Choy Yuen on, David v. Lam Kin Chung and Another
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HCA 2599/2014 & HCA 110/2018 [2026] HKCFI 5696 HCA 2599/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2599 OF 2014 _________________ BETWEEN
_________________ HCA 110/2018 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 110 OF 2018 _________________ BETWEEN
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________________ JUDGMENT ________________ Introduction 1.This is the trial of the 2 Actions viz HCA 2599/2014 (“HCA 2599”) and HCA 110/2018 (“HCA 110”) by the Plaintiff for defamation against the 1st Defendant and the 2nd Defendant and have been ordered to be tried together. 2.Soka Gakkai International of Hong Kong Limited (香港國際創價學會) (“Association”) was incorporated in 1966 under the Companies Ordinance Cap 32 (“CO”) as a company limited by guarantee with its own Memorandum and Articles of Association (“M & A”). According to the 1st Defendant, the Association was formerly known as Hong Kong Buddhist Nichiren-Shoshu Limited (香港佛教日蓮正宗有限公司). In 1991, the Association changed its name to its present one. 3.Despite the change of its name, the Association is a religious organization for the dissemination of Buddhism and a public charity. The Association has a board of directors known as “Committee” or “Management Committee” (管委會) (“Committee”). Its directors were interchangeable with “Committee Members” in its Articles of Association (“Articles”). 4.At all material times, the Association has been holding properties at various districts in Hong Kong known as Culture Centre (會館), for the dissemination of Buddhism and carrying out its charitable functions. The purpose of holding Culture Centres at different districts was to enable members and Buddhist believers to access a Culture Centre closest to their residence. 5.The principal factual event which prompted these proceedings was that in 2011, the Association sold its Chai Wan Culture Centre to Million Power Limited (“Million Power”) for $80 million and purchased the Sai Wan Ho Culture Centre from Bright Rich Industries Limited (“Bright Rich”) at the price of $23.8 million. The evidence suggests that the sale price of $80 million was lower than market price and the purchase price of $23.8 million was higher than market price. 6.At all material times, the Plaintiff was:
7.At all material times, the 1st and 2nd Defendants were members (since 1970s) of the Association and estate agents by profession. As the 1st Defendant was an estate agent since 1986 [1]. As an experience estate agent, it is reasonable to think he would have accumulated substantial knowledge of property price and their investment returns in Hong Kong. In his witness statement (Mak 1”), the 2nd Defendant stated he had passed the examination of the Estate Agents Authority in 1999. Again, as an experienced estate agent, it is reasonable to think he would be familiar with property sale and purchase transactions and property price, as he stated in Mak 1. 8.In HCA 2599, the Plaintiff’s pleaded claims are based on the following publications:
9.In HCA 110, the Plaintiff’s claims are based on the following publications:
10.In short, the Plaintiff’s pleaded case against the 1st Defendant is only concerned with the Offending Words in (i) the 1st Schedule, (ii) the 3rd Schedule; and (iii) the 4th Schedule. The Plaintiff’s case against the 2nd Defendant is only concerned with the alleged Offending Words in (i) the 2nd Schedule, (ii) the 4th Schedule; and (iii) the 5th Schedule. Background 11.At the material time, the Association had an elaborate decision-making hierarchy and internal organisation which Mr Pow SC for the 1st Defendant describes as “chaotic” and “problematic” in his Opening. Apart from (i) the Committee which was its board of directors, it also maintained and was managed by (ii) the “Supreme Committee” (最高協議會) consisting of some Committee Members and some other ordinary members; (iii) the “4 Representatives Committee”[3] (四者代表者會) consisting of 100 odd members and included all Committee Members and (iv) the “Department Heads Committee” (會館局長會) consisting of department heads of the Association, being full-time staff, some of which are Committee Members. 12.According to a report dated 7 November 2018 by 17 Committee Members of the Association of the year 2011-2012 (“2018 Report”) which was signed by inter alia the Plaintiff although he ceased to be so at the time of the 2018 Report:
13.Pausing here, given that the Association was incorporated under the CO, its decision-making and operation were in law governed by the CO and its Articles ie by its board of directors. 14.Mr Chong submits in his Closing that the Association has a Management Committee ie board of directors but pursuant to Clause 42 of its Articles, it is empowered to delegate its management powers to sub-committees. Clause 42 provides:
15.While Mr Chong submits in his Closing that the above management structure of the Association is undisputed or indisputable, this is actually disputed by the 1st Defendant. 16.Mr Pow SC submits the Plaintiff has never pleaded the Committee had set up or delegated any power to the 3 other Committees as sub-committees pursuant to Clause 42 of the Articles. Further, none of the Plaintiff’s witnesses had mentioned in their witness statements that the 3 other Committees were set up as sub-committees pursuant to Clause 42 of the Articles. 17.This court agrees with Mr Pow SC after cross-checking the Plaintiff’s pleadings and witness statements. 18.According to Mr Pow SC, the membership of the Association is also complicated by the existence of company members and the so-called Kofu members[4]. This is explained in Mr Pow SC’s Closing as follows.
