Cheung Wai Yee v. Poon Pik Yuk
Read the full judgment text of HCA 1500/2020 on BabelCite. This High Court CFI judgment was delivered on 2 June 2026.
1. This is a sad case. In her written Opening Submissions, counsel for the Defendant [1] submitted that:
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HCA 1500/2020 [2026] HKCFI 2852 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1500 OF 2020 __________________
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__________________ JUDGMENT __________________ Introduction 1.This is a sad case. In her written Opening Submissions, counsel for the Defendant[1] submitted that:
2.That is perhaps an understatement. What sets this case apart from what one may call a “typical” family dispute is the depth of animosity, the intensity of bitterness, even hatred, between the antagonists, as I shall explain presently. 3.The Plaintiff, Ms Cheung Wai Yee (“GoGo”), sues the Defendant Ms Poon Pik Yuk (“Jade”), who is the younger sister of GoGo’s “de facto husband” Mr Poon Tak Hung (“Michael”), for libel published in a Facebook post on Jade’s account on 24 June 2020 (“FB Post”), and subsequent publication and republication of the libel by other media on the internet. GoGo was pregnant at the time and suffered a miscarriage in around mid-July 2020. It is her case that the libel against her caused her tremendous distress, which materially contributed to her miscarriage. She claims various relief: an injunction restraining further publication of the libel, damages (including aggravated and exemplary damages), and a written apology from Jade. 4.Jade admits the publication of the FB Post but denies that it was libellous of GoGo. She denies liability for republication of the original post by other media and how the media reported what she had said in the FB Post. In addition to pleading justification and fair comment in defence, she counterclaims against GoGo for libelling her in GoGo’s responses to the FB Post published by the media on the internet. She in turn seeks damages and an apology from GoGo. 5.The trial of this matter was set down for 10 days, and the hearing took 9 days. GoGo and Jade gave oral evidence and were extensively cross-examined. GoGo also called as factual witnesses Michael, her mother Mdm Tsang Sau Ying and her domestic helper Mdm Yvonnie Haze Cristal. In addition, GoGo adduced expert medical evidence from Dr Felix Wong Wu-shun, on the issue whether the publication of the Words (defined in [15] below) in the manner as pleaded by GoGo materially contributed to her miscarriage. The Parties 6.It is pertinent to start with a brief description of who the antagonists are in order to have a better understanding of the relevant background to this case. The facts stated in [7] to [13] below are essentially undisputed which I accept as my findings. 7.GoGo was born in Guangzhou in 1984 and moved to Hong Kong in 1990. She grew up with her parents and was educated in Hong Kong. Before 2007, she worked part-time as a model. In 2007 she participated in the Miss Hong Kong Pageant organised by the local television broadcaster TVB. Although she was not selected for the final rounds, TVB offered her an artiste’s contract and a role in a programme called “Foodie 2 Shoes (味分高下)”. She was one of eight assistants collectively known as “Angels of Taste (味之天使)” with the name “Pear (啤梨)”. The programme consisted of some 35 shows and was very popular. She became well-recognised by the public because of her appearance in that programme. Subsequently, she enrolled in the broadcaster’s Artiste Training Course and took part in a number of drama series, usually in some supporting roles, most notably as palace maids in historic dramas. That earned her the nick-name “official palace maid (御用宮女)”. She also starred in a supporting role in a popular drama series “Barrack O’Karma (金宵大廈)” in 2019 with some acclaim. I was referred to favourable media coverage of GoGo covering her TVB days, and her romance with Michael. There is also a flattering portrayal of her in the internet edition of Elle magazine in September 2019 following her successes in 金宵大廈 and her business endeavours which she had developed alongside her acting career. It is fair to say that she enjoyed a fair bit of popularity amongst the public as an entertainment personality. 8.In around February 2013, GoGo met and started a romantic relationship with Michael. Michael is the third and youngest son from a wealthy but low-key local family, often described colloquially as “invisible tycoons”. In around February 2014 GoGo was pregnant with Michael’s child. On 15 March 2015, GoGo and Michael threw a wedding banquet which received some media coverage. Jade attended the wedding. Although GoGo and Michael are never officially married, they have been living together as husband and wife since 2014, and always referred to each other as husband and wife, both within their respective families and in public. Their child, Ashton, was born on 11 November 2014. 9.Jade is Michael’s younger sister. Other than several years while she studied in university in the UK, she always lived in the Poon family house in Kowloon Tong, which was a mansion of around 8,000 sq ft (“House”). The patriarch of the family (“Mr Poon Senior”) lived there with Michael and Jade.[2] Mr Poon Senior’s second son, William, and his family (his wife Eva, and two young children) used to live in the House but they moved out in around May 2017. 10.GoGo came to know Jade soon after she started her relationship with Michael. Jade is about the same age as GoGo. The two of them got along very well and became very close to each other. They were like sisters, or “besties” in social media language. 11.Before May 2017, GoGo and Michael lived in a property in Kowloon City not far from the House. That property was converted from multiple units in an old building into a large flat of over 2,000 sq ft. During GoGo’s pregnancy, they would visit Mr Poon Senior and stay overnight in the House from time to time. According to GoGo, but disputed by Jade, she spent more nights in the House than in Kowloon City during her pregnancy. Whether that was the case is ultimately not important, but the fact that even such a relatively trivial matter is hotly disputed speaks volumes about the enmity between the two sides. 12.William’s family moved out of the House in around May 2017. Michael, GoGo and Ashton moved to live in the House on a permanent basis shortly after that. 13.As stated above, GoGo and Jade used to be very close. Their relationship remained close for around 2 years after GoGo’s family moved into the House. Things began to change in around 2019. By the end of 2019 to January 2020 they were not talking to each other. By June 2020, the relationship between GoGo and Jade had become very tense. Jade moved out of the House in June 2020. What caused that breakdown of relationship is hotly in dispute: they blame each other for what happened, with very serious and damaging allegations of extremely unsavory behaviour being levelled against each other. The nature of these allegations will be apparent when I set out the parties’ contentions in later parts of this judgment. 14.It was against the above background that the publications which gave rise to the present action took place. The Statement of Claim alleges five publications said to be libellous of GoGo, whilst Jade’s counterclaim referred to four publications by GoGo. The Plaintiff’s Claim 15.It is GoGo’s pleaded case that:[3]
