Zhang Xianghui v. Amax and Associates Ltd

DCCJ 5624/2023

[2026] HKDC 748

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5624 OF 2023

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.This is the assessment of damages for a defamation claim after the defence was struck out and judgment on liability was entered against the defendant for failing to comply with an “unless” order made by Deputy District Judge Alfred Cheng on 13 October 2025 (the “Unless Order”) which required the defendant to inform the court and the plaintiff in writing of its intention to attend the trial of the captioned proceedings which was originally fixed to commence on 24 November 2025.

B. THE ASSESSMENT HEARING

2.The plaintiff’s solicitors have filed an affirmation of service dated 23 October 2025 which showed that service of the Unless Order (which contained the hearing date of the present hearing) was (amongst others) effected on defendant at its registered address on 22 October 2025 and copies of the same were sent to the defendant by fax and by email. Hence, I am satisfied that the defendant was given sufficient notice of the present hearing and that it is appropriate for the court to proceed notwithstanding the defendant’s absence.

3.At the hearing, the plaintiff only called Mr Gu Chuan (谷川) (“Mr Gu”), Chief Executive Officer of Zhongrong PT Securities Limited (“Zhongrong PT”) to give evidence. Although the plaintiff produced her own witness statement. She did not attend court to give evidence and confirm the contents of her statement. As fairly accepted by Mr Ng, counsel for the plaintiff, the witness statement of the plaintiff is therefore inadmissible.

C. THE BACKGROUND

4.Having considered the evidence before me, I am satisfied that the plaintiff has discharged her onus to prove the matters set out below.

5.The plaintiff is a highly experienced senior banker in the financial industry. She is a director of Zhongrong PT and the vice chairman and director of Zhongrong International Trust Company Limited (“Zhongrong Beijing”) which part of the Zhongrong group of companies that is engaged in the business of providing financial and securities services.

6.The plaintiff is married to Mr Lu Zhiqiang (“Mr Lu”) who was, at the material time, a director of My First Gym Co, Limited (“Mygym”), a company engaged in the provision of physical education to children.

7.On or about 20 July 2022, the defendant sent a letter to Zhongrong PT’s registered address for the attention of the plaintiff and Mr Lu (the “20/7/22 Letter”) enclosing, amongst others: (i) two purported outstanding fee notes in the total sum of HK$76,959 being the costs of certain renovation works purportedly carried out by the defendant for Mygym; and (ii) a draft letter addressed to Mr Leung Chun Ying (“Mr CY Leung”), the former Chief Executive of HKSAR and currently a Vice Chairman of the National Committee of the Chinese People’s Political Consultative Conference complaining about the non-payment of the defendant’s invoices (the “Draft Letter”). It is alleged in the draft letter that:-

“在工程期間，我方曾多次到「中融平和證券有限公司」（下述簡稱-中融平和）的中環辦事處與其員工進行會議，其職員並曾透露「中融平和」駐港副董事長-張向暉女士是其幕後主事人，而盧志强先生是張女士的丈夫；並了解到駐港高層薪酬並不高，怎可能支付數百萬裝修費用及高品 [sic] 昂的營運費，故此有理由相信張向暉女士及中融均知悉及參與其中。”

“原先我公司對内地公司付款存有介心[1]，因爲根據過往事例，差不多一定用盡各種理由逃避支付尾數，但經接觸後，感覺盧志強先生及張向暉女士兩夫婦態度誠懇，並知道内地公司為了避免影響中港關係，定必要遵守香港法律；但無奈還是被拖欠尾數，至今已超過兩年多。”

8.The defendant also sent letters dated 26 August 2022 to 6 members of the senior management of Zhongrong Beijing (the “26/8/22 Letters”) which contain the following statements similar to those in the Draft Letter:-

“在工程期間，我方曾多次到「ZIWML」[2]的中環辦事處與其董事總經理馮小姐及助手霏霏小姐進行會議，其職員並曾透露「中融集團」駐港副董事長-張向暉女士是其他分公司及「Mygym」幕後主事人，而盧志强先生與張女士則是夫婦關係；據了解駐港高層薪酬不高，怎可能支付數百萬裝修費用及高昂的營運費，故此有理由相信張向暉女士及「中融集團」均知悉及參與其中。”

