Wong Sui Fung v. Dr. Yip Siu Keung
Read the full judgment text of HCA 5595/2000 on BabelCite. This High Court CFI judgment was delivered on 23 September 2003.
1. This is a defamation suit between two neighbours.
Cites 2 cases
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HCA005595/2000 HCA 5595/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 5595 OF 2000 ____________
____________ Coram: Deputy High Court Judge A Cheung in Court Dates of Hearing: 13-17 January, 15-17, 21-23 July 2003 Date of Judgment: 23 September 2003 _______________ J U D G M E N T _______________ 1.This is a defamation suit between two neighbours. 2.The Plaintiff is a senior Chinese language officer of the Official Languages Agency ("OLA"). The OLA is a government agency responsible for providing translation and interpretation services to all government bureaus and departments. Under the posting policy of the OLA, Chinese language officers are posted to different bureaus and departments for a period of about 3 years. In February 2000, the Plaintiff was newly posted to the Chinese Language Unit of the Education and Manpower Bureau where she worked under a chief Chinese language officer. Her main duties were to translate documents from Chinese to English and vice versa. She also assisted the chief Chinese language officer in running the Chinese Language Unit consisting of 4 members, ensuring that it provided effective translation and interpretation services to the whole bureau. According to the Plaintiff whose evidence in this respect I accept, the Chinese Language Unit was not substantively involved in any education policy making process or teaching work. 3.The Plaintiff is (and was at all material times) a co-owner of House D of Greenland Villas in Shatin, the New Territories. The other co-owner (Madam Sham) is the Plaintiff's mother-in-law, with whom the Plaintiff and her husband (Mr Li) and their children reside together in House D. 4.Greenland Villas was developed in the 80s. It comprises 9 two-storey houses, units A to J. Its management is governed by a Deed of Mutual Covenant. Originally, pursuant to the terms of the Deed of Mutual Covenant, the estate was managed by a professional manager (Chiap Hua). Management fees were paid by the various house owners to and collected by Chiap Hua. However because of several burglaries that unfortunately happened in the estate, and the resulting arguments between some of the owners and Chiap Hua regarding Chiap Hua's standard of management, Chiap Hua eventually resigned as the manager in 1989. After Chiap Hua's resignation, there was an attempt by the owners of Greenland Villas to form an owners' incorporated, but for reasons that I need not go into, the attempt was unsuccessful. 5.It was in those circumstances that the owners of the estate formed a somewhat informal owners' committee to provide basic management services to the estate, such as the employment of a caretaker and the provision of garbage collection service. In due course, Mr Li, the husband of the Plaintiff, no doubt (to my mind) as the representative of House D's co-owners, became the so-called "chairman" of the committee, whereas Mr Cheng (owner of House F) became its treasurer. 6.According to Mr Cheng's evidence which I have no hesitation in accepting in its entirety, he was in such capacity responsible for all financial matters, including the collection of management fees from the various house owners, regarding the provision of basic management services in the estate. According to his evidence, Mr Li, who essentially represented House D, was not particularly good in terms of payment of management fees. But I need not dwell on what happened prior to 1998. What cannot be seriously disputed, and I so find on the evidence before me, is that from January 1998 until July 2000 when eventually an owners' incorporated was formed, House D fell into arrears with management fees in a total sum of no less than $89,000. 7.On the evidence before me, there cannot be any doubt also that at least starting from late 1999, some of the more active owners in the estate including Mrs Chau of House J, Ms Chan of House H, and Mr Cheng of House F, were desirous of forming an owners incorporated, out of a genuine wish to better manage the estate in general, and to tackle the growing problem of outstanding management fees in particular. In relation to management fees, I have no difficulty in accepting the evidence of the Defendant's witnesses, particularly that of Mr Cheng's, that the fact that Mr Li (of House D) was in arrears with management fees, despite his status as the so-called "chairman" in the estate, had set a less than satisfactory example to others, thereby aggravating the problem of outstanding management fees in the estate. 8.I have also no doubt on the evidence before me that at least Mr Li himself, for reasons that I will come back to, was not in favour of the formation of an owners' incorporated, or at least the immediate formation of the owners incorporated until certain matters in his agenda had been dealt with. I will deal with the attitude of the Plaintiff in due course. 9.The Defendant, a medical doctor in private practice, purchased House E, which is next door to House D occupied by the Plaintiff and her family, in 1999. Rather extensive renovation work was carried out by the Defendant starting from late 1999; the work was completed in March/April 2000, and the Defendant and his wife moved into House E in April 2000. Although there is some controversy amongst the parties regarding when the relationship between the two (new) neighbours turned sour ( - according to the Plaintiff's case, it went sour when the Defendant started raising the party wall separating the gardens of the two adjacent houses despite Mr Li's and his family's objections; according to the Defendant and his wife, it happened subsequently when the Defendants raised the boundary walls between the garden of House E and two open car parking spaces belonging to House D and House E respectively and when the Defendant rejected Mr Li's proposal to swap the two open car parking spaces). 10.In any event, things quickly turned real bad when the Defendant, on 9 May 2000, wrote a letter of "complaint" against the Plaintiff to the Secretary for Education and Manpower. The letter was copied to the Financial Secretary as well as the Secretary for Civil Service. The Plaintiff considered that the letter was defamatory of her, and the present action was commenced less than 1 month after the writing of the allegedly libellous letter on 2nd June 2000. 11.Before I go into details of the alleged libel, to complete this very general introduction of the background involved in the present case, I should mention that the Plaintiff and Madam Sham (as applicants and owners of House D) also took the Defendant (as respondent) to the Lands Tribunal in respect of various building works that were said to have been carried out by the Defendant in respect of House E in breach of the Deed of Mutual Covenant. 12.On the other hand, the owners incorporated (of which the Defendant has become the honorary secretary) has since commenced another claim against the Plaintiff and Madam Sham (as co-owners of House D) in the Lands Tribunal regarding arrears of management fees. 13.I now turn to the alleged libel. The allegedly libellous letter was written in the following terms:
14.According to the pleaded case of the Plaintiff, in their "natural and ordinary meaning", the defamatory words in the letter under complaint meant and were understood to mean:
15.Furthermore, according to paragraph 5 of the Amended Statement of Claim,
16.According to Mr Lok, counsel for the Plaintiff, paragraphs 4 and 5 contain and set out the libellous meanings that his client complains about in the present action. Mr Lok relies on each of the meanings pleaded in paragraph 4 as a libel in itself; he also says that the "cumulative effect" of these libellous imputations pleaded in paragraph 4 is pleaded in paragraph 5, which is also defamatory. 17.The Defendant, represented by Mr Edward Chan SC together with Mr Paul Leung, disputes the alleged libellous imputations relied on by the Plaintiff in paragraphs 4 and 5; the Defendant also relies on three specific defences, namely, justification, fair comment and qualified privilege, on all of which the Defendant bears the burden of proof. 18.In reply, and in so far as fair comment and/or qualified privilege may otherwise be made out, the Plaintiff relies on expressed malice (in its respective meanings relating to the two defences). 19.Although I have heard much factual evidence from both sides, including that given by many of their neighbours (which in itself is a rather remarkable fact, given that there are only 9 houses in this relatively small upper-class estate), which concerned to a no small extent various previous incidents relating to management of the estate, payment or non-payment of management fees, quarrels between the neighbours, alleged unauthorized building works that were (or are still) present in the estate, disputes and arguments relating to the formation of the owners incorporated, and so forth, I find it much more convenient and fruitful to focus on the allegedly libellous letter, and will only refer to all these matters and the related evidence if and when necessary; indeed this has been the approach of both counsel during final submission, which I find to be most helpful in focusing one's mind on the real issues in this case. 20.In fact, I find it convenient to examine the various alleged defamatory meanings pleaded in paragraphs 4 and 5 of the Amended Statement of Claim one by one, in order to determine first, whether the words in the letter bear the alleged defamatory meaning or imputation, and if the answer is in the affirmative, secondly, whether the defence of justification (where applicable) is made out. This has been the approach of both counsel. Moreover, I should record this: Although in his pleading, the Defendant pleads his own list of the meanings and imputations of the words contained in his letter, and seeks to justify those meanings and imputations, and although those meanings and imputations do not always tally with that pleaded in paragraphs 4 and 5 of the Amended Statement of Claim, Mr Lok, on behalf of his client, has confirmed with this court during final submission that apart from whether his client's refusal to pay management fees was "unlawful" and the amount of outstanding management fees at the material time, the Plaintiff does not take any pleading point as such. In other words, the Plaintiff does not object to the Defendant's seeking to justify the alleged imputations and meanings that have been pleaded in paragraphs 4 and 5 of the Amended Statement of Claim by way of defence to the Plaintiff's action, which was indeed the approach of Mr Chan in his final submission. (Mr Chan did not argue justification by reference to the meanings and imputations pleaded in his client's Re-amended Defence; he did it by reference to paragraphs 4 and 5 of the Amended Statement of Claim.) 21.One further general remark is this: It must be firmly remembered that paragraph 4(a) to (i) of the Amended Statement of Claim contains and sets out the alleged "natural and ordinary meaning" of the allegedly defamatory words in the letter pleaded in paragraph 3. In other words, what is contained in paragraph 4 itself is the substance, gist or the "sting" of the alleged libel. This is important because during final submission, Mr Lok from time to time fell into the error of seeking to derive further hidden (as it were) meanings from what has been expressly and specifically pleaded in paragraph 4. For instance, at one stage, he sought to argue in relation to paragraph 4(g) that what was meant to be alleged was that "as a civil servant", the Plaintiff did not abide by the law, when in fact paragraph 4(g), which is supposed to contain the natural and ordinary meaning, simply says, "the Plaintiff did not abide by the law". Of course, the intention of Mr Lok was apparent without the suggested qualification, the door for running a defence of justification was indeed left wide open. However, as Mr Lok accepted in final submission, that was not something permissible on his existing pleading; as he put it, he was "stuck with" his own pleading. Certainly, there was no application to amend pleading. 22.Moreover, Mr Lok accepted in final submission that paragraphs 4 and 5 contain all the libellous meanings and imputations that his client relies on in this action; he cannot rely on any other meaning or imputation that one may be able to derive from the letter in question, which has not been pleaded in paragraph 4 or 5. So for instance, although his final submission made reference to the alleged ulterior motive of the Plaintiff and her husband (i.e. the avoidance of payment of management fees) in doing the acts complained of in the earlier part of the letter (i.e. disturbing and threatening neighbours), that was never pleaded in paragraphs 4 and 5 of the Amended Statement of Claim, and accordingly Mr Lok could not rely on it. All this Mr Lok, very fairly, accepted in final submission. 23.So much for the general observations. Paragraph 4(a): "the Plaintiff and her husband repeatedly disturbed the Defendant's quiet family life" 24.I agree with Mr Lok that this is a natural and ordinary meaning or imputation of the alleged defamatory words in the letter. Read in its context, the same is defamatory. 25.Turning to justification, it is accepted by all sides that the most important incident in the present context is the so-called LPG cylinder episode. 26.On the evidence, it is clear that initially Mr Li on behalf of House D agreed to let the Defendant's renovation contractor use House D's open car parking space adjacent to House E's garden for placing renovation material and waste. It is also reasonably clear that by February 2000, that permission had been withdrawn. The parties disagree on whether the Defendant or his contractor continued to use House D's open car parking space for that purpose thereafter. It should be remembered that as mentioned above, in fact near that part of House E's garden, there are two adjacent open car parking spaces, belonging to House D and House E respectively. One night in April, shortly after Dr Yip and his wife moved into House E, Mr Li took two (allegedly) empty LPG cylinders together with a metal chain from House D to the open car parking space of House D in question. He was accompanied by his mother (Madam Sham). According to Mr Li, he was unhappy with the continued use of House D's open car parking space by the Defendant and his contractor after the withdrawal of consent. He wanted to mark the common boundary of House D's open car parking space by means of a metal chain. He planned to do so by placing the two empty LPG cylinders near the common boundary of the two parking spaces and tying the two ends of the metal chain to the two LPG cylinders. According to Mr Li, he intended no harm to the Defendant and his family. He simply wanted to cordon off, as it were, House D's open car parking space. 