16.The Statement of Claim sets out five sets of words allegedly published or republished by Jade, referred to as “the 1st Words” to “the 5th Words”.[4]
17.The Statement of Claim alleges that the Words in their natural and ordinary meaning meant, or were understood to mean that:
18.In his opening submissions, counsel for GoGo[5] submitted that the “sting” of the libel is that GoGo dishonestly misappropriated the $1m gift from Mr Poon Senior to Ashton and used the money for her own benefit. That has been conveniently referred to as the “embezzlement sting” in the course of the trial. 19.It is pertinent to note that whilst it may be said that the meanings pleaded in Statement of Claim paragraphs 8.2 and 8.3 are more general charges, Mr Lam confirmed that those two paragraphs are not intended to convey meanings in addition to the embezzlement sting. Counsel for Jade did not contend otherwise, and did not attempt to defend those meanings distinctly from the embezzlement sting contended by GoGo. 20.The Statement of Claim goes on to plead malicious falsehood, but in the context of the case that cause of action adds nothing to the claim in defamation. Malice, however, is relied on in support of the claim for aggravated and exemplary damages. 21.A significant aspect of GoGo’s case is that she suffered a miscarriage as a result of the stress, and distress, caused by the publication of the Words. It is her pleaded case that:
22.GoGo further relies on the fact that on 15 July 2020, her solicitors sent Jade a demand letter (“AT Letter”), in which GoGo demanded Jade to take steps inter alia to delete the libels permanently from the social media, not to publish any further libels against her and to publish a retraction and apology. No demand for monetary compensation was made in that letter. However, Jade failed to respond to the AT Letter at all. 23.GoGo also claims financial loss by way of special damages, including rental for alternative temporary accommodation and expenses for consulting a psychiatrist. 24.Finally, GoGo seeks an injunction and an order compelling Jade to make a written apology. The Defence: Meaning, Justification and Fair Comment 25.Jade admits posting the 1st Words on her Facebook account, although she said that the account was a “private” one and could only be seen by no more than 20 people.[7] She admits to having spoken to one reporter from Apple Daily, named Grace, who contacted her on 25 June 2020 in respect of the FB Post. She denies authorising, or procuring the publication and republication of the 2nd to 5th Words. 26.Jade denies that the 1st Words meant or were understood to mean the embezzlement sting, or any defamatory meaning. 27.Moreover, she avers that “publication of the 1st Words was justified”,[8] and sets out a lengthy list of alleged facts in support of that plea.[9] 28.Additionally, Jade relies on fair comment. The Defence and Counterclaim pleads that:
29.Lengthy particulars are then set out in support of that plea. 30.Jade in turn counterclaims against GoGo for her publication of allegedly defamatory words in what are referred to as “1st Offending Words” to “4th Offending Words.” The relevant publications will be set out in a later section of this judgment. 31.Jade seeks damages, an order for a written apology and injunctive relief by way of counterclaim. 32.I propose to deal with the Plaintiff’s claim first, then turn to consider Jade’s counterclaim. Issues – Plaintiff’s Claim 33.The main issues on liability in relation to GoGo’s claim are:
Whether the Words Defamatory: Natural and Ordinary Meaning 34.The entire FB Post, in its original words and format in its entirety, is set out in Annex A. 35.GoGo’s case is relatively straight forward: the offending words bore or were understood to bear the meaning that she dishonesty misappropriated the $1m gift from Mr Poon Senior to Ashton for her own use, ie. the embezzlement sting. 36.In her written Opening Submissions, counsel for Jade explained her case is that:
37.In short, Jade’s defence is that the FB Post did not mention the “embezzlement sting” contended by GoGo, but only referred to the two facts stated above, which she seeks to justify. She claims that the “embezzlement sting” first appeared in HK01’s article (the 4th Words) on 26 June 2020, which she did not procure or authorise. 38.The main issue is therefore what is the natural and ordinary meaning of the Words. Counsel agree that the 1st Words, contained in the FB Post, should be considered separately from the 2nd to 5th Words, because there is no dispute that Jade published the FB Post whereas her responsibility for the publication of the 2nd to 5th Words is disputed. I accept that approach would be appropriate. 39.There is no dispute that in determining the natural and ordinary meaning, no evidence is admissible. Counsel agree that in a trial before a judge sitting without a jury, as is the present case, it is for the court to decide which meaning contended by the parties is the “one meaning” that the offending words bear. 40.There is no dispute on the applicable legal principles on the issue of meaning. Counsel for GoGo in his written Opening referred to the statement of principle in Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at [42] per Lok J:
41.To similar effect is Independent Commentators Associations Limited v Joint Publication (HK) Co Ltd [2021] HKCFI 743 at [21]-[22] per Deputy High Court Judge Richard Khaw SC, cited by Counsel for Jade in her written Opening:
42.Additionally, Mr Lam placed emphasis on Stocker v Stocker [2020] AC 593 where Lord Kerr of Tonaghmore JSC observed, in relation to the importance of context in publications on social media, that:
43.Applying the principles identified in the authorities mentioned above, I have little difficulty in accepting GoGo’s case that the sting of the 1st Words was that she dishonesty misappropriated the $1m gifted by Mr Poon Senior to Ashton for her own use. That is, in my view, the most natural reading of the 1st Words in the context of the FB Post as a whole. I note that the FB Post accused GoGo of being evil, not legally married to Michael, greedy, vainglorious and dishonest. Against the background of those allegations the two “facts” of Mr Poon Senior gifting $1m to Ashton for his education and GoGo shortly thereafter enrolling in a course costing over $1m are stated. A reasonable person reading the FB Post would understand the offending words to mean that GoGo dishonesty took the money and used it for her own studies. 44.It is plainly not good enough for Jade to contend that she was only putting two and two together but did not expressly say that GoGo embezzled the money. As Lord Devlin perceptively observed in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277:
45.It is therefore futile to contend that she did not expressly say in the FB Post that GoGo had taken the money. It is also misguided because the two “facts” are not themselves defamatory: what is defamatory is the inferential or implied meaning that a reasonable reader would understand to mean from the words used. It is that inferential meaning ie. the sting of the libel, that the defendant has to justify. Justification & Fair Comment Unsustainable 46.Counsel for Jade realistically accepts that if I decide that the FB Post bears the embezzlement sting contended by GoGo, Jade has no defence. 47.In my judgment, she is right to so concede. 48.First, because the defence does not purport to justify the sting of the libel. 49.Secondly, the fair comment defence does not get off the ground. Indeed, fair comment is effectively abandoned in the written Closing Submissions of Jade’s counsel. That is not surprising. A defendant can only avail of this defence if the offending words would be understood to be comment, and that the comment is on a subject matter which is of public interest. The defence fails in both aspects. Publication of the 2nd to 5th Words and the 1st to 4th Offending Words 50.The more taxing issue on liability is whether Jade is liable for the publication of the 2nd to 5th Words. In that context, it is material to consider in more detail the sequence of events. 51.The FB Post was posted on 24 June 2020 on Jade’s “private” Facebook account. I am given to understand that for a “private” account, only her “friends” could read the post. Jade’s evidence is that at the time she had less than 20 “friends” who could read her posts. One of those friends was “Yan Yan”, who was someone in the media business. It would appear that Yan Yan took a screenshot of the FB Post and posted the screenshot to others. The screenshot showed that the FB Post had been read at least twice. Grace, the reporter from Apple Daily, apparently received Yan Yan’s screenshot, although it is unclear whether she received it directly from Yan Yan or from other intermediaries. 52.Grace then contacted Jade on her mobile phone. Jade did not know Grace, but she explained that since she used her name “AJ Poon” for her Facebook and other social media accounts, it would not be difficult for others to locate her on social media platforms. In any case, Grace managed to locate Jade’s contact and reached out to Jade on 25 June 2020 at around 15.24 hrs. 53.Jade admits that she did respond to Grace’s enquiries “once” on or around 26 June 2020.[11] However, “once” is not accurate in that Jade exchanged a number of texts and voice messages with Grace, and had spoken with Grace at least once on the phone, between 26 June and 27 June 2020. Jade also sent Grace a number of screenshots of messages exchanged between her and GoGo from 2018 when the two of them were on good terms, with a view to substantiating some of the things that she had said about GoGo in the FB Post. 54.An article about the “feud” between GoGo and Jade appeared on the Apple Daily website on 26 June 2020 at 00.30 hrs (“Apple 1st Article”). On the evidence, this was the first report of the FB Post on social media. The main picture of the online version of the Apple 1st Article is a section of the FB Post screenshot showing GoGo’s name. The article extensively quoted the contents of the FB Post, GoGo’s immediate response to the FB Post, and the whole FB Post was reproduced. 55.The Apple Daily website followed up with an article on 26 June 2020 at 00:59 hrs which reported GoGo’s response to Jade’s post (“Apple 2nd Article”). This article contained the “1st Offending Words” complained of in the Defence and Counterclaim, paragraphs 54-55:
56.On 26 June 2020 at 13.47 hrs, an article containing the 4th Words appeared on HK01’s website (“HK01 1st Article”). This article recounted the FB Post and reported GoGo’s response to the FB Post, denying the accusation that she had deceived Mr Poon Senior of $1m and taken the money for her own education use. She also reportedly denied other accusations Jade had made against her. 57.On 26 June 2020 at 21:30 hrs, Apple Daily’s website published another article (“Apple 3rd Article”), this time publishing Jade’s retort to GoGo’s accusations in the Apple 2nd Article. The article stated that Jade contacted Apple Daily proactively to express her wish to respond to the matter directly. The article reported Jade’s statement that she “really did not know” whether GoGo had taken Mr Poon’s Senior’s money, but reiterated that very soon after Mr Poon Senior’s gift there was news that GoGo enrolled on the EMBA course. 58.Meanwhile, on 26 June 2020, HK01 published on its website an article about the row between Jade and GoGo, with the title “張韋怡否認貪錢指控 姑仔再反擊揭阿嫂玩分化:大話一個冚一個!” (English translation: GoGo Cheung denies greedy for money allegation Sister-in-law counter-attacks again revealing [GoGo] of attempting to play off one against another: one lie covering another lie). The opening line of that article contained the 3rd Words. The relevant part of the sentence is as follows:
59.Articles about the quarrel between GoGo and Jade appeared on a number of other social media websites in the following days. Allegations and counter-allegations were exchanged through these articles on social media. For example, on 27 June 2020, an article in Oriental Daily’s website reported an accusation from GoGo that this was a “copy case” of what happened 6 years before between Jade and William’s wife. Jade in turn alleges that GoGo had defamed her by this article, ie. the “2nd Offending Words”:
60.Another article appeared on HK01’s website on 28 June 2020, with a headline:
61.The opening sentence of this article contained the 2nd Words complained of by GoGo, which I have set out in [16.2] above and need not repeat here. 62.On 4 July 2020, an article in the Next Magazine appeared on the magazine’s website. This article contained the 5th Words which I have set out in [16.5] above. 63.On 15 July 2020, GoGo on her Facebook page published a post, in which she wrote what are referred to as “3rd Offending Words” in Jade’s counterclaim:
64.The following day, 15 July 2020, GoGo’s solicitors sent the AT Letter to Jade, in which the firm on her behalf complained of the alleged libels and demanded Jade to (i) permanently remove all defamatory materials from the social media, (ii) cease further libellous publications of GoGo, (iii) publish a statement admitting her libels against GoGo, (iv) publish an apology to GoGo in respect of the libels in major news media, and (v) proactively monitor and remove all related libels of GoGo published in the media. Jade received the AT Letter but did not respond at all. 65.Finally, Jade complains that on 9 August 2020, GoGo on her WeChat page shared a news article concerning her dispute with Jade and posted messages defamatory of her (4th Offending Words”):