19.The 1st Defendant, as well as the 2nd Defendant, allege that the Association had failed to convene AGMs contrary to its Articles. It was only on 15 January 2014 that the Association held its first AGM. Consequently, it is questionable whether the Articles governing the election of directors[5] had been adhered to and whether the board of directors from time to time was validly constituted. 20.As stated earlier, the principal factual event which prompted these proceedings was that in 2011 the Association sold its Chai Wan Culture Centre and purchased the Sai Wan Ho Culture Centre. For the former, the Association entered into a preliminary agreement dated 28 July 2011 and a formal sale and purchase agreement dated 11 August 2011 with the purchaser Million Power. The Assignment of the Chai Wan Culture Centre was dated 31 October 2011. All were signed by Ng Chor Yuk on behalf of the Association. For the latter, at first, the Plaintiff as purchaser entered into a preliminary agreement dated 26 August 2011 and a formal sale and purchase agreement dated 8 September 2011 with the vendor Bright Rich. Thereafter, he executed a Nomination dated 25 October 2011 nominating the Association to take up the Assignment of the Sai Wan Ho Culture Centre dated 25 October 2011 upon completion. 21.It is indisputable that before entering into the said 2 transactions, except oral valuations from banks, no written valuations from independent, professional valuers had been obtained by the Association. Nor were the members consulted about the sale - this was accepted in the 2018 Report. 22.The 1st and 2nd Defendants’ grievance was that the Chai Wan Culture Centre was sold at an undervalue and the Association had also lost a substantial amount of market rental income if it had not been sold. It was also the 1st and the 2nd Defendants’ grievance that the Sai Wan Ho Culture Centre was acquired at an overvalue. 23.The evidence shows that after purchasing the Chai Wan Culture Centre, Million Power rented it out for $610,000 per month by a tenancy agreement dated 15 October 2013. Despite its date, the term of the tenancy actually commenced on 7 July 2012. Based on a purchase price of $80 million, Million Power would be obtaining an impressive yield of over 9% per annum. If the Association had not sold the Chai Wan Culture Centre, it could have rented it out and obtained such rental income. 24.Importantly, the following valuation reports by professional valuers were available to the 1st Defendant and/or 2nd Defendant in 2015:
25.As for the Sai Wan Ho Culture Centre, according to the Land Search records:
26.The fact that the Chai Wan Culture Centre was sold at an undervalue and the Sai Wan Ho Culture Centre was acquired at an overvalue is accepted by both experts called by the Plaintiff and the 1st Defendant. In their Joint Expert Statement:
27.The Plaintiff claims the Association had passed resolutions to sell and buy the said 2 Culture Centres and authorized him to handle these 2 transactions. 28.For the sale of the Chai Wan Culture Centre, it was pleaded in the CSOC that directors’ resolutions were passed on 25 and 29 June 2011 (“June 2011 Resolutions”) whereby the directors of the Association resolved that the Chai Wan Culture Centre be sold and the Plaintiff, as one of its directors, be authorized to engage estate agents for such purpose. Further, it was pleaded in the CSOC that on 23 July 2011, by another resolution (“July 2011 Resolution”), the directors of the Association resolved that, inter alia, an earlier directors’ resolution of 6 July 2011 be confirmed and that the Chai Wan Culture Centre be sold at a price not less than $65 million. 29.The existence of these alleged directors’ resolutions is disputed by the 1st and 2nd Defendants. 30.It should be noted that no such resolutions can be found in evidence, especially the annexures to Choy 1 or the 2 Core Bundles (“CB”) prepared by the Plaintiff’s solicitors which were supposed to contain all the important documents in support of the Plaintiff’s case. What can be found in CB1 for the year 2011[7] were inter alia (i) an unsigned agenda of the “4 Representatives Committee” dated 29 June 2011 for meeting(s) in July 2011, one item of which was the sale of the Chai Wan Culture Centre, (ii) an undated and unsigned agenda of the “Supreme Committee”for meeting(s) in August 2011, one item of which was about the sale of the Chai Wan Culture Centre, and (iii) a sort of progress report[8] dated 28 July 2011 entitled “東區文化會館出售之事”, the 1st para of which state:
31.The 2018 Report at p 7 stated that:
32.The 2018 Report at p 8 also stated that:
33.In this regard, it is notable that Ng Che Ming (吳志明) (“CM Ng”) a salaried staff since 1987, a Committee member between 1993 and 2013, and a member of the working group referred to below, testified during cross-examination by Mr Pow SC on Day 8 that he did not remember (i) whether there was a meeting of the 22 Committee Members on 25 and 29 June 2011 or (ii) whether the June 2011 Resolutions were passed by the 22 Committee Members on those days. Indeed, in his witness statement (“Ng 1”), CM Ng said what happened on 25 June 2011 was that there was a meeting of the Supreme Committee which passed a resolution to sell the Chai Wan Culture Centre and set up the working group referred to below. At that meeting, only about 10 Committee Members were present and passed the aforementioned resolution. 34.Importantly, in Choy 1 at para 14, the Plaintiff actually contradicted his pleaded case and said:
35.In Mr Chong’s Closing, he no longer contends that there were such directors’ resolution. Instead, at paras 8 and 10 he submits:
36.It is reasonably clear from the above that the Plaintiff’s allegation about the so-called directors’ resolutions for the sale of the Chai Wan Culture Centre is completely false and this court shall so find. This has a serious adverse effect on his credibility. 37.The Plaintiff’s pleaded case on the purchase of the Sai Wan Ho Culture Centre is that:
38.No such directors’ resolution can be found in evidence. 39.In fact, the Plaintiff’s pleaded case is also contradicted by Choy 1 in that it was the Supreme Committee, rather than the board of directors who passed the alleged resolution. This is what the Plaintiff said in Choy 1:
40.Again, in Mr Chong’s Closing, he no longer contends that there was such a directors’ resolution. Instead, at para 21, he submits:
41.According to the CSOC at para 3, the Plaintiff claims he was delegated with the task of engaging estate agents for the sale of the Chai Wan Culture Centre. Yet in Choy 1 at para 14, the Plaintiff expanded his duties to negotiating the terms of sale. In the same paragraph, the Plaintiff said he would report the progress of sale to CM Ng who would, in turn, report to Ng Chor Yuk (吳楚煜) (“CY Ng”). The Trial and witnesses 42.At trial, the parties called the following witnesses:
43.This court has carefully considered the testimony, as well as the demeanour, of all witnesses, and assessed it against the relevant documentary evidence (or the absence of it) and the known and undisputed circumstances of this case. This court has in particular considered the inherent probabilities or otherwise of the witnesses’ testimony and assessed their credibility accordingly in order to resolve, in so far as the same may be necessary, the material factual disputes between the parties. 44.As a matter of longstanding practice and out of abundance of caution, this court has in the course of preparing this Judgment reviewed its own notes taken at the trial and the official transcripts of the trial in order to refresh its memory. This court is also thankful for the detailed written submissions from the legal teams on both sides. They are very helpful. Deliberation The Plaintiff’s case vs the 1st Defendant The 1st Defendant’s Requisitions 45.It is not in dispute that at a meeting on 21 December 2013 and attended by the 1st Defendant and 3 Committee Members viz Li Kam Wing, Lam Ho Man and Wong Tak Kwong, the 1st Defendant presented and thus published to the 3 Committee Members an undated 3-page document with the heading of “根據香港法及HKSGI有限公司章程解釋” on the first page. It was not address to anyone. 46.The 2nd page consists of 11 questions for inter alia the Chairman of the Committee, not the Plaintiff, to answer. All questions related to the management of the Association and were intended to be raised by the 1st Defendant at the impending AGM to be held on 15 January 2014. Only questions 10 and 11 ie the 1st Defendant’s Requisitions are alleged to be defamatory of the Plaintiff. They are set out in the 1st Schedule of the CSOC as follows.