27.The clinking sound created by dragging the two metal LPG cylinders from House D to the open car parking space and the ensuing bitter arguments (see below) at near mid-night in such a quiet neighbourhood, alerted not only the caretaker, but also some of their neighbours. Whilst Mr Li was busy with tying the metal chain to the two cylinders which were placed within the boundary of House D's open car parking space, the Defendant and his wife came out from their house alarmed, and no sooner had they seen what Mr Li had placed next to their car parking space and the vehicle they parked there than the Defendant and his wife protested vigorously about the obvious danger of placing two LPG cylinders next to their vehicle and car parking space, just in front of House E's garden. This led to heated arguments between the parties. 28.The crucial dispute here is whether the Plaintiff took part in the argument. The Plaintiff denies that she ever took part in it. Her evidence is that she was unaware of her husband's intention and plan beforehand. She was, like some of her neighbours and the caretaker, alarmed by the noises, and went out together with a relative to see what was happening. She and the relative stood at a distance, and did not join in the argument. She was there for about 5 minutes and returned home together with her relative (who gave evidence at trial and confirmed the Plaintiff's evidence). 29.The caretaker who gave evidence said he was also alarmed by the noises, and went to see what happened. After he found out that it had nothing to do with any possible burglary, and there was no immediate danger of any violence, he left. He was there for about 5 minutes and did not witness the incident from beginning to end. The neighbour who gave evidence on the incident managed to assist the court no better than the caretaker in this regard, i.e. the participation, if any, of the Plaintiff in the argument. 30.On the other hand, both the Defendant and his wife insisted in evidence that although initially the Plaintiff was not there, at a later stage she joined her husband in arguing with the Defendant and his wife. She supported her husband's action in placing the two LPG cylinders at House D's car parking space, she also insisted that they had the right or freedom to do whatever they wanted to do within their own car parking space, despite the protests against the possible danger to House D posed by the presence of the LPG cylinders. According to the Defendant and his wife, the whole incident lasted about 20 minutes to half an hour. They were most scared by the incident and could not sleep the whole night. They did not know who their new neighbours were, and dared not call the police, though they felt threatened about their safety by Mr Li's and the Plaintiff's action. 31.According to Mr Li, some time afterwards, he had a further reflection on the matter and felt it unwise to place the LPG cylinders at the car parking space, and eventually (in the same night) he retrieved the cylinders to House D. 32.Having seen and heard the witnesses, and considered carefully the contents of their evidence, the inherent probabilities of the matter, and the relevant circumstances, I prefer the evidence of the Defendant and his wife. I find as a fact that the Plaintiff, despite her denial, did take part in the latter part of the argument between the two couples, and she played a supportive role in the argument. In my judgment, from any angle, this was a serious argument between the two neighbours, and I find it improbable that the Plaintiff would have left her husband and mother-in-law at the scene to argue with the Defendant and his wife. The evidence of the caretaker and the relative are not inconsistent with this finding because they only spent several minutes at the scene and left before the argument ended. The allegedly libellous letter written less than 1 month after the incident specifically referred to the Plaintiff as being involved in the LPG cylinder incident, although I have taken careful note of the fact that not everything alleged in the letter was factually correct and I make no such assumption at all here. 33.From my observation of the Plaintiff, I find her to be a highly supportive and submissive wife. She is good to her husband and mother-in-law, whereas her husband (Mr Li), with respect, is of a very rather overbearing character. I have taken all this into account and as I said, I find it improbable that she would have left her husband and mother-in-law to argue alone with the Defendant and his wife; I find it more probable that she re-joined them and supported her husband in the argument, after taking her relative back to House D for rest (after all this was a private personal family matter which she might not like to involve her relative in). 34.Having come to such a factual finding, I have no doubt in concluding that this is an incident, and indeed a serious one, of disturbing the Defendant's quiet family life. I have expert evidence before me about the danger of placing LPG cylinders (albeit "empty" ones) at or near car parking spaces and vehicles. I have no difficulty in accepting the evidence, which to me is really commonsense (except that part about the danger of supposedly empty LPG cylinders). I have also no doubt that the placing of LPG cylinders in a car parking space is in contravention of the provisions in the Deed of Mutual Covenant. 35.Apart from this incident, the Defendant also relies on several other incidents, namely water leakage near the party wall separating the two houses, the spraying of water in the car washing process at the front of House D into House E's boundary because of the way House D's car was parked, and the presence of a roll of barbed wire near the (unfenced) common boundary of the two houses. 