re-trial. 64.The plaintiff has not succeeded in discrediting the defendant and Ma and I accept their evidence. C3b. The absence of Kot Ching Chu (“Kot”) 65.Kot did not testify in the first trial and the re-trial. 66.In closing argument, the plaintiff’s counsel criticised the defendant for not calling Kot.[35] It is said that Kot was a member of the 14th OC, the 1st MC and the By-Elected 1st MC and was familiar with the affairs of the Estate. She would be able to give helpful evidence on matters such as the discussion at various meetings of the OC or MC on “大型維修工程”. The plaintiff went so far as to invite this court to draw an adverse inference against the defendant. In reply, the defendant’s counsel said no adverse inference could be drawn as the defendant was confined by the order of 29 September 2022 to call the defendant and Ma only. The defence is right. 67.When this case was set down for re-trial, it was directed inter alia that the evidence given by the witnesses in the first trial be part of the evidence in the re-trial and that the plaintiff, the defendant and Ma would be further cross-examined: see paras 2 and 3 of the order dated 29 September 2022.[36] It is not apparent from the Reasons accompanying the order that the plaintiff had requested the defendant to tender any additional witnesses for cross-examination.[37] 68.As a matter of fact, Kot was scheduled to testify for the defendant in the first trial. When the defendant opened his case, a decision was made not to call Kot “for the purpose of procedural economy”.[38] Upon the plaintiff confirming that there was no application to subpoena Kot, the DDJ decided to ignore Kot’s witness statement and proceeded with the trial.[39] 69.In the first trial, the counsel then representing the plaintiff did not ask the DDJ to draw any adverse inference against the defendant for not calling Kot. Instead, she invited the court to reject the defendant’s evidence that he had learnt from Kot that the plaintiff had begun lobbying to unseat the 2nd MC “immediately” after the 2012 AGM[40] as it was not supported by Kot’s evidence.[41] As it turned out, the DDJ excluded from consideration the evidence of the plaintiff’s lobbying for signatures in a campaign to remove the 2nd MC altogether. 70.In any event, since the re-trial is concerned with the defendant’s state of mind when he published the articles and much had happened since the 2012 AGM, whether the plaintiff started lobbying for signatures to unseat the 2nd MC “immediately” after the 2012 AGM is neither here nor there. There is no basis to draw any adverse inference against the defendant and I reject the plaintiff’s contention. C3c. Documentary evidence 71.The trial bundles used in the first trial, with the necessary updates, are reused in the re-trial. As noted by the DDJ, the factual matrix of this case was mostly contemporaneously recorded in writing and neither party had significantly challenged the accuracy of the record.[42] That remains the position in the re-trial. 72.The transcript of the first trial is also provided for my reference in Bundles D1 to D3. C3d. The defendant’s new evidence 73.On Day 3 of the re-trial, the defendant filed his 3rd Supplemental List of Documents giving discovery of four newspaper articles and applied to cross-examine the plaintiff on such documents. That was met with strong objection from the plaintiff. 74.In argument, the defendant’s counsel referred to the defendant’s evidence in the first trial that after the 2012 AGM he found out more from newspapers about W&K’s involvement in bid-rigging in the renovation of 富嘉花園.[43] Counsel said the new documents were provided by the defendant at a conference prior to the re-trial and the same was annexed to the defendant’s opening submissions to give advance notice to the plaintiff. 75.I dismissed the application after hearing the argument. Whereas the defendant took the trouble to file a Supplemental List of Documents, there was no affidavit to ground the application. In particular, there was nothing to explain the lateness of the discovery. It is quite apparent that these documents were recent printouts (printed in 2024 after the first trial) and the defendant could not have referred to them in his witness statement and in the first trial. D. Discussion D1. The 1st Article 76.The 1st Article, dated March 2013, was published by the defendant in the name of the IO to the owners of the Estate. A copy of the article is at [A1/29]. 77.The article has three parts.