47.It is settled law that, in ascertaining the meaning of the Offending Words, the Judge sitting without a jury has to arrive at a single “right” meaning as “the natural and ordinary meaning” of the words complained of as would be understood by a reasonable man to whom they were published. Next Magazine Publishing Ltd & Others v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160 at 165C-F 48.The natural and ordinary meaning of a statement is the meaning in which it would reasonably be understood by ordinary people using their general knowledge and common sense. This meaning is determined in accordance with the following principles:
49.In Stocker v Stocker [2019] UKSC 17 at [35], the UK Supreme Court has recently endorsed the oft-cited summary in Anthony Clarke MR’s judgment in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]:
50.Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at [42], the learned Judge set out the principles to be applied in ascertaining the meaning of the words in a libel action. The more germane ones are as follows:
51.As far as reference to the Plaintiff is concerned, in the CSOC at para 14, the Plaintiff has pleaded inter alia the following:
52.In the CSOC at para 15, the Plaintiff has pleaded the natural and ordinary meaning of the 1st Defendant’s Requisitions as follows:
53.It can be seen that the Plaintiff’s pleaded case on reference to him is that all members of the Association, including the 3 recipients, knew the Plaintiff was the only one with the responsible and authority for the sale of the Chai Wan Culture Centre. This is in stark contrast to paras 3 and 7 of the CSOC in that:
54.Nothing has been pleaded in the CSOC as to how, after what has been pleaded at paras 3 and 7, all of a sudden the Plaintiff became the only one with the responsibility and authority for the sale of the Chai Wan Culture Centre. 55.In his Closing, Mr Chong submits that the meaning of the 1st Defendant’s Requisitions must be considered by the 3 recipients against the facts known to them as at 21 December 2013. Without any explanation, Mr Chong submits that although framed as questions, parts of the 1st Defendant’s Requisitions are assertions of fact ie
56.Mr Chong further submits that viewed against the factual background, the 3 recipients of the 1st Defendant’s Requisitions would understand them as carrying the following factual implications:
57.As a general submission which applies to all, Mr Chong submits that having regard to the factual background and facts and matters known to the recipients, all 5 documents which contain the Offending Words refer to the Plaintiff. 58.Specifically on the issue of reference to the Plaintiff in the 1st Defendant’s Requisitions, Mr Chong submits in his Closing:
59.The 1st Defendant’s 1st point in defence is that the alleged Offending Words did not refer to the Plaintiff at all. 60.It is elementary that, in an action for defamation, a plaintiff must identify himself as the person defamed. The basic issue is whether the hypothetical reasonable reader would understand the words to refer to the plaintiff: Gatley on Libel and Slander 13 Ed. paras 8-001 and 34-016. 61.The test is an objective one ie to be seen in the eyes of a hypothetical reasonable reader: Gatley on Libel and Slander para 34-017. 62.The law of defamation does not allow an individual to sue in respect of words directed only at a group. Where the words complained of reflect on a body or class of persons generally, no particular member of the body or class can maintain an action unless a reasonable reader could conclude that the plaintiff, as an individual, was pointed at: Gatley para 8-009. 63.The leading case is Knupffer v London Express Newspaper Ltd [1944] AC 116 in which a war-time article accused a Russian emigre group, “Mlado Russ”, of being instruments of Hitler. The group contained 24 members in England and about 2,000 worldwide and the plaintiff was head of the British branch. Although four of the plaintiff’s witnesses said that their minds went to him when they read the article, the House of Lords held that as a matter of law the words were incapable of referring to the plaintiff as an individual. 64.In the present case, the document in question, including the page containing the 1st Defendant’s Requisitions, did not expressly name the Plaintiff. 65.Mr Pow SC submits that the contents of the 1st Defendant’s Requisitions did not point to any particular person. Even if they could be read to contain some kind of derogatory imputation, only the Committee was targeted. A hypothetical reasonable reader would not understand the Offending words as referring to any individual Committee Member because the 1st Defendant was clearly saying that he and other members were kept in the dark about the 2 transactions. Rather, the hypothetical reasonable reader will only understand the Offending Words as the 1st Defendant asking the questions: (1) What were the details of the process of selling the Chai Wan Property? and (2) How would the Committee account for the Association’s loss of revenue? In other words, the 1st Defendant was questioning the Committee, not the Plaintiff. 66.Mr Pow SC further submits that the Plaintiff’s pleaded case suffers from the following fallacies:
67.Lastly and importantly, Mr Pow SC submits in his Closing:
68.The 1st Defendant’s 2nd point of defence in relation to the meaning of the Offending Words is that they are not defamatory at all. 69.In this regard, Mr Pow SC submits it is important to look at the context and circumstances of the publication of the 1st Defendant’s Requisitions as a whole in determining the meaning of the 1st Schedule. In particular:
70.This court agrees with Mr Pow SC. 71.In this court’s view, Question 10 is clearly a question and does not carry any of the factual implications suggested by Mr Chong. As for Question 11, this court accepts that the 1st part of it is an assertion of fact. But again, this court is not persuaded that that the assertion of fact carries the implications suggested by Mr Chong. Take for instance, the suggested factual implications that (i) the Plaintiff had never been authorized by the Association before entering into the preliminary sale and purchase agreements of the 2 Culture Centers or (ii) the Plaintiff had sold the Chai Wan Culture Centre without first obtaining professional valuation. The 1st part of Question 11 simply had nothing to do with these so-called factual implications. 72.Lastly, this court agrees the Plaintiff’s pleaded meaning at para 15(e) of the CSOC is extremely strained and far-fetched since Questions 10 and 11 cannot possibly be read as imputing any breach of duty or incompetence on the part of any individual. 73.To conclude, this court is of the view that the Plaintiff’s complaint based on the Offending Words in the 1st Schedule is unmeritorious and should be dismissed. Further consideration of the 1st Defendant’s other defences such as qualified privilege, justification and fair comment is academic and serve no useful purpose other than to lengthen this Judgment. The 1st Defendant’s Post-AGM Statement 74.The Plaintiff’s pleaded case at para 19 of the CSOC is that on a date unknown after the AGM on 15 January 2014, the 1st Defendant published and circulated among members and non-members of the Association a statement[15] under the heading “the Driving Force for Convening an Annual General Meeting of Members on 15.1.2014” (推進召開2014年1月15日會員大會AGM的緣起) (“D1’s Post-AGM Statement”). 75.The Offending Words in Chinese together with the Plaintiff’s own translation can be found in the 3rd Schedule of the CSOC as follows.