36.The Plaintiff argues that the water leakage was caused by the raising of the party wall by the Defendant which led to subsistence of land and damage to the underlying water pipe within House D. That may well have been so. But I agree with Mr Chan that that was no excuse for House D's owners not repairing the leaking pipe which caused flooding within House E. Indeed, this amounted to an offence under section 28 of the Waterworks Ordinance (Cap. 102). I do not think one wrong can justify another. The water leakage itself, in my judgment, constituted a disturbance of the Defendant's quiet family life. 37.As regards the spraying of water, I accept the Defendant's side's evidence. The evidence is that as some sandbags were hung inside the front garage of House D for Mr Li's practice of kung fu or boxing, the vehicle parked at the garage of House D had its front sticking out of the garage entrance. In those circumstances, during car washing, if one was not careful, given the proximity of the two houses, water would easily be sprayed into House E. As I said, I accept the Defendant's side's evidence; I find that this was also an incident of disturbance of the Defendant's quiet family life. 38.Finally, as regards the barbed wire, in more senses than one, this was a repetition of the placing of dangerous articles near the boundary with House D. The barbed wire incident happened a short time after the LPG cylinder incident. The roll of barbed wire was placed at foot level very near to the (unfenced) common boundary of the two adjacent private lanes of the two houses. I totally reject Mr Li's evidence that the roll of barbed wire was placed there for an hour or so for an innocent reason. I accept the Defendant's and his wife's evidence that it had been there for more than a day, after they first heard a complaint from their maid. It was placed there sufficiently long for the Defendant's wife to be able to take a photo of it although she had to go to work everyday. Mr Li said he bought the barbed wire for installation at a height to improve the security at House D. Interestingly, according to his own evidence, he subsequently found the idea impracticable and dropped it. I reject his evidence. 39.Again this was an incident of disturbance of the Defendant's quiet family life. 40.Now of course the complaint in paragraph 4(a) was directed not only at Mr Li but also the Plaintiff herself. I have already made a finding that in relation to the LPG cylinder incident, the Plaintiff was substantively involved in it. In relation to the three other incidents, on a balance of probabilities, I find that the Plaintiff was aware of them, but she simply turned a blind eye to them, or more correctly in relation to the barbed wire incident, she simply allowed her husband to do what he liked. As a co-owner of House D, in those circumstances, I find that she should also be held responsible for those incidents. 41.As regards her knowledge of what her husband (who seems to have more spare time to spend in the estate than she) did in the estate (including House D itself), in my judgment, given the rather wordy, inquisitive and uncompromising character of Mr Li, I find it highly probable (and find as a fact) that Mr Li was in the habit of telling his wife matters concerning the estate and the neighbours, on which he had an opinion (and I am sure there must have been many such matters). 42.I reject Mr Lok's argument that the word "repeatedly" means more than 4 incidents. In my judgment, the 4 incidents are sufficient to warrant the use of the word "repeatedly". 43.In conclusion, I find that the defence of justification has been made out in relation to paragraph 4(a). Paragraph 4(b): "one night in mid-April 2000, the Plaintiff brought 2 LP cylinders and a chain and placed it outside the Defendant's house and next to the Defendant's car and thereby threatened the life of the Defendant's family" 44.I agree that this is a natural and ordinary meaning of the words complained of. It is defamatory. 45.Mr Lok accepted in final submission that the complaint here is not so much about the carrying of the 2 LPG cylinders to the car parking space, but rather the placing of the cylinders at that place, particularly despite the protests of the Defendant and his wife about the possible danger posed by the presence of the cylinders. 46.In my judgment, given my above finding, the carrying and the placing of the 2 cylinders at the open car parking space of which the Plaintiff was a co-owner by Mr Li must be regarded as having been ratified, adopted or endorsed by the Plaintiff when she joined in the argument at the later stage. According to the Defendant's and his wife's evidence in this regard which I accept, the Plaintiff supported Mr Li in the quarrels. 47.In my judgment, the first part of paragraph 4(b) has been justified. As regards the threatening of the life of the Defendant's family "thereby", I have no difficulty in accepting the Defendant's and his wife's evidence that at the time they felt threatened about their own personal safety. Objectively speaking, that feeling was also reasonable. One must not only consider the position of the Defendant and his wife whilst they stayed inside the house, one should also consider the situation when they were to use their open car parking space next to the 2 cylinders for normal vehicular purposes. 48.I have not overlooked that the latter part of paragraph 4(b) may be viewed as a comment rather than a fact. But of course, if the comment is "correct", which in my view it is, the defence of justification is made out: Gatley on Libel and Slander (9th ed) paras 11.5 and 12.3. 49.In conclusion, the defence of justification is successful here. Paragraph 4(c): "the Plaintiff had threatened neighbours, especially newcomers in the past" 50.I accept that this is an imputation that can be derived from the letter, and is defamatory in meaning. 51.The Defendant relies on 3 incidents, i.e. the slamming of the door in Mrs Chau (of House J) which so scared the poor lady who slipped at the door entrance of House D and hurt her waist; the threat made by Mr Li to those owners present at an owner's meeting about the formation of the owners incorporated in March 2000 that if despite his objections, the owners incorporated was formed, he would use the outstanding management fees that House D owed in litigation with his neighbours; and the hammering of a metal gate by Mr Li after midnight outside House J which scared Ms Chan of House H next door. 52.On the first incident, the door was slammed by Mr Li. According to Mrs Chau's evidence which I prefer and accept, the Plaintiff was present inside the house doing some ironing work. According to Mrs Chau, the Plaintiff was not friendly to her when she tried to pay House D a visit (about calling a meeting for the formation of the owners incorporated). Mr Li scolded Mrs Chau for having demolished a basketball post installed near House J. The Plaintiff supported her husband and the look on her face was hostile. Mr Li then slammed the door, and it so scared Mrs Chau that she slipped and fell, and injured herself. 53.Having considered the evidence, whilst I have no hesitation in accepting Mrs Chau's evidence, I do not think that in all fairness, one can categorize the incident as one in which the Plaintiff "threatened" her neighbour (although Mrs Chau was indeed a relatively new neighbour at the time). The door was slammed not by the Plaintiff but her husband as an occupier of House D. It could not have been a premeditated act on the part of Mr Li (and still less that of the Plaintiff), as Mrs Chau's visit was an impromptu one. I do not think what the Plaintiff had said or the hostile look on her face could be said to be threatening per se. I reject this incident as justification for the libel. 54.As regards the threat to sue the neighbours or the owners incorporated made by Mr Li in the meeting in March, I accept that it was a threat. I also accept that Mr Li was present at the meeting as a representative of House D's owners. I do not accept the disingenuous argument run by the Plaintiff in relation to the presence of Mr Li in this type of owners' meetings as merely a representative of his mother who is also a co-owner of House D. 55.As regards the last incident - hammering of the gate, on the evidence before me, I am not persuaded that the Plaintiff had played any part in it. No doubt, Mr Li's most inappropriate act (done after midnight) caused momentary alarm to Ms Chan and her husband, and in that sense it may perhaps be said that he threatened Ms Chan (who however was not a new neighbour), but the same cannot be attributed to the Plaintiff. 