Chan Hok Man and Others v. Cheng Chi and Others

CACV000002/1984

BETWEEN

Coram: Roberts, C.J., Huggins, V.P. & Barker, J.A.

Date of Judgment: January 27th & 31st, 1984.

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JUDGMENT

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Roberts, C.J.:

History of the action

1. The plaintiffs, who are owners of flats in Balwin Court, 154-164 Argyle Street, Kowloon, by a specially endorsed writ, issued on 3rd December, 1983, claimed damages for libel, a mandatory injunction ordering the removal of alleged defamatory matter from the walls of Balwin Court and an injunction to restrain its further publication.

2. By an inter partes summons, dated 12th December, 1983, the plaintiffs sought, by way of interim relief, the mandatory injunction, to which I have just referred, and an interim injunction restraining the defendants from republication of the libel pending trial of the action.

3. On 23rd December this summons was heard by Power, J. However, since both parties wished to file further affidavits, the judge decided that he would adjourn the summons for further argument on the return day, which was fixed for 1st February, that is to say, tomorrow.

4. Pending the hearing on 1st February, Power, J. granted the mandatory injunction without limitation, and the interim injunction effective until the return day. He made no order as to costs.

5. The defendants appeal against these orders.

The libels

6. The Statement of Claim alleges that, about 16th November, 1983, a copy of a notice which had been issued by the first plaintiff, who was then a member of the Committee of Management of the block, on 25th March, 1981, calling for contributions from flat owners, had been posted in all five blocks of the Balwin Court complex, with an endorsement on that notice alleging, in effect, that the three plaintiffs were "big crooks" who had cheated the public and had "eaten up" money intended to be used to provide in the Balwin Court complex a closed television circuit for security purposes.

7. About 21st November, a circular was issued by, or on behalf of, the first defendant, referring to the notices which had been posted, in terms which are said to have been defamatory of the plaintiffs.

8. On 21st November, the plaintiffs' solicitors wrote to each of the defendants, who form the management committee of Balwin Court, asking them to remove the offending notices. They also sought an undertaking that similar notices should not be posted in any public areas of Balwin Court and an apology for the imputations contained in the notices.

9. On 30th November, the solicitors for the defendants replied, denying that any members of the committee had caused or permitted any libellous notices to be published, as alleged by the plaintiff's solicitors.

10. By the defence in the action, which was dated 22nd December, 1983, the defendants denied that they had had anything to do with the posting of the notices. They further asserted that the plaintiffs should themselves remove the notices from the walls. Although there appears to be a formal denial that the contents of the notices were defamatory, it is not in our view, really arguable that they were not and counsel for the defendants very rightly conceded that some of the words used clearly are defamatory.

Conduct of parties       

11. Before considering the question of the propriety of the Judge's order, I feel obliged to observe that, in my opinion, both parties in this action have behaved in a stubborn and pigheaded fashion.

12. The management committee, which controls the common parts of the building, both by virtue of the Multi-storey Buildings (Owners Incorporation) Ordinance (Cap. 344) and by virtue of the Deed of Mutual Covenant applicable to Balwin Court, could have removed the offending notices at any time. Its failure to do so will no doubt aggravate damages substantially, should judgment be given against them in the main action. No reason of any substance as to why it should not have done so was advanced to us.

13. Nor have the plaintiffs explained to my satisfaction why they did not remove the notices themselves. Whatever they may have thought their legal rights were to interfere with the notices, common sense would surely have suggested that they should have pulled them down, instead of leaving them there for weeks for anyone to read. They did not even take this step when the defendants, in their defence, told them that they might do so.

14. We can only assume that personal factors have blinded both parties to good sense. This folly is further emphasized by the bringing of this appeal. The notices have already been removed, in obedience to the mandatory injunction. And the interim injunction will become ineffective tomorrow morning, the return date of the adjourned summons.

15. So even if we concluded that the Judge was wrong as to the mandatory injunction, our reversal of his order in that respect would be ineffective.

16. And if we decided that he should not have granted the interim injunction, on the basis of the material which was put before him on 23rd December, this would not inhibit him from making a further injunction, of the same nature, on the return date, tomorrow.

17. Having said this, I nevertheless recognize that a party to a civil action is entitled to appeal against any order (wherever a general right of appeal exists in law) to an appellate court, so that the correctness of that order may be tested, however futile his exercise of this right may be.

Power to grant mandatory injunction

18. On the basis that the notices were defamatory, did the Judge have power to make a mandatory order of the kind which he did?

19. It was submitted on behalf of the defendants that such an order could only be properly made if it could be shown that they were in breach of a duty to remove the notices from the wall. If they had no more than a right to remove them, the order should not be made and the plaintiffs should be left to remove the notices themselves if they wish.

20. Section 18 of Cap. 344 confers duties and powers on "the corporation". By section 29 of the Ordinance, the duties and powers conferred or imposed on the corporation "shall be exercised and performed on behalf of the corporation by the management committee."