“我公司曾無數次發函催促「Mygym」儘快清付工程餘額：合計HK76,959.00，遺憾全無音訊；在兩年追討過後，該公司才污蔑指責我方，尚有裝修損壞未完成，而逃避支付尾數。”

“…張向暉女士動用相信是貴公司的律師團隊，從合約中找到對其有利的仲裁條款，拖延付款。”

9.Enclosed to the 26/8/22 Letters is a letter from the defendant to Mr CY Leung dated 19 August 2022 (“19/8/22 Letter”, together with the Draft Letter and the 26/8/22 Letters, the “Letters”) which in substance repeats the relevant statements made in the Draft Letter and the 26/8/22 Letters as quoted above.

D. ORDINARY AND NATURAL MEANING OF THE STATEMENTS

10.In light of the judgment against the defendant on liability, it cannot be disputed that the statements made by the defendant in the Letters as quoted in §§7-8 above are defamatory (the “Statements”). Nevertheless, I still need to consider the meaning of the Statements for the purpose of assessment of damages.

11.Although the same words in a document may bear different meaning to different readers due to their different background, knowledge, experience and temperament, for the purpose of defamation litigation, the words in questions have only one single meaning and the task of the court is to determine what that single meaning is by looking at the natural and ordinary meaning of the words from the eyes of a fictitious ordinary reader, see: Multi-Winner Investments Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at §42.

12.The relevant principles on finding the natural and ordinary meaning were summarized by Jeremy Poon J (as the CJHC then was) in Lee Ching v Lau May Ming [2007] 3 HKLRD 623 at §39-41:-

(1) The term “natural and ordinary” means what reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them. The question to be asked is what would the words convey to the mind of the ordinary, reasonable and fair-minded reader?

(2) The natural and ordinary meaning may either be the literal meaning or it may be implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond the general knowledge but is a meaning which is capable of being detected in the language used can be part of the natural and ordinary meaning. It may therefore include implications or inference which a reasonable reader may draw, guided by general rather than special knowledge and not to be fettered by any strict legal rules of construction.

(3) In discerning the ordinary and natural meaning, it is also necessary to consider the context of the words and the persons to whom the communications were made.

13.Having considered the Statements together in the relevant context, I am of the view that the natural and ordinary meaning of the Statements is as follows:-

(1) The plaintiff was the person who was in control and management of Mygym.

(2) The plaintiff had caused Mygym to delay payment of the outstanding renovation costs for over two years and had caused Mygym to come up with false excuses to avoid making payment.

(3) The plaintiff had made use of Zhongrong PT’s legal team to rely on the arbitration clause in the contract to delay payment.

(4) The plaintiff could not afford the renovation and operating costs of Mygym which amount to a few million dollars (therefore implying that the Zhongrong group was the actual owner of Mygym).

E. RELIEFS

14.At the hearing, Mr Ng confirmed with me that the plaintiff only seeks the following reliefs:-

(1) general and aggravated damages; and

(2) an injunction to restrain the defendant from publishing the Statements.

E1. General Damages

15.It is trite that the award of general damages in defamation serves three purposes, namely to: (i) compensate a plaintiff for the damage to his reputation; (ii) vindicate his good name; and (iii) console him for the hurt and distress suffered, see: Oriental Daily Publisher Limited v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 at §35 per Ribeiro PJ; Chu Siu Kuk Yuen v Apple Daily Ltd & Others [2002] 1 HKLRD 1 at §62 per Yuen J (as she then was).

16.As accepted by Mr Ng, since the plaintiff did not attend court to confirm the truth and accuracy of her witness statement, no weight should be given to her evidence especially concerning the particular distress that she had suffered as a result of the Statements[3]. However, I accept the submission of Mr Ng that the absence of evidence from the plaintiff is not necessarily fatal to a claim for general damages. The court is still in a position to assess general damages based on the evidence available notwithstanding the absence of evidence from the plaintiff as to how her feelings and reputation were injured.

17.On the assessment of quantum:-

(1) Damages are described to be “at large”, meaning that it is not possible to rely on any mechanical, arithmetical or objective formula.

(2) Sums awarded by the court in similar cases serve as a useful guide as long as the court bears in mind that the circumstances of each individual case are inevitably different.

See: Blakeney-Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 at §170-172[4].