56.Read in the context, although paragraph 4(c) does not say "other neighbours" as in the letter but simply "neighbours", it must, when read in context, exclude House E itself. On that basis, only one incident can be made out. I do not think the Defendant has managed to justify the substance or the gist of the libel. In conclusion, the defence of justification fails in relation to paragraph 4(c). Paragraph 4(d): "the Plaintiff has unlawfully refused to pay management fees" 57.I agree that this is a valid imputation. Read in its context, it is libellous. 58.In relation to the defence of justification, as I said, I have no doubt that management fees were owing at the time when the letter was written. Insofar as the amount is relevant (here Mr Lok insists on his pleading objection: see paragraph 3(d) of the Re-amended Defence), I am prepared to accept that $89,000.00 is sufficiently close to $100,000.00 in the context of the present case. However, the real difficulty for the Defendant here lies in the word "unlawfully". In relation to this, Mr Lok again holds the Defendant to his pleading. In his pleading, the Defendant has only placed reliance on paragraph 4(f) of the Deed of Mutual Covenant to justify the allegation of unlawfulness in the refusal to pay management fees. 59.Having read clause 4 as a whole in the context of the Deed of Mutual Covenant, I agree with Mr Lok that the obligation to pay management fees under clause 4(f) is premised on there being a manager to collect the management fees, who has been appointed to act as the manager pursuant to the provisions in the Deed of Mutual Covenant. The problem with the estate after the resignation of Chiap Hua and prior to the formation of the owners incorporated was precisely that there was no properly appointed manager to run the estate's management. So strictly speaking, Mr Lok is right in saying that there was no proper manager or person to collect management fees at the material time. Therefore, clause 4(f) of the Deed of Mutual Covenant cannot supply the necessary element of unlawfulness in the defence of justification here. 60.This is, of course, not to say that House D need not pay management fees. I totally agree with Mr Chan in his final submission that given the circumstances of the present case, one could easily work out the legal basis for an obligation on House D to pay management fees, for instance, an implied contract, restitution and so forth. Indeed, to be fair to Mr Lok, he does not seriously dispute with all this. His argument is that none of all this has been pleaded and relied on in relation to the defence of justification. 61.I agree with Mr Lok. On existing pleading, this is not open to the Defendant. No application to amend was ever made. In those circumstances, I must conclude that the defence of justification fails in relation to the allegation of unlawfulness, which constitutes the substance or the gist of the complaint here, and for that reason, the defence of justification also fails in respect of paragraph 4(d). Paragraph 4(e): "the Plaintiff tried to stop others from complaining about her non-payment of the management fees" 62.I agree that this is a valid imputation. 63.However, I agree with Mr Chan that this sub-paragraph per se, even read in its context, is not defamatory. It should be remembered that no innuendo is relied on here. It is not alleged that the means adopted (which have not been specified) by the Plaintiff were unlawful or otherwise reprehensible. Nor is it alleged that the attempt to stop others from complaining was actuated by any ill or unlawful motive or consideration. 64.In the present context, in any event, this allegation does not add much to the next allegation contained in paragraph 4(f). Paragraph 4(f): "the Plaintiff tried very hard to prevent the owners of the estate to form an owners' incorporation with a view to avoiding payment of management fees" 65.I agree that this is a valid imputation. I also agree that read in its context, it is defamatory. 66.So far as justification is concerned, in relation to the first part of the allegation (the prevention of the formation of the owners incorporated), I have no doubt on the evidence that Mr Li, as supported by the Plaintiff, tried very hard to prevent the formation of the owners incorporated. Although the Plaintiff was only present in one of the meetings (the one held on 2 May 2000), I have no doubt that on the facts the participation of her husband in the earlier meetings and the attitude he took regarding the formation of the owners incorporated can be attributed to her. I find that Mr Li was present in those meetings and expressed those views only in his capacity as the representative of the owners of House D. 67.Moreover, the Plaintiff was personally present in the meeting on 2nd May. Whilst eventually she and her husband voted in favour of the formation of the owners incorporated, it cannot be seriously denied on the evidence that prior to the eventual voting, Mr Li opposed vigorously the formation of the owners incorporated. Although the Plaintiff was relatively quiet in the meeting, I have no difficulty in accepting the assessment of the witnesses that she fully supported the stance of her husband in opposing the formation of the owners incorporated. At the very least, her silence (as per her evidence at trial), in the light of the vigorous opposition raised by her husband, and given her co-ownership in House D, may be reasonably regarded as her acquiescence in the attitude of Mr Li. 68.Regarding the alleged ulterior motive in opposing the formation of the owners incorporated (i.e. avoidance of payment of management fees), that I am not so sure about. In this regard, Mr Chan argues that he relies on the defence of fair comment, because he says this part of paragraph 4(f) is a comment rather than a fact. In other words, he does not seek to justify this part of paragraph 4(f). I will deal with fair comment in the latter part of this judgment. 69.Nonetheless, for the sake of completeness, I should say that on the question of justification regarding this part of paragraph 4(f), I am quite unable to conclude on the evidence before me that this is a correct, as opposed to a fair, comment. In any event, as I said, Mr Chan does not rely on justification in relation to this part of paragraph 4(f), and I need not make any definite finding on it. 70.Before I turn to the rest of paragraph 4, I should note that paragraph 4(f) does not qualify the attempts to prevent the formation of the owners incorporated by reference to the unreasonableness of the attempts, although that may be a justifiable imputation from the letter. In those circumstances, the reasonableness or otherwise of Mr Li's objection is not in issue, and I need not deal with, for example, the merits of Mr Li's grounds of objection as set out in, for instance, p. 30 of Bundle C (a letter he wrote to the relevant authorities opposing the intended formation of the owners incorporated). The net effect of the Plaintiff's pleading is that it makes life much easier for the running of the defence of justification in relation to the first part of paragraph 4(f), which as I have concluded is successful. Mr Lok accepted in final submission that he was bound by his own pleading. Paragraph 4(g): "the Plaintiff did not abide by the law" 71.I accept that this is a valid imputation and is defamatory. 