78.It is the defendant’s evidence that the dominant purpose of his publication of all six articles was to respond to something that had happened in the Estate:
79.As regards the 1st Article, he said:
80.He said that the 1st Article was prompted by the following incidents:
81.The incidents highlighted above are well-documented and not disputed. I give due weight to the contemporaneous documents and make the following findings:
82.The contents of the 1st Article reflected what had happened. There is nothing to suggest that the defendant did not believe in what he stated in the 1st Article concerning violence or that he was reckless as to whether such statements were true or not. 83.It is the defendant’s evidence that he was referring to the contractor for the renovation project (信豪) when he wrote the statement “二千多萬工程已是囊中之物，但見財化水”.[50] Nonetheless, he admitted that he intended the 1st Article to convey to the owners that the plaintiff would derive a personal benefit from the renovation project.[51] 84.He said he had no evidence of the plaintiff deriving personal benefit from the renovation project but he had his suspicion (“我覺得我倚賴嘅基礎唔薄弱，但係我證據係薄弱嘅，我係冇證據嘅。”[52]). He elaborated that:
85.He offered three bases for his suspicion:
86.The Court of Appeal held that the first basis (梁德戴個飯局) should be taken into account. It is the defendant’s evidence that:
87.As to the second basis (時間上好倉促), the defendant maintained that:
88.As to the third basis (唔係咁公開同埋唔係咁透明), the defendant stated in his witness statement:
89.The fact that the information and papers were made available to the owners before the 2012 AGM (as found by the DDJ in para 104 of DC Judgment) does not render the defendant’s evidence on his subjective suspicion unbelievable. 90.Given the defendant’s explanation (which I accept), there is no basis for the plaintiff to contend that the defendant did not believe in what he stated in the 1st Article concerning greed or that the defendant was reckless as to whether such statements were true or not. 91.At the re-trial, the plaintiff’s counsel also submitted in para 175 of his closing submissions that:
92.The defendant took a pleading objection. His counsel submitted that insofar as the plaintiff made a point that the defendant had published the articles with an ulterior motive not related to the affairs of the Estate, such other motive would need to be pleaded.[58] 93.The plaintiff’s counsel responded that:[59]
94.The defendant is right. There is a special rule for defamation actions in Order 82, rule 3(3) of the Rules of the District Court, Cap 336H, that:
95.As explained in para 30-005 of Gatley on Libel and Slander, 13th edition (2022):
96.In my view, the plea in the Amended Reply that the articles were published “with ulterior motive” is too generalized to satisfy Order 82, rule 3(3). 97.Moving on, the defendant complained in paras 2(k) to 2(n) of the Amended Defence that the plaintiff had “sent out around 2,000 letters to each and every flat and shops of the Estate to inform the latter of her commencement of these proceedings” and as a result of that “the Defendant lost his election of District Councilor”. That relates to alleged bad faith on the part of the plaintiff in using this action to sabotage the defendant’s election and has nothing to do with the state of mind of the defendant at the time of communication. 98.It is true that at the first trial:
99.It is not apparent from the record that the defendant had taken objection at the first trial to the plaintiff relying on an unpleaded purpose or that the DDJ was asked to make a ruling. 100.In any event, the Court of Final Appeal made it clear in para 21 of Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 that:
101.It is clear that the plaintiff should not be allowed to rely on any unpleaded purpose out of the evidence. 102.Turning to the plaintiff’s pleaded case that the defendant published the articles “out of spite or ill-will towards the Plaintiff”, Lord Diplock gave some examples of improper motives that destroy qualified privilege in p 150 F-G of Horrocks v Lowe:
103.That was followed up by Lord Reed NPJ in para 18 of Jonathan Lu where His Lordship said:
104.The Court of Appeal also reiterated in para 33 of CA Judgment that:
105.So, even if the plaintiff manages to point to some evidence of spite or ill will on the part of the defendant, she still has to prove that the defendant’s desire to communicate with the owners regarding the management and administration of the Estate played no significant part in his motives in order to succeed in proving express malice. That, she has failed to establish in this case. 106.All in all, I am not satisfied that the plaintiff has succeeded in proving malice on the part of the defendant and the defence of qualified privilege is not rebutted as regards the 1st Article. D2. The 2nd Article 107.The 2nd Article, dated 18 April 2013, was published by the defendant in the name of the IO to the owners of the Estate. A copy of the article is at [A1/30]. 108.This article is entitled “保安公司--辭職” and contains three parts.