18.In seeking a sum of at least $300,000, Mr Ng relied on the following cases which were said to be comparable and relevant:-

(1) In Yu Sau Ning Homer v Wong Wan Keung [2020] HKDC 40, Her Honour Winnie Tsui (as she then was) awarded a total sum of $600,000 for two letters containing serious allegations of gross incompetence and unethical and illegal conduct in a sensational and inflammatory manner against the chairman of the management committee of a building which were circulated to 250 units of the building.

(2) In Drummond v Kwaku [2000] 1 HKLRD 604, Cheung J (as he then was), awarded $300,000 in the counterclaim against the plaintiff for issuing a series of letters and emails which were circulated to senior management and staff of a university where allegations were made against the defendant as department head including: (i) serious mismanagement; (ii) abuse and exploitation of staff members; (iii) misappropriation of university property for personal gain.

(3) In Chan Iu Seng v Ko Choi Hin & Ors HCA 2901 & 2935/2004 (unreported, 28 January 2010), Chu J (as she then was), awarded $300,000 for a circular sent to about 6,000 members of a clan association that made serious attacks against the plaintiffs in their handling of the affairs of the association, going as far as to claim that the plaintiffs had tried to cause the death of the chairman for financial gain (謀財害命).

(4) In Mok Kam Kwai v Lam Mo Fat HCA 1868/2010 (unreported, 6 March 2014), general damages in the sum of $400,000 were awarded by Chung J for banners erected in a village in the New Territories that contained allegations of serious dereliction of duties and corruption against the chairman of a rural committee. The banners were erected in public places within the village and were seen by a substantial number of people.

(5) In Lo Sam Shing v Li Fong HCA 1803/2011 (unreported, 14 March 2014), the defendant was ordered to pay $200,000 in general damages for sending a letter which accused the plaintiff for lack of honesty, integrity and competence in discharging his duties as a district councilor in midst of the plaintiff’s campaign for a District Council election. The letter was circulated to about 25 individuals who were local community leaders.

(6) In Lee Ching v Lau May Ming [2007] 3 HKLRD 623, the defendant was the chairman of a charity with about 200 members. He sent an open letter to members accusing the plaintiffs of (amongst others): (i) failing to discharge their duties as members of certain committees within the charity; (ii) illegally plotting to seize power; and (iii) spreading malicious slanders which threatened the charity’s coherence and quality of service. Jeremy Poon J (as the CJHC then was), awarded general damages in the sum of $200,000.

19.Having considered all the circumstances of the present case, and after taking into account inflation, I consider that an award of $200,000 is appropriate.

20.First, without in anyway undermining the seriousness of the defamatory Statements or the resulting injury to the feeling of the plaintiff, the gravity of libel in the present case is, in my view, somewhat less serious compared to the cases cited above:-

(1) There is no outright allegation of commission of serious illegal or criminal conduct. Rather, the general theme of the Statements is that the plaintiff had unethically relied upon legal technicalities and false excuses to avoid taking responsibility for settling the alleged debt to the defendant.

(2) The defendant had not resorted to any significant use of sensational or inflammatory language in the Statements.

21.Second, the circulation of the Statements was limited to mainly: (i) 6 members of the senior management team of Zhongrong Beijing; (ii) Mr Gu; and (iii) a limited number of staff in the Zhongrong group who had handled the correspondence as part of daily administration; and (iv) Mr CY Leung.

22.Relying on Chan Shung Fai v Chan Kam Wah [2023] HKDC 499 and Downtex v Flatley [2004] EWHC 333 QB, Mr Ng argued that publication to a relatively small number of persons who were already in a business or professional relationship with the claimant may be as serious or worse than a wider publication to persons who were unlikely to contemplate such relationship with the claimant.

23.Whilst I have no quarrel with the above proposition as a matter of general principle, it is important that each case has to be considered on its own facts.

24.As explained by Ribeiro PJ in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 at §§62-63 and 81, evidence that the recipients of the defamatory communication are inclined to disbelieve the veracity of the allegations is plainly a matter which is material for the purpose of assessment of damages.