66.It is unnecessary to set out all the other articles about the dispute between GoGo and Jade published on the internet, which are set out in the Agreed Chronology of Events. The above summary sufficiently gives a flavour of the accusations and counter-accusations that took place on social media from 24 June to mid-July 2020, when interest in the feud seems to have died down, as well as the intensity of the bitterness they harboured against each other. 67.I accept Jade’s evidence that she did not expressly authorise or procure the republication of the FB Post or the 1st Words by other media. However, she accepted that those who could read the FB Post on her Facebook page could show the FB Post on their mobile devices to others, or, as in the case of Yan Yan, capture the post and forward the screenshot to others. She agreed that she intended Grace to publish her version of events and knew that Apple Daily would do so. She also expected Grace would use the screenshot messages she had sent to Grace, for which reason she redacted the names of other people mentioned in the messages. When asked by this Court, she confirmed that she expected other media would pick up the story and report about it. There is therefore no doubt, and I so find, that she intended that the 1st Words would be published by Apple Daily and republished by other media. 68.It is submitted on Jade’s behalf that the 2nd to 5th Words, which “interpreted” the FB Post to mean that GoGo had embezzled the $1m, was not what she had said in the FB Post but was twisted by the media (she called it “echo chamber effect”) to hype up tabloid news for their own benefit. 69.I do not accept that submission. I have found that the natural and ordinary meaning of the 1st Words is that GoGo had embezzled the $1m gift from Mr Poon Senior to Ashton. In my judgment, the 2nd to 5th Words are republication of that sting. On Jade’s own evidence, it is reasonably clear that she anticipated and intended Apple Daily’s publication of what she had said in the FB Post including the 1st Words, and that other media would further publish what Apple had published. I am satisfied, and find, that the republication of the natural and ordinary meaning of the 1st Words by other media was within her reasonable contemplation. 70.Accordingly, Jade must be liable for the publication of the 1st Words in the FB Post, and the republication of the natural and ordinary meaning of the 1st Words, ie. the embezzlement sting, in the 2nd to 5th Words. Counterclaim 71.I have recounted the sequence of events following the publication of the FB Post up to the publication of the 4th Offending Words on 9 August 2020. 72.GoGo admits the publication of the 1st to 4th Offending Words. There is no dispute that the 1st to 4th Offending Words bore the meanings relied on by Jade (save for one minor exception), as follows:
73.Jade claims that GoGo published the 1st to 4th Offending Words with malice, knowing the same to be untrue and – in respect of the 3rd Offending Words – “repeatedly adopted robustly worded and/or outrageously derogatory phrases to slander the Defendant … with a view to disdaining and scorning the reputation of the Defendant”.[16] 74.On her part, GoGo pleads justification to substantially all the meanings relied on by Jade,[17] with lengthy particulars of a long catalogue of alleged bad character and obnoxious behaviour on Jade’s part. She also relies on the defence of Reply-to-attack qualified privilege.[18] 75.A substantial amount of time was taken up with evidence relating to the matters pleaded in purported justification and fair comment, which are mostly trivial and irrelevant. For example, considerable time was taken up in exploring whether GoGo had bought counterfeit handbags and shoes through the internet: GoGo said she did a few times only because Jade suggested that and found the websites selling them; Jade’s case was that GoGo was vainglorious and used to posing counterfeit goods as genuine luxury articles. Other examples include cross-examination on some unhappy episodes in her relationship with Michael, most of which happened some years ago; on whether she wanted her family to live in the House; whether she was disrespectful to Mr Poon Senior, etc. Jade, in turn, was cross-examined on many aspects of her personal life such as whether she had social life, whether she had worked and paid any tax, and on whether it was fair to call GoGo “failed Miss Hong Kong contestant”. 76.What makes matters worse is that most of the evidence presented at trial is, at best, equivocal. A good example is that both sides rely on some voice messages of one Mable, who was a nurse/carer of Mr Poon Senior. Jade produced a number of voice messages Mable sent to her in January 2020, in which Mable mentioned a number of incidents such as Mr Poon Senior being very upset about Michael terminating the employment of his previous helper Maria because she had been rude to GoGo (another matter that was explored at some length in cross-examination), and that Mr Poon Senior allegedly scolded Mdm Tsang one day while she was there looking after Ashton. Presumably these recordings were produced to show GoGo and Mdm Tsang were not as nice and kind as they make themselves out to be. On the other hand, GoGo produced some very long voice messages Mable sent to her in October 2020 after Mable had left the employment, in which she referred to Jade as “evil girl (魔女)” and apologised to GoGo for her previous “misunderstandings” towards GoGo which she attributed to her having been misled by Jade. But neither side called Mable to give evidence. According to Mdm Tsang, she remained on good terms with Mable, who had told her (Mdm Tsang) that she was reluctant to be involved as a witness. In the circumstances, I am unable to give any weight to Mable’s messages. 77.Another example is the allegation that Jade had practised witchcraft. In this regard, GoGo relied on the evidence of Mdm Tsang and Michael, and voice messages exchanged between them on 19 July 2020 in which Michael purportedly acknowledged his and Mr Poon Senior’s knowledge of Jade practising witchcraft, and that he had “terminated all relationships” with Jade. Although both of them referred to this subject in their witness statements, I made clear to counsel that on a serious allegation of this kind I would like to be assisted by the witnesses’ oral evidence to explain the context in which the voice messages were exchanged. However, neither Michael nor Mdm Tsang gave oral evidence on this matter and were not cross-examined on it. On her part, Jade accepted that she had kept a snake in her room as a pet but denied any participation in witchcraft. The accusation is a serious one, and I am far from satisfied that the allegation is proved on the balance of probabilities. 78.There are many other factual disputes of that kind. It is not really possible for a trial judge to determine what was in fact the true picture and who was right or who was wrong. I decline to do so in the circumstances of this case. 79.Accordingly, GoGo fails to justify the defamatory meanings of the 1st to 4th Offending Words. 80.However, the evidence do support GoGo’s plea of qualified privilege. 81.In the first place, the 1st to 3rd Offending Words were published by GoGo in response to media reports of what Jade had said about her, firstly in the FB Post and then republished in subsequent media reports. Up to around mid-July 2020, the accusations and counter-accusations exchanged between the two were widely publicised on social media. The media frenzy died down when the elder brother of the family put his foot down and told them to stop. But the intensity of the feud was palpable from the articles presented in evidence. 