109.The DDJ noted in para 132 of DC Judgment that there was a contemporaneous record of what had happened – Chevalier’s letter dated 1 August 2012 (at [C1/172 to 173]). Based on that letter, the DDJ found no impropriety on the part of the plaintiff as (a) the plaintiff was informed by Mr Wong of Chevalier that there was a legitimate reason for the reduction and she sought and relied on legal advice, (b) the reason for the revision of tender price was explained to the owners and (c) Centurion Facility was selected by the majority of the owners because they had been serving the Estate and there was no indication that the price reduction had any connection with the voting result.[66] 110.The defendant confirmed in his evidence that he had read Chevalier’s letter before publishing the 2nd Article. But he insisted that the plaintiff’s action was improper:
111.Given the defendant’s evidence, there is no basis for the plaintiff to contend that the defendant did not subjectively believe that the plaintiff had acted improperly or that he was reckless. As the Court of Appeal said in paras 39 and 75 of CA Judgment, in ordinary life people may leap to conclusions based on inadequate evidence. Despite the imperfection of the mental process, a positive believe that the conclusions they have reached are true is all that the law requires. 112.As regards the second part of the article, it is the defendant’s evidence that he did not intend it to mean that the plaintiff was being investigated by the ICAC:
113.The DDJ followed well-established authorities and adopted an objective approach in analyzing the meaning of the articles.[69] He excluded from consideration the subjective interpretation or understanding of the parties as to the meaning of the words used and came to his conclusion that the articles were defamatory.[70] But as the Court of Appeal reiterated in para 37 of CA Judgment, when it comes to deciding whether a communication was published maliciously in the context of qualified privilege, the communication has to be understood in the context as the defendant meant it to be understood. Based on the defendant’s subjective understanding that the 2nd Article did not implicate the plaintiff, there is nothing to show that the defendant did not subjectively believe that what he wrote was true or that he was reckless. 114.It may be said that the first and second parts of the article contained defamatory materials that went beyond what was necessary for the purpose of communicating with the owners about the resignation of Centurion Facility. Yet, as the Court of Appeal explained in paras 42 and 43 of CA Judgment,
115.In the present case, there is insufficient evidence to show that the defendant, though believing what he stated in the 2nd Article to be true, realised that it had nothing to do with communicating with the owners of the resignation of Centurion Facility, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite. Had it be so, he would have named the plaintiff in the second part of the article. 116.All in all, I am not satisfied that the defendant had abused the privileged occasion in publishing the 2nd Article. D3. The 3rd Article 117.The 3rd Article, dated 25 April 2013, was published by the defendant in the name of the IO to all the owners of the Estate. A copy of the article is at [A1/31]. 118.The article was concerned with what happened at the 7th meeting of the 2nd MC held on 20 April 2013. It contained five sections, with the following headings: “政治與黑勢力”, “克制令事件降溫”, “政治角力，永無寧日”, “是非謠言滿園飛” and “富怡和諧，需你我齊心打造”. 119.The DDJ found that a reasonable reader would understand it to mean that the plaintiff had connections with triads (黑勢力) and she mobilized those members to cause chaos and disruptions to meetings which required police intervention.[71] 120.The defendant said that he published the article in response to what he described as “史上最大嘅騷動”. He gave this account to the police:
121.He was informed by the police that triad element was involved in the incident:
122.It is the defendant’s evidence that the 3rd Article served two purposes: to inform the owners of what happened on 20 April 2013 and to counter the various rumors spread against the 2nd MC at that time.