25.In the present case:-

(1) The Statements contained allegations that Zhongrong PT was involved in the operation of the Mygym business. As a matter of common sense, it is more likely than not that members of the senior management team of Zhongrong Beijing would have little difficulty in ascertaining the accuracy of the Statements (e.g. whether Mygym was owned by Zhongrong PT). To the extent that any of the Statements was found to be false, members of the senior management were unlikely to give much credence (if any) to the allegations in the Statements which came from a stranger.

(2) There is no evidence that other staff members of the administration department would have paid much attention to the Statements as it is likely that their involvement was limited to the routine handling of correspondence and directing them to the relevant recipients. In Mr Gu’s case, he informed the plaintiff immediately upon receiving the 20/7/22 Letter. As confirmed in his oral evidence, Mr Gu knew that Mygym was not related to Zhongrong PT. There is also no evidence from him that he believed the allegations at all or that the plaintiff’s standing in the eyes of Mr Gu was lowered in any way.

(3) In the case of Mr CY Leung, in the absence of any direct evidence, I consider it unlikely that Mr CY Leung, as a prominent public figure with no apparent connection or relationship with the Zhongrong group or the plaintiff, would pay any serious attention to the Statements.

E2. Aggravated Damages

26.In addition to general damages, the plaintiff also seeks aggravated damages for the following reasons:-

(1) The defamatory statements were made by the defendant maliciously[5], or with the dominant intention to insult the plaintiff, knowing the contents to be false or being reckless as to their veracity.

(2) The defendant did not retract the defamatory Statements but had continued to advance a defence of justification in the present action.

27.The general basis for awarding aggravated damages is described in Gatley on Libel and Slander (13^th Ed, ) at §10-016 as follows:-

“In assessing damages the court is entitled to look at the whole conduct of the defendant "from the time the libel was published down to the time they give their verdict.” The general conduct of the defendant, his conduct of the case, and his state of mind (or how it is perceived by the claimant) insofar as it affects the feelings of the claimant are all matters which the claimant may rely on as aggravating the damages in so far as they bear on the injury to him.”

28.In his supplementary written submissions, Mr Ng had fairly drawn my attention to §126 of Ribeiro PJ’s judgment in Oriental Daily which seemed to suggest that aggravated damages could only be awarded for the defendant’s post-publication conduct (and apparently contradicted the above passage from Gatley):-

“As we have seen, the aim of aggravated damages is to compensate for increased injury to feelings caused by the defendant’s post-publication conduct. Only two matters are relied on as grounding this claim, namely, “stubborn persistence” in defending the action and the absence of an apology” (emphasis added).

29.In my view, taken in its proper context, the above passage was not intended to exclude the motive of the defendant at the time of publication as a relevant factor in assessing aggravated damages.

30.First, as noted in the same paragraph, the plaintiffs in Oriental Daily only relied upon post-publication conduct for grounding a claim for aggravated damages. Therefore, the court was not concerned with, and need not consider, the relevance of the defendant’s state of mind at the time of publication.

31.Second, the learned Judge had in fact (at §113) cited with approval a passage from McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104G where Pearson LJ (as he then was) provided examples of aggravating conduct. It is evident from the same passage that conduct which justifies an award of aggravated damages is not limited to post-publication conduct but includes any conduct which would increase the injury to the plaintiff’s feelings:-

“They may also include the natural injury to his feelings – the natural grief and distress which he may have felt at having been spoken of in defamatory terms, and if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff’s pride and self-confidence, those are proper elements to be taken into account in a case where the damages are at large.”

32.In his concurring judgment in McCarey, Diplock LJ (as he then was) also highlighted (at 107E-F) that in considering the award of aggravated damages, the court may take into account the motive of the defendant at the time of publication:-

“In an action for defamation, the wrongful act is damage to the plaintiff’s reputation. The injuries that he sustains may be classified under two heads:…(2) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which or the motives with which the statement was made or persisted in…” (emphasis added).

33.Third, there are a number of authorities in Hong Kong where the court held that malice at the time of publication could form the basis of an award of aggravated damages, see: Lee Ching at §213; Jigme Tsewang Athoup v Brightec Ltd [2015] 1 HKC 566 at §115; Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at §114; Lo Sam Shing v Li Fong CACV 71/2014 (unreported, 23 November 2015) at §§60-63.