76.If one looks at the 1-page D1’s Post-AGM Statement itself, one cannot find all the above Offending Words in it. 77.This anomaly was resolved in Lam 1 and the 1st Defendant’s Opening where Mr Pow SC explained the origins of the Offending Words in the 3rd Schedule as follows. 78.After the AGM on 15 January 2014, CY Ng called the 1st Defendant saying that 3 Japanese leaders from Soka Association Japan would want to meet the 1st Defendant. It was under these circumstances that a meeting was arranged for the 1st Defendant to meet the 3 Japanese Leaders at the Kowloon Tong Headquarter of the Association on 23 January 2014. 79.On 23 January 2014, at the meeting attended by CY Ng, the 3 Japanese leaders, Mr Lam Ho Man (“HM Lam”), a Committee Member, the 1st Defendant passed a bundle of documents to HM Lam for him to pass to CY Ng and the 3 Japanese leaders. The bundle of documents consisted of inter alia:
80.The Offending Words in the 3rd Schedule consisting of 8 paragraphs can be broadly divided into 3 parts:
81.As far as reference to the Plaintiff is concerned, the Plaintiff relies inter alia on the following at para 20 of the CSOC:
82.Mr Chong submits that the Plaintiff was expressly named, leaving no doubt as to the target of the 1st Defendant’s allegations. As this court understands it, Mr Chong is referring to para 2 of the 3rd Schedule quoted above. Anyway, Mr Chong submits that even absent naming, the reference to the transaction of the Chai Wan Culture Centre and in the committee appointments would have made identification inevitable to the readers. There is however no further explanation how that would be so. 83.Mr Chong then submits the natural and ordinary meaning of D1’s Post-AGM Statement is that:
84.The 1st Defendant’s principal line of defence is that the Offending Words in the 3rd Schedule did not refer to the Plaintiff at all. 85.This court agrees. 86.First, while para 2 in the 3rd Schedule did name the Plaintiff, the 1st Defendant was simply explaining how he came to know about the sale of the Chai Wan Culture Centre. Further, none of the accusations in the 3rd Schedule pointed the finger at the Plaintiff as the person responsible for the sale of the Chai Wan Culture Centre at an undervalue or for all other alleged mismanagement of the Association. 87.In so far as the Plaintiff relies on what he has pleaded in para 20 of the CSOC ie (i) the Plaintiff was the only member of the Association entrusted with the duty and authority to sell the Chai Wan Culture Centre, a fact within, the knowledge of all members, and (ii) the Plaintiff was the only member of the Association actually involved in the sale and disposal of the Chai Wan Culture Centre, a fact within the knowledge of all members, this reliance is misconceived and has already been dismissed by this court in relation to the 1st Defendant’s Requisitions as they are not supported by evidence. 88.Second, it seems to this court wholly far-fetched to read the Offending Words in the 3rd Schedule as accusing, directly or implicitly, that the Plaintiff was responsible for the mismanagement of the Association.
89.The 1st Defendant’s second line of defence is that the true meaning of the Offending words was not defamatory of the Plaintiff at all. 90.First, para 1 of the 3rd Schedule were taken from “HKSGI現時面對的問題”. In this document, the 1st Defendant set out 6 problems faced by the Association, all of which were concerned with its corporate governance. They did not refer to any individual at all, let alone the Plaintiff who was only 1 out of 22 Committee Members. Para 1 was the 4th problem listed there. the 1st Defendant was simply expressing his view of the financial undesirability of the sale of the Chai Wan Culture Centre. 91.It can also be seen that after setting out the problems faced by the Association, on the same page, the 1st Defendant went on to put forward his ideas of future reforms under “HKSGI未來5年發展的方向性”. For instance, at para 12, the 1st Defendant suggested the establishment of 9 working groups inviting professionals to provide advice to the Committee and assist in their decision-making. 92.Second, paras 2 to 7 of the 3rd Schedule were taken from D1’s Post-AGM Statement “推進召開2014年1月15日會員大會AGM的緣起”. Hypothetical reasonable readers would only understand that the 1st Defendant was trying to explain why he pushed for the AGM. Nothing derogatory was said about the Plaintiff. On the contrary, the 1st Defendant respectfully referred him as “蔡兄”. 93.The meaning of paras 2 to 7 of the 3rd Schedule are entirely self-explanatory. Mr Pow SC submits that the true meanings of the words are set out at paras 52 to 61 of his Opening and shall not be repeated here. Suffice it to say that this court fully agrees with Mr Pow SC. In other words, the hypothetical reasonable reader would not understand those words to have the meaning put forward by Mr Chong. 94.Para 8 of the 3rd Schedule was taken from a section “對寡頭決策文化的衝擊和挑戰” under “規範 HKSGI管委會管治及問責架構”. The 1st Defendant was explaining what should be the proper structure of corporate governance and directly criticised the Association of lack of transparency and consultation of members. 95.In conclusion, the Plaintiff’s pleaded defamatory meanings of the Offending Words in the 3rd Schedule arose out of an unreasonably strained reading of them. In the context of their publication, this court is of the view that a hypothetical reasonable reader would only understand the Offending Words as directing towards the organisation, structure and corporate governance of the Association and the Committee as a body or those directors who were salaried staff), but not on the Plaintiff as an individual. Further, this court is of the view that the Offending Words are not defamatory of the Plaintiff at all. The 2nd Defendant’s Email Statement 96.The Plaintiff’s pleaded case at paras 22 and 23 are that:
97.It can be seen that the Plaintiff pleaded case against the 1st Defendant consists of his re-publication of the 2nd Defendant’s Email Statement on 3 specific occasions ie 13, 29 September and 7 October 2015 only. 98.The Offending Words in Chinese together with the Plaintiff’s own translation can be found in the 4th Schedule of the CSOC as follows.