123.In closing argument, the plaintiff’s counsel submitted that:
124.To start with, it is inaccurate for the plaintiff’s counsel to say that the defendant agreed that “his real intention was to snatch for the IO (真正用心係爭奪法團)”. The evidence is that:
So, the defendant was referring to “有外來不明力量協助爭奪法團” and not his own intention. 125.The defence counsel also pointed out that the plaintiff must have mixed up the evidence, as the 3rd Article made no reference to the plaintiff and the defendant only referred to her in his witness statement. 126.The defendant stated in his witness statement that the plaintiff was present during the incident (原告人及其同伙到場滋擾[76]). It is the plaintiff’s case that she could not have participated in the commotion as she was not in Hong Kong. The defendant confirmed at the re-trial that he did not in fact see the plaintiff and his witness statement was inaccurate. He said that if he had seen the plaintiff, he would have mentioned that in the article. 127.As to why he made a mistake in his witness statement, he explained:
128.I accept the defendant’s explanation of the misstatement in his witness statement. There is really nothing to show that the defendant did not believe that what he stated in the 3rd Article was true. If the defendant had been reckless or indifferent as suggested by the plaintiff, he could easily have mentioned the plaintiff in the article to drag her through the mud. 129.As to the defendant’s evidence as to his purposes in publishing this article:
They all related to the management and administration of the Estate. 130.The purpose suggested by the plaintiff (to secure chairmanship and to resist removal) would not have deprived the defendant of the protection of the privilege as it was still a communication between the IO or MC and the owners regarding the management and administration of the Estate. It is noted in para 18-008 of Gatley on Libel and Slander that:
131.All in all, the plaintiff has failed to rebut the defence of qualified privilege for the 3rd Article. D4. The 4th Article 132.The 4th Article, entitled “一夥人的出現，富怡就永無寧日”, was published by the defendant on 10 January 2014 in the name of the IO to the owners of the Estate. A copy of the article is at [A1/32]. 133.The article was found to be defamatory of the plaintiff in that:
134.The DDJ also said:
135.In closing argument, the plaintiff:
136.It is the defendant’s evidence that he published the article to communicate with the owners about what was happening at the time which had adversely affected the Estate. According to him:
137.The article began with a preamble about renovation (上任法團，管理法團事務一年，實事少幹，卻竟然在一眾反對聲中，硬推天價維修 ... 已經到口的肥肉溜走了，自此死心不息，一直千方百計搶奪法團，吵鬧生事). The defendant then wrote about the disruptions at the Estate (under the heading “橫行無忌”) and the rumors spread against the 2nd MC (under the heading “大話連篇”). It was suggested that there was a ploy to unseat the 2nd MC for personal benefits (有人為了搶奪法團，一年來（已經第三次）誤導業主簽名，說只是要求開會溝通，其實要改選法團 … 職業攪事份子，當然是為了爭奪法團。爭甚麼？當然是為了利益). The article ended with a plea to the owners to unite and pay attention to the affairs of the Estate to foil their attempt (請你與法團並肩一起，保衛自己財產；關心屋苑事務，同心協力建設富怡 … 絕不能讓別有用心的人，掌管富怡法團 ; 他們食髓知味，必定狠狠的斬殺富怡這塊肥肉，翻炒天價維修). 138.The defendant explained at the re-trial:
139.The Court of Appeal has said that all the relevant circumstances surrounding the making of the communication should be taken into account and that should include:
as they might have some bearing in shaping the defendant’s belief, intention and thinking at the time.[93] 140.Given the above, it was wrong for the plaintiff to contend that the renovation issue had subsided and the plaintiff was no longer campaigning for any position in the MC by the time of this article. 141.The defendant denied that the 4th Article was related to LDBM 268/2013. It is his evidence that:
142.There is no basis for me to disbelieve the defendant’s evidence as to his intention in publishing the article. Even if the Lands Tribunal case were the dominant reason, that would not deprive the defendant of the protection as the defendant would still be communicating with the owners regarding the management and administration of the Estate, given the order that the meeting was to “議決改選富怡花園業主立案法團管理委員會”. 143.All in all, the plaintiff has failed to prove express malice in relation to the 4th Article to rebut the defence of qualified privilege. D5. The 5th Article 144.The 5th Article was the minutes of the EGM of the IO held on 28 February 2014 (“2014 EGM”), a copy of which is at [A/33 to 37]. 145.The DDJ found the article defamatory of the plaintiff because “a reasonable reader would understand the 5th Article to mean that the plaintiff forced through the renovation in complete disregard of the owners’ best interest and objections, that she harassed and disturbed the owners, and that she attempted to seize control of the IO in order to benefit herself from the major renovation”. 146.The DDJ also found:
147.In closing argument, the plaintiff submitted that:
148.I begin by noting that the plaintiff’s pleaded claim in respect of this article is directed at both the words spoken by the defendant at the 2014 EGM and the minutes of the meeting.[97] 149.The 2014 EGM was held pursuant to the order of the Lands Tribunal made upon Tsang’s application in LDBM 268/2013.[98] According to section 6 of Schedule 3 to the Building Management Ordinance, Cap 344, the secretary of the management committee shall keep minutes of general meetings which shall be certified by the person presiding over the meeting as containing a true record of the proceedings. The certified minutes shall then be displayed in a prominent place within 28 days of the meeting. 150.As noted by the DDJ, there is no dispute that certain words were said by the defendant at the 2014 EGM and these words were reduced into writing in terms of the 5th Article and certified by the defendant.[99] The publication of the 5th Article in pursuance of the statutory scheme served to inform the owners of the issues and debates at the meeting.[100] It must be for the purpose of communicating with the owners regarding the management and administration of the Estate. 151.Turning to the spoken words, it is the defendant’s evidence that as the 2014 EGM drew closer, there were heightened activities in the Estate by the opposite camp to solicit support to unseat the 2nd MC. 152.The notices issued by the management office prior to the meeting is evidence of what had happened:
153.The defendant reiterated in re-examination at the re-trial that:
154.Despite the DDJ’s objective findings (para 146 above), I accept that the defendant subjectively believed at the time that the plaintiff’s involvement in the renovation project and the attempt to unseat the 2nd MC were connected. 155.The 2014 EGM was called for the sole purpose of recalling the 2nd MC (議決改選富怡花園業主立案法團管理委員會). Words uttered by the defendant at the meeting in defence of his chairmanship and/or the 2nd MC must fall within the purpose of communicating with the owners regarding the management and administration of the Estate.[104] 156.I specifically reject the plaintiff’s contention that it was within the defendant’s knowledge that the plaintiff was not running for election (para 147 above). The plaintiff’s name appeared on Tsang’s ticket (曾志強團隊名單) at [C5/1074] for the election. This is so notwithstanding the plaintiff’s denial that she had consented to join the election. As it turned out, no election was held because the motion to recall the 2nd MC was defeated (with 87.17% of the undivided shares of the Estate voted against re-election). 157.All in all, there is nothing to show that the defendant did not believe that what he said or wrote was true or that he was reckless. The plaintiff has failed to prove malice in the context of qualified privilege in the publication of the 5th Article. D6. The 6th Article 158.The 6th Article comprises:
159.It was the finding of the DDJ that the article was defamatory of the plaintiff in that:
160.In making his findings, the DDJ commented that:
161.Regarding this article, it is common ground that an annual general meeting of the IO was held on 23 April 2015 (“2015 AGM”). A copy of the minutes of the meeting with an attachment is at [C5/1075 to 1084]. As recorded in the minutes:
162.The defendant reiterated at the re-trial that the campaign to unseat the defendant or the 2nd MC had continued.[116] This is evidenced by:
163.The defendant also said:
164.Thus, despite the DDJ’s comments (based on an objective analysis), the defendant was merely responding to the issues brought up by the plaintiff at the 2015 AGM. The plaintiff and the defendant each rehearsed their arguments in the meeting. Given the discussion above, I accept that the defendant subjectively believed that the plaintiff had acted improperly. 165.After the 2015 AGM, there were requests from owners to disclose information about the matters discussed at the 2015 AGM and the 3rd MC issued the 6th Article pursuant to such requests. As stated in the covering letter:
I accept the defendant’s case that the 6th Article was issued at the requests of the owners to cover the discussion at the 2015 AGM. 166.The statement in the horizontal enclosure that the plaintiff “秘密串通供應商” referred to an incident before the 2014 EGM. According to the defendant:
167.Given all the above (which I accept), there is nothing to show that the defendant either did not believe that what he wrote in the 6th Article was true or was reckless as to the truth of what he wrote. 168.Much time was spent in the re-trial on the horizontal enclosure. It is not disputed that the horizontal enclosure was based on the attachment to the minutes of the 2015 AGM. According to the defendant:
169.The defence counsel have placed the horizontal enclosure and the attachment side-by-side in Exhibit P1 and identified their differences for easy reference (enumerated as #1 to #20). 170.The DDJ said that, “on a proper reading, the revisions reinforces rather than reduces the defamatory effect of the statements. The natural inference of making these changes (which aggravates the defamatory effect of the statements) is consistent with the fact that the defendant did not publish (at least) the 6th Article for a proper purpose.”[122] 171.The plaintiff’s counsel also submitted in closing argument that:
172.Out of the 20 changes identified on Exhibit P1, only 9 are significant in my view (marked #1 to #9 in the table below).
173.I accept that some changes refined the meaning (eg #3) and some served to moderate the tone (eg #4, #5, #8 and #9) as suggested by the defendant. 174.As regard #1, the defendant explained in his witness statement:
175.As regard #2, there were these exchanges in the defendant’s cross-examination at the first trial:
176.As regard #6, the defendant said under cross-examination:
177.As regard #7, the defendant explained in his witness statement that:
His counsel submitted that the change from “大升” to “勁升” was to reflect the degree of discrepancy which was about 3 to 4 times of the HK$40,000 claimed in the plaintiff’s letter dated 21 April 2012.[127] 178.The DDJ’s comment was objective in nature, as it was based on his “proper reading” of the statements and the “natural inference” he made of the changes. Having regard to the defendant’s explanations (which reveal his subjective thoughts at the time), I accept the defendant’s case that he intended to make those changes to refine the meaning and to moderate the tone. Had the defendant intended to aggravate the defamatory effect, he would not have deleted the sharp criticisms at #4, #5 and #9. As reminded by the Court of Appeal, “Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege…”.[128] 179.As to the suggestions of the plaintiff’s counsel that the defendant issued the article to “retain his throne to the chairmanship” or “assist his election in the District Council”, I repeat the discussions in para 130 and paras 91 to 101 above. 180.All in all, the plaintiff has failed to prove malice in the context of qualified privilege in the publication of the 6th Article. E. Conclusion 181.By reason of the above, the plaintiff has failed to prove malice on the part of the defendant to rebut the defence of qualified privilege for all six articles. The plaintiff’s claim is therefore dismissed. 182.Costs normally follow the event. I make an order nisi that the plaintiff do pay the defendant’s costs of this re-trial with certificate for one counsel to be taxed if not agreed. 183.There is one more matter to deal with. In para 93 of CA Judgment, the Court of Appeal said:
184.The plaintiff took an issue approach. Her counsel submitted that since the defendant had lost 5.5 issues out of the 6 issues enumerated in the Statement of Issues for the first trial, the costs of the first trial should be apportioned on that basis. 185.On the other hand, the defendant suggested apportionment on time basis: 55% on the underlying events; 15% on justification; 15% on honest comment; and 15% on qualified privilege. 186.I basically agree with the defendant that it would be fairer to apportion on a time basis as the time taken to debate each issue was different. I accept the time apportionment suggested by the defendant. Both sides have to an extent won and lost in terms of establishing the underlying events. Taking a broad-brush approach and having regard to the result of the re-trial, I order the plaintiff to pay 50% of the defendant’s costs of the first trial with certificate for counsel to be taxed if not agreed.