82.In this connection, I would mention in particular the Apple 3rd Article published on 26 June 2020 (see [57] above). That article reported Jade had contacted Apple Daily proactively to express her wish to respond to GoGo’s allegations directly. In response to the embezzlement allegation, which Jade claims first appeared in the HK01 1st Article published on 26 June 2020 (see [54] above), she stated that she “really did not know” whether GoGo had taken the $1m. That was regrettable. If Jade had wanted to clarify that she was not accusing GoGo of stealing the money, she should have said so clearly and unequivocally. Instead, by saying that she “did not know” whether GoGo had taken the money, she was adding fuel to the fire by inviting the reader to speculate whether that allegation was true. 83.The 3rd Offending Words were published on 15 July 2020 on GoGo’s Facebook account. That was about a week after the initial wave of articles, but GoGo had gone to lawyers and the AT Letter was issued on 15 July 2020. That explains the depth of feeling, and the use of words, in that post. 84.The 4th Offending Words were taken from chat messages GoGo exchanged with one “maggie” on WeChat, apparently on 9 August 2020. I have received no evidence of who “maggie” was or the context of the chat. Nevertheless, the chat messages were undoubtedly about her dispute with Jade, and her taking legal action to vindicate herself. Moreover, 9 August 2020 was not long after the miscarriage. 85.Second, I accept that GoGo published the 1st to 4th Offending Words with reasonable grounds for believing in their truth. I have already briefly described some of the disputed issues both sides relied on. Although I am unable to make findings of fact as to whose version is true, the evidence does support GoGo’s honest belief in the truth of the allegations. 86.Thirdly, in my judgment, GoGo did not go beyond what was reasonable or proportionate in the circumstances of the case. In this connection, I am reminded of the judgment of Lok J in Multi-Winner at [70], [80] and [85] – [86]:
87.I am satisfied that the defence of qualified privilege is established in this case. Quantum: Overview 88.GoGo seeks compensatory, aggravated and exemplary damages. In the present case, there is also an added dimension in that GoGo claims that her miscarriage was materially caused by the distress resulting from the publication of the libel against her. Compensatory Damages 89.It is well-established that compensatory damages serve to compensate the plaintiff for the damage to her reputation; vindicate her good name; and take account of the distress, hurt and humiliation which the words in question must have caused: Oriental Daily v Ming Pao (2012) 15 HKCFAR 299 [35]-[40] per Ribeiro PJ. 90.All relevant circumstances of the case must be taken into account, including: the gravity of the libel; the mode of publication and the extent of circulation; the seriousness of harm caused to the plaintiff’s reputation; the defendant’s failure to retract or apologise for the libellous publication, and conduct of the action which caused additional injury to the plaintiff’s feelings such as insisting on defences which are unfounded. 91.I start with consideration of GoGo’s evidence on the impact of the libel on her. In her Statement of Claim, paragraph 12, it is pleaded that:
92.In her witness statement, she said:
93.In oral evidence, she elaborated that she was at work when Grace telephoned her and told her about the FB Post and what Jade had said about her. At first, GoGo did not know what Grace was talking about and did not give Grace any substantial response, but when she saw the FB Post later on she was shocked. She said she totally collapsed and for the next few days she was severely distressed, furious, hysterical and completely broke down. As described above, the “feud” over the social media intensified and continued until around mid-July 2020. 94.On 3 July 2020, GoGo was examined by Dr Chan Lai Yin Ophelia, a specialist gynaecologist, and ultrasound showed a viable foetus of around 5 ½ weeks. It will be recalled that on her Facebook post on 15 July 2020, she said that she was expecting her second child and looking forward to getting back to normal family life. 95.On 17 July 2020, Dr Ophelia Chan examined GoGo and confirmed that her feotus’ heart had stopped. She was told to return for a further examination in two weeks’ time. However, the miscarriage occurred on 30 July 2020. 96.The depth of GoGo’s hatred against Jade is evident from her witness statement, paragraph 57:
97.In her oral evidence, she repeated her accusation that Jade was a “murderer”. 98.Naturally, she was cross-examined extensively on her relationship with Jade, on whether there were other causes which might have caused her miscarriage, on the matters pleaded in support of the justification and fair comment defences, as well as matters affecting her credibility overall. However, GoGo’s evidence on her hurt and distress resulting from the publication of the FB Post and republication in subsequent media articles was not seriously challenged. Although Jade in her witness statement cast doubt on the seriousness of the miscarriage incident and the effect on GoGo, it is fair to say that her counsel refrained from challenging GoGo on her evidence on the miscarriage and the devastating effect that had on her as described in detail in her witness statement. 99.I have considered GoGo’s evidence in the round. I accept her evidence and find that she did suffer serious harm and distress as described in her witness statement and oral evidence. 100.The difficult question is whether the publication of the libel caused or contributed to her miscarriage. To that issue I now turn. Miscarriage: Medical Evidence 101.The objective facts are not in dispute. On 3 July 2020, GoGo was seen by Dr Chan Lai Yin Ophelia, a specialist gynaecologist. Ultrasound scan performed during that visit showed intrauterine pregnancy with a viable foetus corresponding to a gestational age of 5 ½ weeks. 102.On 17 July 2020, GoGo was seen by Dr Ophelia Chan again. Ultrasound showed that the foetus had grown in size but feotal heart movement was not detected. GoGo was advised to repeat another ultrasound scan in two weeks to confirm foetal viability. 103.On 28 July 2020 GoGo started to have vaginal bleeding. The bleeding became worse and she was in considerable pain. In the evening of 30 July 2020 she was admitted to the Accident & Emergency Department of Queen Elizabeth Hospital where the following complaints were recorded: “(a) abdominal pain (2) vaginal bleeding (3) passed tissue mass”. The clinical diagnosis was “incomplete miscarriage”. She received treatment and remained in hospital until 31 July 2020. 104.I accept GoGo’s evidence that in addition to the physical pain of experiencing the miscarriage, which was described in some detail in her witness statement and not challenged, she suffered from tremendous emotional distress from the miscarriage. The issue is whether that pain and suffering was caused by the publication of the Words. 105.In that regard, GoGo obtained leave to adduce expert medical evidence on the following issue:
106.The framing of that issue is less than ideal. It encompasses two parts: first, whether the publication of the Words caused GoGo any, and if so what, stress; and secondly whether that stress materially contribute to the miscarriage. 107.The first question is a matter of fact for the Court rather than the expert. I have already found that GoGo did suffer from serious hurt and distress as a result of the publication of the libel. What the expert evidence can assist is on the second question ie, the link between the hurt and distress experienced by GoGo and the miscarriage. 108.GoGo’s expert is Dr Felix Wong, who produced an expert report dated 27 June 2023. Dr Wong graduated from the University of Hong Kong in 1976 and obtained master degrees from Singapore and Hong Kong. He was qualified as a specialist in gynaecology, and elected to fellowships in Hong Kong, Britain and Australia. He taught in both medical faculties in Hong Kong and since 1992 was Professor and Director, University of New South Wales, Division of Women’s and Children’s Health, Liverpool Hospital. In that position, he oversaw five hospitals in the less well-to do areas of Sydney. His career covered clinical operations, academic positions as well as research. He has published widely on gynaecology and related subjects. He returned to Hong Kong in 2010 and remained in private practice since. He has acted as expert witness in Medical Council proceedings. 109.Dr Wong saw GoGo in person on 14 February 2023. He explained in his expert report that during the consultation, GoGo confirmed to him the contents of the Statement of Claim, her witness statement, and her subjective feelings towards the publication of the Words were all genuine. He provided his opinion on the basis that what GoGo told him during that visit was entirely true. 110.During the consultation on 14 February 2023, Dr Wong performed a pelvic ultrasound examination on GoGo and took GoGo’s blood sample for lab tests. 111.Dr Wong explained that his examination of GoGo and the blood test report revealed no physical condition or blood abnormality which might affect GoGo’s pregnancy in July 2020. 112.In his report, Dr Wong fairly points out that:
113.He referred to literature which support different sides of the debate. For example, he referred to the webpage of the National Health Service in Great Britain on causes of miscarriage, where it is said (under the heading “Misconceptions about miscarriage”) that:
114.On the other hand, he refers to research papers which conclude that there is a causal link between maternal psychological stress and increased risk of miscarriage. He specifically points out that whilst most of these research papers are based on studies on animals (because for obvious ethical reasons studies on humans are not feasible) and are not as reliable as human studies, he had no reason to believe that the scientific observations would be drastically different in humans. 115.His conclusion is that:
116.Jade elected not to adduce expert medical evidence but counsel for Jade subject Dr Wong to extensive cross-examination. Other than suggesting that studies based on animals could not be reliably applied to humans, and the controversy as to whether stress could be causative of miscarriage, counsel emphasised three points. 117.First, counsel suggested that Dr Wong had no expertise in assessing what GoGo told him about her emotional state at the time of the miscarriage was true. Dr Wong fairly accepted that as a medical professional, he had to base his opinion and diagnosis on the basis of what the patient told him and he did not have any professional training to assess whether what GoGo said was truthful. In fairness I do not attribute any shortcoming to Dr Wong. As I have noted in [106] above, this a problem arising from the framing of the issue. In any case, GoGo’s emotional or psychological state at the material time is a question of fact for the Court, and not something that Dr Wong could assist me on. 118.Secondly, it was pointed out that for miscarriage that occurs during the first trimester, as was the case here, the most common reason is problems related to the foetus’ chromosomes, and that obviously it was no longer possible to ascertain in 2023 (when Dr Wong examined GoGo) whether that was the case in July 2020. Dr Wong agrees that miscarriage attributed to feotal chromosomes issues is the most frequent reason, statistically around 40%. That, however, does not negate stress or psychological reasons contributing to miscarriage. Mr Wong referred to his experience in Sydney, where he observed that stress and emotional state of mothers often negatively affected pregnancies, which was consistent with the research papers he cited in his report. 119.Thirdly, counsel suggested that GoGo was suffering from polycystic ovary syndrome (PCOS), as she herself told reporters in 2017, and that there is evidence to suggest that the condition may be linked to an increased risk of miscarriage. Mr Wong agrees that if GoGo had PCOS that might affect the miscarriage. But in his opinion GoGo did not suffer from the condition. He explains that from his experience (he wrote a book on PCOS in 2019) and the examination he conducted on GoGo, he does not think GoGo had PCOS. His examination of GoGo did not reveal any sign of PCOS, nor did any of her medical reports. The blood test results showed no hormonal abnormality, which would have been the case if GoGo had PCOS. Dr Wong explained that PCOS is a chronic disease, and its symptoms (such as increased ovarian follicles, and presence of androgens) would not go away. In his examination of GoGo in 2023, he found nothing indicative of PCOS. 120.Counsel also suggested to Dr Wong that he arrived at his conclusion by a process of elimination. In response, Dr Wong explains that he came to the conclusion he did on the basis of (a) his examination of GoGo which did not reveal any physical or gynaecological conditions which might affect her pregnancy, (b) the scientific studies supporting causal link between stress and miscarriage, and (c) his own experience in practice. 121.I have considered Dr Wong’s evidence most anxiously. I find his explanation convincing. I accept his opinion that the stress experienced by GoGo resulting from the publication of the Words materially contributed to her miscarriage. Compensatory Damages: quantum 122.On the level of damages, Mr Lam on behalf of GoGo relied heavily on the seminal decision of Yuen J (as Yuen JA then was) in Chu Siu Kuk Yuen v Apple Daily Ltd [2002] 1 HKLRD 1, where her Ladyship held that a plaintiff in defamation could recover damages for mental and physical injury proved to flow naturally and directly from the defamation. 123.In that case, a female solicitor who was the sole practitioner of her law firm in Yuen Long which mainly did conveyancing work was falsely accused of absconding with $2 million of clients’ money in a front-page article of Apple Daily newspaper in October 1998. She suffered from psychological and physical symptoms and gave birth to her second child pre-term. The child stayed in intensive care unit for some time, and had to undergo a number of operations which added to the plaintiff’s anxiety and distress. The judge found that the plaintiff was suffering from moderate to severe depression which was aggravated by the pre-term delivery and the child’s condition. The libel was a most serious attack against the integrity and honesty of a solicitor; it was also published on the front page of a newspaper with a wide circulation of over 415,000 copies. Although the newspaper published an apology the following day, it did not explain why the plaintiff was named in the article. The judge awarded the plaintiff $3 million general damages “to console the plaintiff for the hurt and distress suffered by her, to repair the harm that has been done to her reputation (including her business reputation) and to vindicate her reputation”. 