72.Again, paragraph 4(g) suffers from being too loose. It simply says that the Plaintiff did not abide by the law - without any qualification, notwithstanding that in my view, the letter could permit the placing of restrictive qualifications regarding this particular imputation, thereby making the defence of justification more difficult to run. 73.As it is, in my judgment, it can be easily justified, and I need only refer to Mr Chan's argument based on the contravention of section 28 of the Waterworks Ordinance relating to water wasting by reason of the non-repair of the leaking water pipe to conclude that the defence of justification is successful here. Of course, Mr Chan also refers to the contravention of the Deed of Mutual Covenant and the provisions in the Buildings Ordinance (Cap. 123) regarding the alleged presence of illegal structures in House D. In view of my conclusion, I need not lengthen this judgment by making reference to these further arguments. Paragraph 4(h): "the Plaintiff partially assigned the property she purchased by using taxpayers' money" 74.I accept that this is a valid imputation. 75.But I disagree that the imputation is defamatory at all. I reject Mr Lok's argument that when read with the rest of the letter, there is an (unpleaded) suggestion in paragraph 4(h) that the Plaintiff has improperly used taxpayers' money. 76.In my judgment, this is a misreading of the letter. The sentence in question is simply saying, in a rather clumsy way, that the Plaintiff purchased House D with the assistance of housing benefits that she enjoyed as a civil servant, and in return the property was mortgaged to the Financial Secretary Incorporation as security. In any event, the imputation is fully justified. There is nothing in paragraph 4(h). Paragraph 4(i): "the Plaintiff abused her rights, the civil servants' regulations and the Deed of Mutual Covenant" 77.Again the Plaintiff is a victim of her own pleading. I accept that "the Plaintiff abused her rights" is a valid imputation and is also defamatory. But I reject as a viable imputation the rest of paragraph 4(i), namely "the Plaintiff abused ... the civil servants' regulations and the Deed of Mutual Covenant". What was alleged in the letter was that the Plaintiff abused her right, "and this has definitely violated the civil servants' regulations, and obviously the Deed of Mutual Covenant". In relation to the civil servants' regulations and the Deed of Mutual Covenant, the complaint in the letter was the violation of the provisions in the civil servants' regulations and the Deed of Mutual Covenant. There was no allegation of any "abuse". 78.I do not accept that in its natural and ordinary meaning, the relevant sentence in the letter meant or was understood to mean an allegation of abuse. 79.Mr Lok, if I have not understood him incorrectly, eventually accepted during final submission that abusing is different from violating, and in any event, regardless of Mr Lok's position, that is my judgment. There was no application to amend. Again, the Plaintiff is "stuck with" her own pleading. 80.In relation to the Plaintiff abusing her rights, Mr Chan on behalf of the Defendant relies both on the defence of justification and the defence of fair comment. 81.In my judgment, Mr Chan is correct with his submission that the Plaintiff as a co-owner of House D has abused her rights in that whilst on the one hand, she and her family enjoyed fully the management services provided in the estate, on the other she as a co-owner refused to pay management fees on the highly technical argument that there was no lawful manager to collect them. On the evidence, as I said, I do not accept that the Plaintiff can divorce herself from the position of Mr Li. The situation is particularly objectionable when Mr Li himself was the "chairman" of the estate, albeit that it was only an informal title. 82.In my judgment, the defence of justification has been made out. Paragraph 5: "the Plaintiff is uncivilized" 83.I accept that this is a valid (and defamatory) imputation, particularly when one bears in mind the LPG cylinder incident. By insisting to place the LPG cylinders in the open car parking space, notwithstanding that the obvious danger posed by the cylinders has been expressly and vigorously pointed out by the Defendant and his wife, at the very least, the Plaintiff and Mr Li may be said to have resorted to an uncivilized means to further their argument regarding the open car parking spaces. To that extent, one may say that the Plaintiff was "uncivilized". 84.But there also lies the answer to the Plaintiff's complaint. Given my finding above, in the present context, the imputation was correct. In other words, the defence of justification can be made out, although to be fair, I must point out that Mr Chan in his final submission only argued that this is not a valid imputation, and therefore the question of justification does not arise. 85.Technically speaking, the defence of justification, which has not been pleaded in relation to the present imputation, does not assist the Defendant. But in my view, this is in any event an appropriate instance for applying section 26 of the Defamation Ordinance (Cap. 21), which has been pleaded and which Mr Chan has placed reliance on. Put another way, given my finding that in relation to paragraph 4(b) (regarding the LPG cylinder incident) the defence of justification has been made out, section 26 is applicable. Section 26 reads as follows:
86.In my judgment, the LPG cylinder incident gave rise to the allegation in paragraph 4(b) as well as the allegation that the Plaintiff is an uncivilized person in paragraph 5. On the facts of the present case, in my judgment, section 26 is applicable. Paragraph 5: "the Plaintiff is not a law-abiding citizen" 87.This is no different in substance from paragraph 4(g) which has already been dealt with above. 88.There is nothing in it. Paragraph 5: "the Plaintiff is generally unfit to hold a civil service position in the HKSAR Government" 89.In my judgment, this is too wide an imputation, although I agree that based on the natural and ordinary meanings pleaded in paragraph 4, the Plaintiff's character, temperament, ethics and personal integrity have been put in issue. I also bear in mind the pleaded context, namely a complaint against the Plaintiff as a civil servant. However, in my judgment, it is a quantum leap to say that the imputation in the letter is that she is "generally unfit" to hold "a" civil service position in the government. Other milder imputations that one can think of include the imputations that she is of doubtful fitness for her job in question, that she is liable to be disciplined by the civil service, and so forth. 90.In conclusion, based on the evidence before me, I reject the alleged imputation (which is no doubt defamatory). Summary 91.In summary, in my judgment, the Plaintiff's case of defamation as pleaded in paragraphs 4 and 5 of the Amended Statement of Claim fails, save and except paragraph 4(c) (threatening neighbours), (d) ("unlawfully" refusing to pay management fees), and (f) ("with a view to avoiding payment of management fees"), subject to the Defendant's further defences of fair comment and qualified privilege. Qualified privilege 92.For reasons that will become immediately apparent, I will deal with the defence of qualified privilege first. 93.The essence of the defence has been well summarized by the leading authority on the subject, Gatley, at paras. 14.1, 14.2, 14.3, 14.5 and 14.55:
94.The crux of the dispute between the parties is, predictably, whether the writing of the letter was a qualified occasion. The emphasis here is on the occasion, although the content of the letter would also be relevant regarding irrelevant publication (Gatley at para. 14.59 et seq.) as well as malice, which defeats the qualified privilege (see Gatley, Chap. 16, and the First Supplement to the 9th edition of Gatley, Chap. 16). All this turns on the duty and interest of the author and the recipient in question. 95.In the present case, there are three named recipients (the privilege, if applicable, would also carry with it an incidental privilege regarding publication to secretaries and so forth - according to the Plaintiff's estimate, about ten odd people should have seen the letter, although according to her pleading the letter is said to have been published to three recipients only). 96.In my judgment, for all practical purposes under the present heading, the Secretary for Education and Manpower and the Secretary for Civil Service may be treated on the same footing. 97.The letter was no doubt a complaint letter against the Plaintiff as a civil servant. The rubric of the letter said so in so many words. Having heard the parties' arguments carefully, in my judgment, the crux of the dispute lies in whether this letter could be properly regarded as a complaint letter against a civil servant based on relevant grounds of complaint. I do not think counsel suggested that in the case of a complaint letter against a civil servant, the complaint must be well-founded before the occasion is covered by qualified privilege. Otherwise, the qualified privilege would be rather illusory, and the underlying public policy in protecting genuine complaints would be defeated. However, it would seem to me, on authorities and on reasoning, that setting the test as low as a genuine bona fide complaint subjectively believed by the complainant to be justified, is unwarranted by the underlying public policy and inapt as regards the protection of a person's reputation and good name. 98.In terms of the facts in the present case, it cannot be seriously denied that even on the Plaintiff's own case, the letter was a letter of complaint, and the "cumulative effect" of the various imputations was that the Plaintiff "is uncivilized, is not a law abiding citizen and is generally unfit to hold a civil service position in the HKSAR Government" (paragraph 5 of the Amended Statement of Claim). I have already said above that in relation to the last bit, the allegation of general unfitness is too strong. That notwithstanding, it is indeed an admission by the Plaintiff on her own pleading that the letter is about her fitness to remain in office. In any event, as I said, in my judgment, the more correct imputation, although milder than the one pleaded in paragraph 5 (generally unfitness), still has much to do with her office in the civil service. 99.This being the case, how can it be argued that the two Secretaries in question did not have an interest to receive the letter, and the Defendant as a citizen did not have a social or moral duty to make the complaint? Mr Lok, however, argues that this per se cannot be a conclusive answer. One must look at the grounds relied on in the complaint letter. If those grounds were entirely irrelevant to the ultimate charge made against the Plaintiff, then not only would it indicate malice on the part of the Defendant, it would also go to the applicability of the privilege in the first place. 100.I agree that Mr Lok's submission has some support of the authorities. I do not pretend that I can better state or summarize the law than Gatley at paras. 14.59 to 14.60, which read as follows:
See also the two leading cases of Adam v Ward [1917] AC 309 and Horrocks v Lowe [1975] AC 135, both discussed in some detail in the above extract. 101.Having carefully considered the grounds of complaint relied on in the letter, in my judgment, I would not describe them as wholly extraneous or irrelevant to the ultimate complaint against the Plaintiff. 102.I also take into account the evidence that the government may take disciplinary action against a civil servant if he or she misconducts "in any manner", which is not qualified or restricted to misconduct in the performance of the civil servant's duty (Bundle C p. 102). I also bear in mind the reply by the government in relation to the present letter of complaint, which did not say that the complaint was not a proper complaint that could be entertained, but only that after investigation, the government did not see fit to take any action as it concerned the private affairs of the Plaintiff. I further bear in mind the job nature and work responsibilities of the Plaintiff. I fully take into account all this in my deliberation. 103.In my judgment, the letter, as per the Plaintiff's own pleaded case and as Mr Lok has submitted with much enthusiasm, calls into question the Plaintiff's character, temperament, ethics and personal integrity, although the evidence relied on to justify it related to her private affairs. Here, one must distinguish the relevant issues from the supporting evidence. The relevant issues here were the character, temperament, ethics and personal integrity of the Plaintiff; they were in turn relevant to whether as Mr Lok has put it, she was fit for her office or she should be disciplined, and so on. The evidence in relation to these issues may, in my judgment, come from both the Plaintiff's performance of duties as a civil servant and her handling of her private affairs. 104.All in all, I consider that the writing of the letter to the Secretary for Education and Manpower and the Secretary for Civil Service was an occasion of qualified privilege, subject to the express malice point. In so concluding, I have also borne in mind that in relation to qualified privilege, a certain degree of tolerance should be meted out to excessive and exaggerated material published on the occasion: see Gatley at para. 14.60. In my judgment, viewed as a whole, the entire letter was covered by the privilege. 