Mr Andrew Mak and Mr Abel Lam, instructed by K.B. Chau & Co, for the plaintiff Ms Audrey Eu SC leading Mr Ken To and Mr Matthew Choi, instructed by Liu, Chan & Lam, for the defendant [2] [2021] 5 HKLRD 684, [2021] HKCA 1778. [3] Para 68 of DC Judgment. [4] Para 124 of DC Judgment. [5] Paras 125-130 of DC Judgment. [7] They were not the plaintiff’s trial counsel in the first trial. [8] Mr To represented the defendant in the first trial. [9] Para 2 of the order dated 23 January 2024 at [A2/323-1]. [10] Para 2 of D’s Note of Non-Binding Findings dated 8 April 2024. [11] Section C6 of D’s closing submissions. [12] Section C5 of D’s closing submissions. [13] Para 22 of P’s closing submissions. [14] Para 15 of P’s opening submissions. [15] Para 54 of D’s closing submissions. [16] Para 69 of CA Judgment. [17] Para 70 of CA Judgment. [18] Paras 72-73 of CA Judgment. [19] Paras 69, 72-73 of CA Judgment. [20] Para 2 and footnote 9 of CA Judgment. [21] Para 29 of CA Judgment. [22] Para 37 of CA Judgment. [23] Para 76 of CA Judgment. [24] Paras 15(d), 25(d), 33(d), 41(d), 49(d) and 60(d) of the Amended Defence. [25] Paras 14, 23, 30, 37, 45 and 53 of the Amended Reply. [26] Para 68 of DC Judgment and para 32 of CA Judgment. [27] Para 30 of CA Judgment. [28] Para 124 of DC Judgment. [29] Para 72 of CA Judgment. [30] The reminder of the Court of Appeal in para 36 of CA judgment that “knowledge of falsity, or indifference as to truth or falsity, is not itself the test of malice: it is merely evidence from which an improper motive can often, but not always, be inferred” is reiterated. [31] In para 22 of Jonathan Lu, the Court of Final Appeal said: “‘Recklessness’, in this context, is to be understood in the sense described by Lord Diplock in Horrocks v Lowe: that is to say, ‘without considering or caring whether it be true or not’ (at 150; see also 151, 152 and 153).” [32] Para 40 of D’s closing submissions. [33] [D2/203 Q-T]. [34] [D2/264/L]. [35] Para 116 of P’s closing submissions. [36] [A2/318]. [37] Paras 48-51 of the Reasons at [A2/285-317]. [38] [D1/201]. [39] [D1/202]. [40] At [B/78/68], the defendant stated, “後來管委會成員葛清珠女士告知我，原告人雖然在7月22日大會上棄選，但在該會議結束後，她便立即於屋苑內開街站收集業戶簽署，希望發動特別業主大會推翻在2012年7月22日大會上獲選的第二屆管委會。” (underline added). [41] [D3/507 B-G]. [42] Para 9 of DC Judgment. [43] See para 99(a) of the defendant’s witness statement at [B/99] and his cross-examination at [D2/264 L]. [44] Para 57(3) of DC Judgment. [45] Para 117(3) of DC Judgment. [46] Para 57(4) of DC Judgment. [47] The transcript of hearing on 19 April 2024, p 25 at Q-T. [48] [D2/290 H-M]. [49] [B/114/22(a)]. [50] [D2/292 C-L]. [51] [D2/293 N-T]. [52] [D2/297 M-S]. [53] [D2/296 F-L]. [54] [D2/295 I-M]. [55] [D2/286 K-R]. [56] [D2/271 