124.Mr Lam further submitted that taking into account inflation since December 2001,[19] the “bare minimum” in this case should be $4.68 million. 125.With respect, I agree with and accept the principle decided in Chu Siu Kuk Yuen. However, the facts of that case are very different from the instant case. The plaintiff in that case was a solicitor, and the attack on her of embezzlement and abscondment was most serious to her reputation as a solicitor and to her firm’s business. The publication was on the front page of one of the most popular newspapers at the time and would have been read by a large section of the general public. The psychological and physical symptoms of depression suffered by the plaintiff in that case appear to be more serious in that case, but without expert advice I am not satisfied that I would be comparing like with like. 126.In the present case, I take into account the following factors:
127.In my judgment, to vindicate GoGo’s reputation, to compensate and console her for the hurt and distress suffered by her, including the distress from the miscarriage, $3,000,000 would be the appropriate amount of general damages. 128.I would allow the claim for special damages. For alternative accommodation, there is no evidence of the length GoGo stayed in the serviced apartment but there is a receipt confirming that $112,000 was paid for the first month’s rent and one month’s deposit, which I accept. Receipts for medical fees totalling HK$15,980 have been produced and I accept that amount. Total special damages are $127,980. Apology 129.One of the interesting features of this case is that both sides seek an order for an apology from the other. 130.Two questions arise: first, what is the jurisdictional basis for the Court to make an order against an unwilling defendant to publish an apology; and secondly, the circumstances in which such jurisdiction should be exercised. Related consequential questions such as the terms and format of publication may also arise. 131.Whether a Court in defamation cases can or should order an apology from an unwilling defendant is controversial. However, given that both sides ask for an apology, neither side takes any issue on jurisdiction. 132.In the Plaintiff’s written Opening Submissions, reference is made to Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189, a decision of HHJ Kent Yee, where the learned District Court Judge reviewed a number of recent cases in other jurisdictions which had considered the question of apology.[21] The Judge accepted that he had “general equitable jurisdiction” under s.52B of the District Court Ordinance, Cap. 336,[22] to order an apology, but declined to do so in the circumstances of that case. However, it is pertinent to point out that in that case, as the judge observed, there was “no debate about the jurisdiction”: [143]-[145].[23] 133.Counsel for GoGo also referred toa number of cases from other jurisdictions, including: Dikoko v Mokhatla (6) SA 235 (Constitutional Court of South Africa); Proprietor of Ashdown House School v JKL & MNP [2019] UKUT 259 (AAC) a decision of the UK Upper Tribunal; Ottawa-Carleton District School Board, JW & MN v Jane Scharf [2007] OJ No 3030 (Ontario Superior Court of Justice); Ongwen v Omollo [2034] KECA 1444 (KLR) (Kenya Court of Appeal), and Suleman v Ashoms (27341/2021) [2024] ZAGPJHC 696 (High Court of South Africa). In addition, Counsel also referred to a number of academic articles, including: David Shuman, “The Role of Apology in Tort Law” (2000) 83 Judicature 180; Brent T White, “Say You’re Sorry: Court-Ordered Apologies as a Civil Rights Remedy” (2006) 91 Cornell Law Review 1261 in the context of court-ordered apologies for civil rights claims in the USA; Gijs van Dijck, “The Ordered Apology” (2017) 3 Oxford Journal of Legal Studies 562. 134.I am grateful to counsel for their industry, but when I asked counsel for assistance on the proper understanding of these judicial decisions and academic writing, and whether the principles and arguments canvassed in these authorities are applicable in the Hong Kong context, neither of them responded to the call. I decline to embark on that journey without proper assistance. 135.There is no doubt that the jurisdiction under s.21L of the High Court Ordinance, Cap 4 (the equivalence of District Court Ordinance s.52B), is “very broad”. However, I have reservations as to whether a Court-ordered apology could properly be considered an “injunction”. It has been said that an apology is a form of mandatory injunction, and the Court undoubtedly could made an order requiring a party to carry out a positive act. But an apology may not be the same thing. At the risk of over-simplification, generally speaking mandatory injunctions require the defendant to take positive action to undo the damage or harm he has unlawfully inflicted on the plaintiff so as to restore the status quo ante as far as possible, or compel the defendant to carry out an act which he is legally obliged but have failed to do. An apology may be fundamentally different from those categories of cases. 136.As to the question when the Court should exercise that jurisdiction, the judge in Chow Wing Kai considered Ma Bik Yung v Ko Chun (2006) 9 HKCFAR 888, a case on the scope of s.72(4)(b) of the Disability Discrimination Ordinance, Cap 486, and came to the conclusion that the discretion of the Court should only be exercised in “exceptional circumstances”. While I find the analysis of the learned judge helpful, I have received no submission as to whether Ma Bik Yung, which concerns the specific statutory power in the “novel area” of anti-discrimination law, applies to defamation without qualification: see, for example, the discussion of general points on remedies under that Ordinance in Ma Bik Yung [30]-[32], which may, or may not, apply in the present context. 137.Also, for mandatory injunctions, generally it would be reasonably certain what the defendant has to do, otherwise an injunction would be inappropriate in the first place. In contrast, it is not easy to work out how to determine the terms of the apology, when ex hypothesi the defendant is unwilling to provide one. Where the parties cannot agree on the terms, is the Court going to decide (ie. dictate) the terms, and how should the Court proceed to do so? Would the procedure discussed in Ma Bik Yung [37]-[39] be applicable, and what (if any) modification may be appropriate? Would an ordered apology impose on the defendant in those circumstances serve to escalate rather than deflate the animosity and bad feelings between the parties? 138.And what if the defendant is recalcitrant? Presumably a Court-ordered apology carries with it the potential sanction of contempt of court: Ma Sik Yung at [41]. Is it something that the Court should nevertheless impose on the unwilling defendant, and in what circumstances should the Court exercise that coercive power? 139.It seems to me that these questions (and there may well be others) have to be properly addressed before the Court accepts that it has, and should exercise, the jurisdiction to order an apology from an unwilling defendant. Nevertheless, when I raised these questions with counsel, neither of them offered any helpful assistance. 