Ho Kwan Yiu v. Dennis Kwok Wing Hang and Others

HCA 1997/2019

[2025] HKCFI 2788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1997 OF 2019

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BETWEEN

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DECISION

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Introduction

1.There are two summonses before the Court which are of immediate relevance. One is taken out by the plaintiff (“P”) for amendment of his Statement of Claim (the “Amendment Summons”). The other one is taken out by the 2^nd defendant (“D2”, and the “Stay Summons”), for an order that should the Amendment Summons be allowed, P’s claim against him be adjourned sine die with liberty to restore, pending the determination of D2’s criminal appeal to the Court of Appeal against his conviction and sentence in DCCC 1106/2020 and DCCC 1132/2022 (the “Conviction and Sentence”).

2.There are 2 previous decisions which are relevant to the present applications. One is the Decision of Queeny Au-Yeung J in this action which Her Ladyship handed down on 18 March 2022[1] (“Au-Yeung J Decision”). The other one is the Decision of this Court in HCA 2127/2019 (“HCA 2127”) handed down on 16 April 2025[2] (the “2127 Decision”). I shall refer to them as appropriate.

Parties’ cases as pleaded

3.For background and the material facts of the case, I refer to Au-Yeung J Decision whereby Her Ladyship granted parties leave to have the case conducted before a jury. I use and adopt in this Decision the same terms as used by Queeny Au-Yeung J in her Decision.

4.The material events took place against the backdrop of the riots and upheavals that had taken place since about June 2019. The immediate background was the 21 July Incident. The defamatory words (the “Offending Phrases”) are pleaded to be uttered on 12 August 2019 when P and the defendants (“Ds”) attended a demonstration of the Specialized Crowd Management Vehicles at the Police Tactical Unit Headquarters, Fanling. For ease of reference, I cite and reproduce here §§15 to 19 of Au-Yeung J Decision:

15. The plaintiff pleaded 4 sets of offending phrases against the defendants.

(1) “何君堯，黑社會” [English translation: “Ho Kwan Yiu, Triad”] (“the 1^st Offending Phrase”), against all defendants;

(2) “何君堯, 7.21 罪魁禍首” [English translation: “Junius Ho – Mastermind behind the 7.21 Incident”] (“the 2^nd Offending Phrase”), against D1 and D2 only;

(3) “你夠膽講你唔識D黑社會同埋叫D黑社會做野?” [English translation: “Do you dare say that you do not know the triads and that you did not instruct them to do stuff?”] (“the 3^rd Offending Phrase”), against D1 only; and

“何君堯你是香港第一人渣” [English translation: “Junius Ho you are the No.1 Scum in Hong Kong”] (“the 4^th Offending Phrase”), against D2 only.

16. D1 and D3 do not dispute the accuracy of the 1^st and 3^rd Offending Phrases, which had been video recorded.

17. D2 claims that he did not utter the 1^st and 2^nd Offending Phrases; the 3^rd Offending Phrase does not concern him; and disputes the accuracy of the 4^th Offending Phrase.

18. The defendants put heavy reliance on the series of events which took place before and after the 21 July Incident and various controversial political protests which took place in the same year. The defence of D1 and D3 relies on close to 100 reports and external sources.

19. In issue is whether the offending phrases are defamatory in nature in lowering the plaintiff’s reputation in the minds of the public, given the plaintiff’s image and reputation in the public eye. However, the main defences are justification and a Reynolds’ defence.

5.In relation to P’s claim, and on top of the above summary, 2 sections of the Statement of Claim should be noted:

(a) Section H thereof, wherein P pleads malice and ulterior motive against Ds. In particular, at §20(2) thereof, P pleads that:

[Ds] knew or ought to have known that there is no evidence tying [P] to triad organizations, and that [P] was not an organizer of the 21 July Incident.

(b) Section I thereof, where P pleads and seeks against Ds aggravated and exemplary damages, on the basis, inter alia and as pleaded in §21(6), that:

the utterance of the Offending Phrases was made maliciously knowing the same to be defamatory and false, and/or recklessly made without regard to their truth or falsity.

The proposed amendment

6.I refer to the 2127 Decision. P is the defendant there, and D2 the plaintiff. For the reasons stated therein, I granted P leave to re-amend his Amended Defence to plead and rely on D2’s Conviction and Sentence.