H-J]. [57] [B/70/45, 46 & 52]. [58] Para 35(c) of D’s speaking note for closing submissions. See also section J of D’s closing submissions. [59] Para 91 of P’s closing submissions. [60] [D2/394 I-U]. [61] Para 105 of P’s closing submissions at [A3/385]. [62] [D3/508 G-L]. [63] Para 58(2) of DC Judgment. [64] Para 58(2) of DC Judgment. [65] Para 58(3) of DC Judgment. [66] Para 135 of DC Judgment. [67] [D2/315 M-V]. [68] [D2/312 M-V]. [69] Para 54 of DC Judgment. [70] Para 55 of DC Judgment. [71] Para 59(2) of DC Judgment. [72] [B/88/79(g)]. [73] The transcript of hearing on 22 April 2024, p 89 at C-E. [74] Para 190 of P’s closing submissions. [75] The transcript of hearing on 22 April 2024, p 96 at H-Q. [76] [B/88/79(g)]. [77] The transcript of hearing on 22 April 2024, at p 91V-92B. [78] Para 60(2) of DC Judgment. [79] Para 60(3) of DC Judgment. [80] Para 60(4) of DC Judgment. [81] Para 158 of DC Judgment. [82] Para 160 of DC Judgment. [83] Paras 192 & 194 of P’s closing submissions. [84] Para 193 of P’s closing submissions. [85] [B/89/79(h)]. [86] [C5/1006]. [87] [B/89/79(i)] & [C5/1001-1002]. [88] [B/89/79(i)]. [89] [C5/1094]. [90] [C5/1093]. [91] [B/89/79(i)]. [92] The transcript of hearing on 22 April 2024, p 77 at C-F. [93] Paras 74 & 52(1), (3) & (5) of the CA Judgment. [94] Para 117(1) of DC Judgment. [95] Para 117(3) of DC Judgment. [96] Para 126 of DC Judgment. [97] Paras 24-26 of the Statement of Claim at [A/16-18]. [98] The order is at [C1/49]. [99] Para 45 of DC Judgment. [100] Para 72 of D’s speaking notes for closing submissions. [101] The notice dated 6 February 2014 at [C5/1105]. [102] The notice dated 25 February 2014 at [C5/1106]. [103] The transcript of hearing on 23 April 2024, p 185 at M-S. [104] See para 18-008 of Gatley on Libel and Slander quoted above. [105] Para 62(2) of DC Judgment. [106] Para 62(3) of DC Judgment. [107] Para 126 of DC Judgment. [108] Para 117(2) of DC Judgment. [109] Para 117(4) of DC Judgment. [110] Para 155 of DC Judgment. [111] [C5/1076]. [112] [C5/1076]. The “附件” mentioned therein is the attachment to the minutes of the 2015 AGM mentioned in para 164 below. [113] [C5/1079]. [114] [C5/1074]. [115] Para 52(3) & (5) of CA Judgment. [116] See also Ma’s evidence at [D2/419K-420H]. [117] [C5/1107]. [118] [C5/1109]. [119] The transcript of hearing on 23 April 2024, p 149 at G-I. [120] [B/101/99(j)]. [121] The transcript of hearing on 23 April 2024, p 149 at C-F. [122] Paras 128 and 129 of DC Judgment. [123] [B/119/36]. [124] [D2/230 I-N]. [125] [D3/448 E-G]. [126] [B/85/76(f)]. [127] Para 447 of D’s closing submissions. [128] Para 41 of CA Judgment. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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