34.Notwithstanding the above, while I am prepared to accept that, as a matter of law, the court may properly take into account the defendant’s motive at the time of publication for the purpose of determining whether to award aggravated damages, such an award is not justified on the facts of this case:-

(1) In the circumstances, I am not satisfied that the predominant motive of the defendant was to insult or injure the plaintiff. Reading the Letters as a whole, it is clear that the defendant’s primary motivation for sending the letters was to obtain payment for the services rendered by the defendant concerning the Mygym business.

(2) I am also not satisfied that the defamatory Statements were made by the defendant without (i) any factual basis whatsoever; (ii) or any belief as to their veracity. In the course of chasing for payment, the defendant had communicated with Ms Alice Fong, a former Managing Director of Zhongrong International Wealth Management Limited[6]. In an instant message from Ms Fong sent on or about 2 June 2022[7], Ms Fong told Mr Mark Li of the defendant that she believed that the plaintiff was the actual boss of Mygym.

35.Further, I also do not consider it appropriate to award aggravated damages based on the defendant’s lack of apology and its decision to maintain a defence of justification in circumstances of the present case. Although such conduct may sometimes justify an award of aggravated damages, see: Mak Shiu Tong v Yue Kwok Ying & Anor (2004) 7 HKCFAR 228 at §44, this is not an inflexible rule. As Lord Neuberger NPJ said in Blakeney-Williams v Cathay Pacific Airways Ltd (2012) 15 HKCFAR 261 at §§105-106[8]:-

(1) It was wrong in principle to award aggravated damages solely because the defendant had decided to raise a defence of justification where the defence was raised in good faith and run in a reasonable manner even where the defence might be regarded as not merely wrong but also weak.

(2) Similarly, the absence of apology in such a case did not justify an award of aggravated damages as it would undermine the defence which was raised in good faith.

36.As I have found above, I do not accept that the defendant’s publication of the Statements was entirely devoid of any factual basis. I also do not accept that the justification defence was advanced in bad faith.

37.Finally and in any event, as Ribeiro PJ said in Oriental Daily at §128 (where the individual plaintiff did not give evidence at trial):-

“…It is of course well-established that for the purposes of constituting the cause of action in defamation, some damage is presumed in favour of the plaintiff of whom defamatory words have been published. But there is no basis for presuming that a plaintiff has suffered aggravated mental pain and suffering in any case. That must be a matter of evidence, depending on the circumstances, such as the robustness or vulnerabilities of the plaintiff in question… ” (emphasis added).

38.The learned judge then went on to find that (§129) the individual plaintiff’s claim for aggravated damages could not succeed given the lack of evidence regarding the injury to his feelings.

39.In the present case, given the lack of direct evidence from the plaintiff, this court is not in position to assess how the Statements have aggravated her mental pain and suffering.

40.Accordingly, I refuse to award any aggravated damages.

E3. Injunction

41.There is no indication that the defendant will not further publish the Statements. Hence, I grant an injunction to restrain the defendant, whether by its employees, shareholders, directors, servants and/or agents or otherwise from publishing, procuring, causing or allowing to be published and/or participate in the publication of the Statements or similar words defamatory of the plaintiff to the same or similar effect.

F. COSTS

42.As the Unless Order did not deal with costs, I shall consider the question of the costs of the entire action.

43.There is no reason why costs should not follow the event. I make an order nisi that the defendant do pay the plaintiff’s costs of the action, with certificate for counsel, to be taxed at the District Court scale if not agreed.

G. DISPOSITION

44.Accordingly, I make the following order:

(1) The defendant do pay a sum of HK$200,000.00 to the plaintiff;

(2) The defendant do pay pre-judgment interest at the HSBC Prime Rate plus 1% from the date of the writ (ie 1 November 2022) up to the date of judgment, and at judgment rate thereafter until full payment;

(3) The defendant be restrained, whether by its employees, shareholders, directors, servants and/or agents or otherwise from publishing, procuring, causing or allowing to be published and/or participate in the publication of the Statements or similar words defamatory of the plaintiff to the same or similar effect.

(4) The defendant do pay the plaintiff’s costs of the action, with certificate for counsel, to be taxed at the District Court scale if not agreed.

45.It remains for me to thank Mr Ng for his helpful assistance.

Mr Lawrence K F Ng, instructed by Deheng Law Offices (Hong Kong) LLP, for the plaintiff

The defendant was not represented and did not appear