140.Moreover, and in any case, even if the Court has jurisdiction to make an apology order, it must be right that the discretion should only be exercised in exceptional circumstances. In that connection, neither side has made any submissions as to why an apology is appropriate in this case. For example, counsel for GoGo referred to her witness statement in which she described the distress, physical damage, depression and emotional pain caused by the publication of the libel and the miscarriage. Her evidence in this respect is not challenged, and I accept that evidence, but I have not received any evidence or assistance as to how an apology, especially an insincere apology from an unwilling defendant, might help her in the circumstances of this case. 141.In conclusion, I am not inclined to order an apology even if the Court has power to do so. Disposal 142.For the reasons given above, GoGo’s claim succeeds and I order that general damages of HK$3,000,000 and special damages of $127,980 be awarded. Jade’s counterclaim is dismissed. 143.Interest will be payable on special damages, at the usual rate of 2% above HSBC’s prime rate over the relevant period. 144.The parties are agreed that costs should follow the event, to be taxed if not agreed. I so order. Postscript 145.The trial of this action was set down for 10 days; in the end it took 9 hearing days. Ten files of documents were placed before the Court yet as is often the case most of them were not referred to. It seems obvious to me that once the pleaded issues are properly identified, and the evidence limited to what is strictly relevant to the core issues, the trial could have taken a much shorter time with considerable savings in terms of costs and the court’s resources. 146.More importantly, given that libel trials are often emotionally charged, the trial process ought to be kept as short and focused as possible so as to minimise the inevitable hurt, aggravation, re-opening of old wounds and ill feelings between the antagonists. I would hope that in future, legal representatives would take their duties more seriously in assisting the Court in rigorous case management of this type of cases. [24] 147.In particular, legal representatives should make a realistic assessment whether a ruling on meaning should be sought once the trial is set down before a judge without a jury. Since no evidence is admissible in determining natural and ordinary meaning, the determination could take place relatively quickly. This could be done by way of a preliminary issue under RHC O.33 r.3 or r.4(2). 148.In the current edition of Hong Kong Civil Procedure 2026, para 33/3/1, one finds this note:
149.That commentary, and the case of Keays v Murdoch Magazines, would be applicable to libel trials with juries.[25] In the Hong Kong context, since the increase of the District Court’s jurisdiction in civil matters to $3 million, most defamation cases would be brought in that Court. Even in the Court of First Instance, it has become normal for libel cases to be heard before a judge sitting without a jury. In those cases, an early determination of meaning would likely to be of utility.[26] 150.Take this case as an example, if a ruling on meaning had been sought and the meaning is determined in favour of the plaintiff, the parties would have been able to take a realistic view on what positive defences could be relied upon, limit discovery accordingly and present only the evidence relevant to those issues. I cannot help but think that had that course be taken, a lot of time and costs would have been saved in this case, and the pain and distress inevitably flowing from a public trial involving sensitive personal matters could have been considerably limited.
Mr Kenneth K.Y. Lam, Mr Vincent Shum and Mr Aarif Chan instructed by Alex To & Co. Solicitors, for the plaintiff Ms Cindy Kong, instructed by Howse Williams, for the defendant [1] Ms Cindy Kong. [2] Mr Poon Senior passed away after the events that led to this litigation and the House has since been sold. [3] Statement of Claim, paragraph 5. [4] Statement of Claim, paragraphs 5.1 to 5.5. They are not in chronological order. [5] Mr Kenneth K Y Lam, together with Mr Vincent Shum and Mr Aarif Chan. [6] Statement of Claim, paragraph 12. [7] Defence and Counterclaim, paragraph 23. [8] Defence and Counterclaim, paragraph 11. [9] Defence and Counterclaim, paragraph 28 pleads an alternative case of justification based on other meanings of the 1st Words. This plea was not relied on at trial. [10] Defence and Counterclaim, paragraph 21. [11] Defence and Counterclaim, paragraph 10. [12] Defence and Counterclaim, paragraph 57. [13] Defence and Counterclaim, paragraph 62. [14] Defence and Counterclaim, paragraph 67. [15] Defence and Counterclaim, paragraph 72. Meaning (a) is disputed. [16] Defence and Counterclaim, paragraph 68(g). [17] Except Defence to Counterclaim, paragraph 72(a). [18] Reply and Defence to Counterclaim, paragraph 23. [19] On the basis of Fung Suen Sim v Liu Chun Pong (unreported, HCPI 896/2007, 23 December 2011, §28). [20] Such as the fact that GoGo and Michael did hold a wedding banquet and did live together as husband and wife. [21] Including Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 (Malaysian Court of Appeal); TV3 Network Ltd v Everyday New Zealand Ltd [1993] 3 NZLR 435 (New Zealand Court of Appeal); Summertime Holdings Pty Ltd v Environmental Defendant’s Office Ltd (1998) 45 NSWLR 291 (Young J). [22] District Court Ordinance, Cap. 336, s.52B relevantly provides: “(1) The Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in any action or proceedings in the Court and within its jurisdiction in which the Court considers it just or convenient so to do. (2) The order may be made either unconditionally or on the terms and conditions the Court thinks just.” There is no material difference between that section and High Court Ordinance, Cap. 4, s.21L: “(1) The Court of First Instance may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the Court of First Instance to be just or convenient to do so. (2) Any such order may be made either unconditionally or on such terms and conditions as the Court thinks just.” [23] Gatley on Libel & Slander, 13th ed. (2022) at para. 10-048 cites Chow Wing Kai for this proposition: “In Hong Kong, meanwhile, it has recently been held that a judge hearing a defamation trial has a general equitable jurisdiction to compel an unwilling defendant to apologise to the plaintiff, though exceptional reasons should have to be shown before the power was exercised.” That statement should be treated with caution. [24] RHC O.1A r.3: “The parties to any proceedings and their legal representatives shall assist the Court to further the underlying objectives of these rules.” [25] In Hong Kong, see Peregrine Investments Holdings Ltd v Associated Press [1997] HKLRD 1073, Stone J. [26] See Gatley on Libel and Slander, (13th ed, 2022) para. 32-002 for a discussion of the position in the UK. According to that work, determination of meaning has become the norm since the enactment of the Defamation Act 2013 which abolished the right to trial by jury. | ||||||||||||||||||||||
Cases cited in this judgment