105.As regards the publication to the Financial Secretary, in my judgment, given the Financial Secretary Incorporation's monetary interest in the property, there was a sufficient interest for the Financial Secretary to be made aware of the complaints, and there was a social or moral duty on the part of the Defendant as a private citizen to report the matter, regarding the non-payment of management fees. 106.I accept that on general principles, the Financial Secretary Incorporation's second charge over the property should not be affected by any charge that may result from the enforcement of payment of outstanding management fees. However, taking a general view of the matter, I am still of the view that the Financial Secretary has a sufficient monetary interest in the property to warrant receipt of information regarding non-payment of management fees. 107.What about the compliant regarding the relationship with neighbours and so forth? In my judgment, the answer lies in this: the letter, rightly or wrongly, suggested that the threatening of neighbours and so forth had an ulterior motive behind them, i.e. the stopping of the neighbours from complaining about the non-payment of management fees. Likewise, the opposition to the formation of the owners incorporated was motivated by the same ulterior motive. I have already remarked above (paragraph 22) that in relation to the first allegation, somehow this has not been made an imputation in either paragraph 4 or 5 of the Amended Statement of Claim and therefore I need not deal with it. However, in the present context, of course the focus of attention is on the letter itself, and I am bound to take into account the whole letter in deciding whether there has been irrelevant (as opposed to merely excessive) publication of matters not concerning management fees to the Financial Secretary. 108.As analysed by me above, everything in the letter boiled down substantively to the question of management fees. As such, I would not categorise the complaints regarding threatening neighbours and opposition to the formation of the owners incorporated as being extraneous to the question of management fees. I conclude, therefore, that there has not been an "entirely irrelevant and extraneous" publication to the Financial Secretary. 109.I also find that the defence of qualified privilege applies here, subject to the question of express malice. Express malice and qualified privilege 110.Put simply, if the Plaintiff can establish that the Defendant did not write the complaint letter to the three Secretaries, believing the content of complaint to be true, or if he did so with some other extraneous or ulterior motive in mind, the privilege would not attach. In Horrocks v. Lowe at pages 150A/B to 151B, Lord Diplock explained the law thus:
111.This is a question of fact. I have considered all the evidence before me, including the oral evidence given by all witnesses - particularly the evidence of the Defendant and his wife (after all one is concerned with what went through the Defendant's mind), the objective as well as circumstantial evidence (including the disputes and quarrels between the two neighbours both before and after the writing of the letter and the so-called video taping incidents towards the end of 2000/beginning of 2001 - which has limited probative value only despite the time devoted to it by the parties given that so much has happened since the letter of 9 May 2000), the inherent probabilities, the education, character, intelligence and expected commonsense of the Defendant, and generally the whole of the circumstances of the case. 112.I find as a fact that firstly, the Defendant genuinely and honestly believed in the truthfulness of the substantive contents of his letter; and secondly, his main purpose in writing the letter was to make a complaint against the Plaintiff as civil servant to the relevant Secretaries. As has been explained in the relevant authorities, the fact that the Plaintiff may not have been the most likable person on earth in the eyes of the Defendant is in and of itself not determinative, and the fact that the Defendant might rejoice in the government taking some action against the Plaintiff as a result of his letter of complaint is again in and of itself not conclusive on the issue in question, although they must be relevant circumstances or evidence to be taken into account in deciding the question of malice. 113.As I said, on the totality of the evidence before me, I have arrived at a finding against the plea of express malice, on which the Plaintiff bears the burden of proof. 114.In conclusion, I find that the defence of qualified privilege has been made out. It is a complete defence, and therefore the Plaintiff's action on defamation must fail. Fair comment 115.Given my above conclusion, it is unnecessary for me to go into this defence, save for me to say that I agree with Mr Lok that in the present case, there was insufficient public interest involved, and therefore for this reason, the Defendant's reliance on the defence of fair comment must fail. I need not therefore go into the other arguments raised by both sides relating to this defence. But given my conclusion regarding qualified privilege, my view in relation to fair comment does not really matter. Quantum 116.Again, given my above conclusion, I need not deal with this issue. 117.Suffice to say that having considered the circumstances of the case, bearing in my mind my conclusion on what libellous imputations have been made out (assuming that I was wrong in relation to the qualified privilege defence), and having considered counsel's submissions and the authorities that they have cited, I am of the view that, in case I was wrong with the defence of qualified privilege, an appropriate award in the present case is in the region of $20,000.00. (I should record that Mr Lok in his final submission only asked for damages in the region of $30,000.00 to $50,000.00, together with interest and costs on the District Court scale.) 118.Reputation is in some sense priceless, and I do not wish to make any comment on the wisdom or necessity of bringing the present action of libel, by simply judging it from the amount of damages sought, notwithstanding the obvious costs to the society in terms of the time, money and resources of the judiciary that have been expended in holding this trial of 11 days for the purpose of resolving the dispute between the parties. Nor need I mention the costs similarly in terms of the time, resources, energy and so forth of all those who are involved in this unfortunate piece of litigation, who are so obviously well-educated and who, one would have imagined, must have preferred to devote their great education, training, learning and abilities to the pursuit of more fruitful ends that may benefit the society that we all live in. Order 119.The action is dismissed with costs to the Defendant, such costs to be taxed if not agreed (on a costs order nisi basis). With due respect to Mr Chan and his junior, I have specifically considered but decided against the grant of a certificate for two counsel. However, if either party is not happy with the costs order nisi, he or she may apply to have it varied within 14 days after this judgment is handed down, failing which the same shall become absolute. 120.My above order should not be interpreted as my being against the retaining of a silk in this case; all that I am saying is that I am not prepared to allow a claim for the fees of two counsel in this case, now that the two counsel rule has been abolished. Of course, the quantum of counsel's fees is a matter for taxation. 121.Lastly, I would like to thank counsel on both sides for their helpful assistance.
Representation: Mr Alex Lok, instructed by Messrs F Zimmern & Co., for the Plaintiff Mr Edward Chan, SC and Mr Paul Leung, instructed by Messrs Wong, Hui & Co., for the Defendant |
Cases cited in this judgment
Further hearings and rulings under HCA 5595/2000