7.By the present Amendment Summons, P seeks leave to make various amendments to his Statement of claim. The most relevant ones for the present purpose are those proposed in §§21A and 21B of the proposed Amended Statement of Claim. They again relate to the Conviction and Sentence. The effects of those proposed amendments are materially the same as those which I allowed in HCA 2127.

8.For the present purpose, §21B(6) of the proposed Amended Statement of Claim should be noted:

[P] will rely on at trial the above Reasons for Verdict and/or Reasons for Sentence to demonstrate that the Offending Phrases were uttered in bad faith and that there was a lack of honest belief on the part of [D2] and that the Offending Phrases were said without regard to the truth, which has now been pronounced by the Court having gone through a trial. Paragraphs 21A and 21B hereinabove are repeated.

9.It is quite clear hence that P is seeking to rely on the Conviction and Sentence to support his plea of malice and ulterior motive against D2, and his claim for aggravated damages against him.

10.Simply as a drafting issue, I raised with Mr Ho, solicitor for P, as to whether §21B(6) of the proposed Amended Statement of Claim should be a separate §21C. Mr Ho agreed.

The other defendants’ stances

11.D1 is no longer represented, and did not appear.

12.D3 is neutral to Amendment Summons and the Stay Summons. At §17(iii) of his submissions, Mr Jun Lee, counsel for D3 realistically says these:

Although D2’s [Stay Summons] technically seeks only an adjournment of P’s claim “against D2” (and not D1 or D3), if D2’s [Stay Summons] is allowed, it does not seem to make sense for P’s claim against D1 and D3 to be tried whilst P’s claim against D2 is adjourned and then for there to be another, subsequent jury trial on the same/similar evidence. As such, D3 submits that if D2’s [Stay Summons] is allowed, the entire action against all Ds, and not just D2, should be adjourned.

13.In my view, that must be right.

P’s Amendment Summons

14.The reasons which I gave for allowing P’s amendments in HCA 2127 are mostly applicable here. Similar to the stance he adopted in HCA 2127, Mr Erik Shum does not put up much opposition against the Amendment Summons.

15.The proposed amendments are obviously relevant to P’s claim and D2’s defence. The trial has not been set down, and is currently at the CMC stage. I see no basis to deny P’s desire to rely on the Conviction.

The Stay Summons

16.The reasons I gave for staying HCA 2127 again are mostly applicable here. The relevance of the Conviction and Sentence, the effects of section 64 of the Evidence Ordinance (Cap 8), and the case management considerations arising are in particular applicable. There are further 3 added matters here which are relevant, which further weigh in favor of a stay. Firstly, the present trial will be held before jury. Great care should be given to the type of evidence that should be permitted to be placed before them. Secondly, I repeat the observations made above that this trial is currently still at the CMC stage. No adjournment of any milestone date will be involved. Thirdly, there are 3 defendants involved in this case. In HCA 2127, there is only one. More costs and time will hence be wasted if no stay were granted at this stage but if D2’s appeal ultimately allowed, thereby requiring substantial reversal and redoing of pleadings and interlocutory preparation.

Disposition

17.For the following reasons, I allow the Amendment Summons. I also grant P leave to tidy up the drafting issue which I have mentioned above. In respect of the Stay Summons, subject to the substitution of the words “the Plaintiff’s claim against the 2^nd Defendant be adjourned sine die …” with “the Plaintiff’s entire claim be stayed”, I make an order staying the action herein, in terms of §1 of the Stay Summons as modified.

18.I state and clarify, for avoidance of doubt, that whilst I have allowed the Amendment Summons, given the stay consequential upon this Court allowing the Stay Summons, there would not be any need on the part of any of the Ds to file any consequential amendment pleadings. That would only become necessary upon the lifting of the stay.

Costs

19.On costs, I am of the view that both summonses are justifiably taken out. I order that costs in respect of both summonses, including those of this hearing, be in the cause of the trial, with certificate for counsel. This also accords with parties’ joint view.

Mr Ho Jun-wang, Conrad of K.C. Ho & Fong, for the Plaintiff

The 1^st Defendant was not represented, and did not appear

Mr Erik Shum instructed by Ho Tse Wai & Partners, for the 2^nd Defendant

Mr Jun Lee instructed by John C H Suen & Co, for the 3^rd Defendant