99.The Offending Words in the 4th Schedule came from a Chinese document entitled “要求盡快召開HKSGI特別會員大會” dated 27 June 2015 which can be found at CB1 #50 ie the 2nd Defendant’s Email Statement. 100.The 2nd Defendant’s pleaded case in his Combined Defence (“D2 CD”) at para 19 is that he had written and published the 2nd Defendant’s Email to a few members of the Association but not as many as more than 100 members and non-members of the Association as alleged. As the 2nd Defendant was responding to para 22 of the CSOC, it stands to reason that he was referring to the Email which had attached thereto the 2nd Defendant’s Email Statement dated 27 June 2015. The 2nd Defendant also admitted at para 20 that on 2 September 2015, he did distributed the 2nd Defendant’s Email Statement to some members of the Association, but it was immediately stopped by 2 leaders of the Association. All copies were immediately collected and returned to the 2nd Defendant. 101.In Mak 1 the 2nd Defendant admitted he had distributed CB1 #50 by email on 27 June 2015[19] and at the seminar on 2 September 2015. This would explain why some members had obtained a copy of it even before the 13 September 2015 seminar. 102.Unlike the 2nd Defendant, the 1st Defendant’s case is that he had not published or re-published the 2nd Defendant’s Email Statement at all. Rather, he had pleaded in his Combined Defence (“D1 CD”) at para 32 that on 13 and 29 September and 7 October 2015, the 2nd Defendant and him, at seminars held by the Association, had distributed leaflets (“Leaflets”) to members of the Association. The Leaflets can be found in Lam 1 as an annex. They can also be found at CB1 #52. It is not in dispute that they were prepared by the 1st Defendant himself. If one compares them side by side, it would be obvious that the Leaflets (consisting of 3 pages) and the 2nd Defendant’s Email Statement (consisting of 4 pages) are two different documents. For instance:
103.According to the 1st Defendant, the purpose of distributing CB1 #52 was to improve transparency of the Association and to call for a general meeting of the Association. For that reason, a major difference between CB1 #50 and CB1 #52 is that at the beginning of the Leaflets, there was this headline “聯署要求盡快召開香港國際創價學會(HKSGI)會員大會” and at the end of the Leaflets, there was space allowing members to sign and put down their contact details, so that the 1st Defendant can collect enough signatures to call for a general meeting. 104.As Mr Pow SC submits, the first critical issue to be determined is which document the 1st Defendant (and the 2nd Defendant) distributed on the 3 occasions in question ie the document at CB1 #50 or CB1 #52. No other document was pleaded by the Plaintiff to support his cause of action. The burden is on the Plaintiff to prove that CB1 #50 was distributed by the 1st Defendant on those occasions. This is important since the Plaintiff has not pleaded an alternative case based on the publication of the document at CB1 #52. If this court finds the 1st Defendant had not published CB1 #50, then the Plaintiff fails to prove his pleaded case. 105.This court agrees. It is trite law that each communication of the libel complained of is a sperate publication and each publication gives rise to a separate cause of action: Gatley para 7-004. Since the libel complained of was pleaded as contained in the 2nd Defendant’s Email Statement ie the document at CB1 #50, his claim stands or falls depending on whether he can prove his pleaded case. 106.As the burden of proof is on the Plaintiff, this court shall go first to Mr Chong’s Closing at paras 180 to 191 to see what he is or is not able to say in support of the Plaintiff’s case and what he does say stands up to scrutiny. 107.For the occasion on 13 September 2015, this court has considered Mr Chong’s Closing at paras 180 to 184. The long and short of it is that Mr Chong is unable to point to any evidence from any witnesses that the 1st and 2nd Defendants had distributed the document at CB1 #50 to any member attending the so-called “同樂日 (Family Day)” in the Tai Po Culture Centre. That is the end of this cause of action. 108.For the occasion on 29 September 2015, this court has considered Mr Chong’s Closing at paras 185 to 188. That was a seminar organized by Tang[20] for members of the “HK3 District” (of which the 1st Defendant was not a member) and attended by 100 members and non-members including the Plaintiff and his family members. After the seminar had come to an end at around 9:30pm, the 1st and 2nd Defendants were seen distributing leaflets to people attending the seminar at the entrance. 109.Mr Chong submits that whilst Tang did not receive a copy of the Leaflets directly from the 1st and 2nd Defendants, he saw the contents of the Leaflets and was able to say that this was the 2nd Defendant’s Email Statement in the form of a leaflet as he saw the name of the Plaintiff in it, which was consistent with CB1 #50. 110.At this juncture, this court would digress and examine the evidence of Tang in greater detail. As one shall see, what Mr Chong submits is an over-simplification of the evidence. 111.At para 10 of Tang’s witness statement (“Tang 1”), he said this:
112.The leaflet which Tang said he had read on an unidentified day in 2015 with the Plaintiff’s name on it is “THS-3” of Tang 1, which is a copy of the 2nd Defendant’s Email Statement. 113.At para 103 of Mr Pow SC’s Closing, he refers this court to Tang’s testimony in cross-examination by him in the morning on Day 11 as follows :
114.At para 105 of Mr Pow SC’s Closing, he refers this court to another passage of Tang’s testimony in cross-examination by him which follows shortly after the one above. It is unnecessary to quote the passage. Suffice it to say there was a clear admission by Tang that he could not tell which document was distributed by the 1st and 2nd Defendants at the 2 seminars held on 13 and 29 September 2015. 115.To sum up, it is clear to this court that the tenor of Tang’s evidence is (i) he could not tell what documents were distributed by the 1st and 2nd Defendants on 13 and 29 September 2015 and (ii) he was shown by others and had read a copy of CB 1 #50 prior to 13 September 2015. 116.Other than Tang, whose evidence does not assist the Plaintiff’s case at all, Mr Chong is unable to point to any evidence from any witnesses that the 1st and 2nd Defendants had distributed the document at CB1 #50 to any member attending the seminar on 29 September 2015. 117.Now going back to Mr Chong’s Closing at para 188, the last thing he submits in relation to the seminar on 29 September 2015 is that during cross-examination on Day 13, the 1st Defendant admitted that “This Director (此董事)” mentioned in the Leaflets ie CB1 #52 was meant by him to be a reference to the Plaintiff. Because of that, the dispute as to which document ie CB1 #50 or CB1 #52 was distributed by the 1st Defendant becomes insignificant, especially when the contents of the two documents are almost identical. 118.With respect, this court is unable to accept that submission. If the 1st Defendant had only distributed the Leaflets at the seminar on 29 September 2015, then the Plaintiff does not have a cause of action based on his alleged publication of the 2nd Defendant’s Email Statement ie CB1 #50 at that seminar. The reasons have been made clear earlier in this Judgment. 119.Lastly, for the occasion on 7 October 2015, Mr Chong only has 3 paras to say in his Closing. It was a seminar entitled “勝利經典學習會” held at the Kowloon Tong Culture Centre. Mr Chong submits that 900 members and non-members attended the seminar. The 1st and 2nd Defendants were seen by the Plaintiff, Chu[21] and CM Ng[22] distributing leaflets at the entrance. 120.Just to digress a bit, neither the Plaintiff nor CM Ng said in their witness statements that they had asked for or had obtained a copy of the leaflets distributed by the 1st and 2nd Defendants at that seminar. There was no explanation why they did not do so. 121.As for Chu, whilst not receiving a copy directly from the 1st and 2nd Defendants, he said he had obtained a copy from a member at the seminar and he identified the copy as CB1 #50. Mr Chong submits that this court should accept the evidence of Chu as to what he had received from a member on that occasion. His evidence is said to be supported by Woo[23] who had received a leaflet containing the Plaintiff’s name [B1/73 (para.5); 78-79]. Other than that, there is no further explanation as to why this court should accept Chu’s evidence. There is also no suggestion that Woo had received a copy of CB1 #50, directly or indirectly at that seminar. 122.Again, at this juncture, this court would digress and examine the evidence of Chu and Woo in greater detail. 123.In Chu’s witness statement (“Chu 1”) at para 22, he said this:
124.CCW-1 looks like a copy of the 2nd Defendant’s Email Statement ie CB1 #50, but as evident from Chu’s testimony in court, it was not the one he obtained from a member at the seminar back in October 2015. 125.This was what Chu said during cross-examination by Mr Pow SC in the afternoon on Day 10:
126.In this court’s view, Chu’s evidence in Chu 1 is rather curt and curious. He said since 21 March 1985, he was a Committee Member of the Association (until end of 2013) and claimed he got to know the 1st and 2nd Defendants through the Association in mid-70s even before he knew the Plaintiff. Yet when his wife was allegedly refused a copy of the leaflets that the 1st and 2nd Defendants were supposedly keen to distribute, he did not ask for a copy himself. Instead, Chu argued with the 1st Defendant why he refused to give one to his wife. After the argument, he still did not ask either the 1st or the 2nd Defendant for a copy himself. This is inexplicable and Chu did not see fit to explain it. It may be that there had already been some bad feelings among Chu and the 1st or the 2nd Defendant prior to 7 October 2015. But Chu did not disclose this in Chu 1. 127.Chu’s testimony in the box is no better. When asked by Mr Pow SC, Chu refused to accept that annexure CCW1 of Chu 1 was in fact just a copy that the Plaintiff’s lawyers showed it to him when his witness statement was being prepared in 2019. Instead, he said he could recognise the document as the one he received at the October 2015 seminar from another member. This is quite improbable for someone to be able to remember a document which he saw 4 years ago, but did not find it sufficiently important to keep. 128.All in all, this court does not find Chu a credible witness and shall reject his evidence that he had actually received a copy of CB1 #50 at the seminar in October 2015. 129.As far as Woo is concerned, this is what he said at para 5 of his witness statement (“Woo 1”):
130.NT-1 appears to be a copy of the 2nd Defendant’s Email Statement ie CB1 #50. 131.It is reasonably clear from Woo 1 at para 5 that he did not know what leaflets were distributed by the 1st or 2nd Defendant for the occasion on 7 October 2015. All he can recall is that he received a document at some unknown time in 2015 with the name “Choy Yuen On” in it and it was about the sale of the Chai Wan Culture Centre and the purchase of the Sai Wan Ho Culture Centre. His evidence does not assist the Plaintiff’s case at all regarding what happened at the seminar held on 7 October 2015. 132.On the whole, this court finds the 1st Defendant a credible witness and accepts his evidence. On balance of probabilities, it is more likely than not that the 1st and 2nd Defendants actually distributed the Leaflets at CB1 #52 at those 3 seminars on 13 September 2015, 27 September 2015 and 7 October 2015. If so, the Plaintiff fails to prove his case. 133.To conclude, for all the above reasons, this court is of the view that the Plaintiff’s claims against the 1st Defendant should be dismissed and shall so hold. Further consideration of the 1st Defendant’s other defences such as qualified privilege, justification and fair comment is academic and would serve no useful purpose. The Plaintiff’s case vs the 2nd Defendant 134.Just to recap, the Plaintiff’s pleaded case against the 2nd Defendant is based on:
“The 2nd Defendant’s Letter Statement” 135.In his Closing, Mr Chong has revised and expanded on the Plaintiff’s case, largely based on Choy 1 at paras 56 - 8, as follows. 136.At the AGM on 15 January 2014, the 2nd Defendant distributed a 3-page document comprising (1) the 2nd Defendant’s Letter Statement; (2) a newspaper article entitled “宏德居一樓全層鋪1.61億售”; and (3) and a photo of an advertisement for the sale for “柴灣柴灣道341-343號宏德居”. The 2nd Defendant distributed about 10 copies to Committee Members on the stage and another 10 copies of the same to Members off-stage.[24] For the present purpose, one need only concentrate on (1) because that is what the Plaintiff relies on in his CSOC and where the Offending Words in the 2nd Schedule come from. 137.Mr Chong further submits the 2nd Defendant also orally reiterated the contents of the 2nd Defendant’s Letter Statement on that occasion but that is not part of the Plaintiff’s complaint in the CSOC and whether or not that allegation is true, it is irrelevant. 138.The 2nd Defendant admits he had written and published the 2nd Defendant’s Letter Statement to some Committee Members and a few members in D2 CD but he denies the Statement referred to the Plaintiff and the Plaintiff’s name was not mentioned at all. 139.As far as reference to the Plaintiff is concerned, the Plaintiff has pleaded inter alia the following at para 17 of the CSOC:
140.Specifically on the issue of reference to the Plaintiff in the 2nd Defendant’s Letter Statement, Mr Chong submits that although the Plaintiff was not named, the readers were Committee Members and Members and they knew the Plaintiff was the person responsible for dealing with the external affairs of the transaction e.g. contacting estate agents, finding suitable premises and price negotiation. The allegations could only have been understood to refer to the Plaintiff. 141.The problem with Mr Chong’s submission is that it does not correspond with the particulars at para 17 of the CSOC quoted above. 142.The problem with the Plaintiff’s pleaded case is that it is contradicted by the evidence. 143.First, in the 2018 Report at p 7 item 8, it was stated that CY Ng was the responsible person (負責人) and CM Ng and the Plaintiff were just members of the working group (工作小組). The Plaintiff was only entrusted with the task of liaising with various estate agencies but he was not responsible for the sale as such. Second, the 2018 Report at p 9 1st paragraph stated that generally it would not report the process of the sale to members. 144.These points have been made by Mr Pow SC in relation to the 1st Defendant’s Requisitions above and they apply equally to the 2nd Defendant’s Letter Statement. 145.The other problem with Mr Chong’s submission is that even assuming the readers ie the Committee Members knew the Plaintiff was the person responsible for dealing with the external affairs of the transaction, that is not the same as saying those Committee Members knew the Plaintiff was the only person responsible for the sale of Chai Wan Culture Centre, which he obviously was not. The duty to sell the Chai Wan Culture Centre rested on CY Ng who signed the preliminary sale and purchase Agreement on 28 July 2011. CM Ng also admitted in the box during cross-examination that ultimately whether and when to sell Chai Wan Culture Centre, and at what price to sell, would not be decided by the working group. Again, these points have been made by Mr Pow SC in relation to the 1st Defendant’s Requisitions above and they equally apply to the 2nd Defendant’s Letter Statement. 146.Lastly, if one looks at the 2nd Defendant’s Letter Statement as a whole, it is far-fetched to suggest the document was targeting any particular individual. Rather it is complaining about the sale of the Chai Wan Culture Centre at an undervalue and the loss of rental income as a result of the sale. At most, it is targeting the Committee or whichever Committee(s) which approved the sale, rather than the Plaintiff who was not the decision-maker at all. 147.To conclude, the Plaintiff’s case that the 2nd Defendant’s Letter Statement was referring to him is wholly unmeritorious. On this point alone, the Plaintiff’s case based on the 2nd Defendant’s Letter Statement must fail. “The 2nd Defendant’s Email Statement” 148.Just to recap, at para 22 of the CSOC, the Plaintiff has pleaded the following:
149.Para 23 of the CSOC deals with republication of the 2nd Defendant’s Email Statement on 2, 13, 29 September 2015 and 7 October 2015. 150.This court has earlier dealt with what was actually distributed by the 1st and 2nd Defendants on 13 and 29 September as well as 7 October 2015 and found as a fact that what was distributed by them on those 3 occasions was not the so-called the 2nd Defendant’s Email Statement to be found at CB1 #50, but the Leaflets at CB1 #52 instead. 151.What is therefore left to be considered is the 2nd Defendant’s Email Statement found at CB1 #50 and attached to the email sent on 1 July 2015 and what was distributed by the 2nd Defendant alone on 2 September 2015. In this regard, this court has earlier mentioned the 2nd Defendant’s admission in D2 CD at paras 19 and 20 that the attachment to his email as well as what he had distributed on 2 September 2015 was indeed the one found at CB1 #50. 152.The next question is whether the Plaintiff was referred to in the 2nd Defendant’s Email Statement. On this question, it is pleaded in para 24 of the CSOC that:
153.It is true that the Plaintiff’s full name was written and revealed in the 2nd Defendant’s Email Statement but not in connection with the sale of the Chai Wan Culture Centre, the purchase of the Sai Wan Ho Culture Centre or other queries raised in it. The only paragraph in which the Plaintiff’s name was mentioned was para 3.1 as follows:
154.If one reads the 2nd Defendant’s Email Statement as a whole, its main theme and content is about mismanagement of the Association and its lack of transparency which called for an explanation by the Committee at a general meeting. Para 3.1 was only one out of a number of matters which required an explanation. 155.Regarding the allegation that the Plaintiff was the only person with the duty to sell the Chai Wan Culture Centre and to purchase the Sai Wan Ho Culture Centre, this court has earlier in this Judgment found that was not borne out by the evidence. So that does not help the Plaintiff either. 156.In other words, this court is not persuaded that the Plaintiff was referred to in the 2nd Defendant’s Email Statement. In the event that this court is found to be wrong on it, this court will go on to deal with the next question. 157.The next question is the natural and ordinary meaning of the words complained of. In this regard, the Plaintiff has pleaded extensively in the CSOC as follows:
158.Focusing on the heading of para 3 and the content para 3.1 of the 2nd Defendant’s Email Statement which named the Plaintiff, if the entire 2nd Defendant’s Email Statement consists only of the heading of para 3 and para 3.1 and nothing else, it might well be arguable that the hypothetical ordinary and reasonable reader would read it to mean there are reasonable grounds to suspect the Plaintiff had obtained profit from monopolizing works in renovating the culture centres for the Association. But the 2nd Defendant’s Email Statement does not consist only of the heading of para 3 and para 3.1 - it is trite law that the document must be construed as a whole. 159.In this court’s view, reading the 2nd Defendant’s Email Statement as a whole,
160.To conclude, the Plaintiff has failed to persuade this court that the 2nd Defendant’s Email Statement carries the meaning pleaded in the CSOC. In the premises, the Plaintiff’s claim based on the Offending Words in the 4th Schedule is unmeritorious and should be dismissed. “The 2nd Defendant’s WhatsApp Message” 161.This can be dealt with very briefly. 162.At para 26 of the CSOC, the Plaintiff has pleaded the following:
163.While the 2nd Defendant was ambiguous in D2 CD as to whether the 2nd Defendant’s WhatsApp Message made reference to and/or reproducing the 2nd Defendant’s Email and Email Statement, this is actually admitted in the 2nd Defendant’s Opening which reads:
164.The same admission can be found in Mak 1 at para 22. 165.As far as reference to the Plaintiff is concerned, it is pleaded in para 27 of the CSOC the same particulars as those in relation to the 2nd Defendant’s Email Statement. 166.As far as the meaning is concerned, the Plaintiff simply relies on the same meaning as pleaded in relation to the 2nd Defendant’s Email Statement: paras 25 and 28 CSOC. 167.For the same reason given in relation to the 2nd Defendant’s Email Statement, this court is of the view that (i) there is no reference to the Plaintiff the 2nd Defendant’s WhatsApp Message and (ii) there is nothing in the 2nd Defendant’s WhatsApp Message which is defamatory of the Plaintiff and shall so hold. 168.In any event, looking at the words in the 5th Schedule, this court simply cannot find anything which is defamatory of the Plaintiff at all. 169.For these reasons, this part of the Plaintiff’s claim is also unmeritorious and should be dismissed. 170.To conclude, for all the above reasons, this court is of the view that the Plaintiff’s claims against the 2nd Defendant should be dismissed. Further consideration of the 2nd Defendant’s other defences such as qualified privilege, justification and fair comment is academic and would serve no useful purpose. Disposition and costs order nisi 171.The Plaintiff’s claims against the 1st and 2nd Defendants are hereby dismissed. 172.Costs should follow the event. There shall be an Order nisi that costs of the entire Action be to the 1st and 2nd Defendants, to be taxed if not agreed, with certificate for 2 counsel in respect of the 1st Defendant and paid by the Plaintiff forthwith.
Mr K M Chong and Mr Alvin Chong, instructed by M/s T K Tsui & Co, for the Plaintiff Mr Jason Pow SC and Mr Peter K C Wong, instructed by M/s Rowdget W Young & Co, for the 1st Defendant The 2nd Defendant was not represented and appeared in person [1] As stated in his witness statement (“Lam 1”) [2] There is no suggestion in the CSOC that all 200 of them received the 2nd Defendant’s Letter Statement. [3] Also known as “Representatives Committee” [4] Also known as religious members. [5] Including clauses 30 and 31. [6] While in the box, the Plaintiff’s expert agreed that the market value was somewhere between his assessment and the assessment of the 1st Defendant’s expert. [7] No 2011 documents can be found in CB2. [8] Described in the Index of CB1 as part of the undated agenda of the “Supreme Committee”. [9] CY Ng - see below. [10] The Plaintiff. [11] Hence, no evidence is admissible on this issue. However, where an innuendo was pleaded, witnesses could be called to give evidence of the meaning in which they understood the statement, although their evidence was not conclusive: Duncan and Neill on Defamation 5th Ed para 5.24 and fn 1. In this case, the Plaintiff has not pleaded any innuendo. [12] The actual word used by the learned Judge was “fictitious”. But it is more common to refer this person as hypothetical. [13] See the footnote above. [14] The document is actually a preliminary sale and purchase Agreement. [15] Consisting of 1 page. [16] There is no such legislation. [17] The Plaintiff said so in para 1 of Choy 1. [18] This is a minor mistake. On the available evidence, what can be found is an email dated 1 July 2015. It is the attached document ie the 2nd Defendant’s Email Statement which was dated 27 June 2015. D2 also made the same mistake in Mak 1. [19] This is a minor mistake. On the available evidence, what can be found is an email dated 1 July 2015. It is the attached document ie the 2nd Defendant’s Email Statement which was dated 27 June 2015. [20] PW6. [21] PW5. [22] PW2. [23] PW3. [24] According to Choy 1, the 2nd Defendant also gave a copy to the chairman of the meeting. [25] As stated earlier, on the evidence, the email was sent out on 1 July 2015. It is the attached document ie the 2nd Defendant’s Email Statement which is dated 27 June 2015. [26] Ie the 2nd Defendant’s Email Statement at CB1 #50. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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