21. The relevant parts of Section 18 of the Ordinance, are as follows -

22. It was argued before us that the removal of notices fell within the requirement to maintain the common parts in "clean condition". In my view, this is an unrealistic interpretation of the paragraph, which is surely meant to ensure no more than that the common areas of the building are not allowed to become dirty. Its context shows that it was not intended to deal with the removal of notices but with the removal of dirt.

23. Paragraph (c), however, throws: on the committee a duty to enforce the covenants contained in the deed of mutual covenant, one of which prohibits any owner of property in Balwin Court from posting any notice in the common areas.

24. It was submitted that there is no evidence to show that it was an owner of property in the Court who had affixed the notices complained of. Accepting that this is so, I think that it is inherently unlikely that anyone else would have been responsible. The notices alleged that the plaintiffs had misused funds collected from owners to pay for facilities in the Court. Nobody but an owner would have any knowledge of this, assuming it were true, or any interest in exposing the plaintiffs. There is, of course, a possibility of some outsider with an unconnected grievance being responsible, but this seems to be unlikely.

25. So I am prepared to assume, as no doubt the Judge did, though his reasons were not given, that the notices were posted by, or on the instructions of, an owner, in contravention of the deed of mutual covenant, and that the management committee therefore had a duty to remove them. It was thus open to the judge to order the management committee to perform its duty, by removing the notices.

26. There was some reference to Byrne v. Deane⁽¹⁾ in which it was suggested, in the judgment of Slesser, L.J. that, in circumstances not dissimilar to those in this case, that where there is a duty to remove defamatory matter, the person under such duty can be said to have published the objectionable matter, by taking no action to remove it in accordance with his duty.

27. It does not seem to me to be necessary to rely on this dictum. My view that it was open to the judge to order the management committee to perform its duty depends not upon any publication by the management committee, but upon the presence of the notices in common areas in contravention of the deed of mutual covenant.

Discretion to issue mandatory injunction

28. It was submitted that even if the judge had power to issue a mandatory injunction, he should not have done so, on the ground that a mandatory injunction should not be granted if it will effectively decide a substantive claim in the action. In support of this proposition, we were referred to the recent, and so far unreported, case of Mak Chi Sing v. A & A Continental Commodities Limited.⁽²⁾

29. Had the defence been that the publication was not defamatory, it would perhaps have been more difficult for the judge to grant this form of relief, since the right to speak and to criticize freely is not to be lightly interfered with. But the defence is merely that the defendants did not put the notices there.

30. This is not a case, therefore, in which the grant of a mandatory order will effectively dispose of the main issues of the claim. It will merely remove an aggravation of the principal libel by the continued presence in public places of the defamatory matter.

31. A mandatory injunction should not be issued lightly, but an appellate court ought not to interfere with the discretion of a trial judge unless he exercised this in a manner which was demonstrably wrong. We were referred in this connection to Hadmor Productions Ltd. v. Hamilton⁽³⁾ In a passage in his judgment, at p.-1046, Lord Diplock said -

"Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons that it becomes entitled to exercise an original discretion of its own."

32. In this instance, I consider that the judge acted with commendable sense, in ordering action which both parties agreed to be desirable yet which neither was prepared to take for himself. It will be a sad day when the courts allow their discretion to take such steps as common sense dictates to be fettered.

'The interlocutory injunction

33. The main objection taken to the interlocutory injunction was that such relief is seldom granted in a libel action.

34. However, in Bonnard v. Perryman⁽⁴⁾ , the principle was stated that interlocutory relief of this nature may be granted in a libel action if the court would set aside the award as unreasonable if the jury found the matter complained of to be not defamatory. I consider that the words complained of in the notices were so clearly defamatory that this requirement is satisfied.

35. In Quartz Hill Consolidated Gold Mining Company v. Beall⁽⁵⁾, it was held that an interlocutory injunction would not in general be granted unless the applicant satisfied the court that the statements were untrue. In our claim, the defamatory nature of the notices is not challenged. Thus the plaintiff can be said to have established, since the truth of the words is not disputed, that the applicant has shown that the allegations are untrue.

36. During the course of argument before us, we were referred to a recent case, reported only in The Times newspaper, Herbage v. The Times Newspaper and Ors. ⁽⁶⁾ , in which the Court of Appeal approved the following words by Lord Esher, M.R. in William Coulson and Sops v. James Coulson and Co. ⁽⁷⁾ -

"it was for the jury and not for the court to say whether it was a libel or not: 'the question of libel or no libel was for the jury' and the jurisdiction to grant an interim injunction 'ought only to be exercised in the clearest cases, where any jury would say that the matter Complained of was libellous."

37. The headnote to the report in The Times, and a erence in the latest edition of Snell on Equity vested that, where an interlocutory injunction for libel is in issue, the principles set out in the American Cyanamid Case⁽⁸⁾ would not apply.

38. A closer reading of Herbage⁽⁶⁾, however, suggests that the Court of Appeal only meant that the American Cyanamid⁽⁸⁾ decision does not affect the special considerations which are applicable to defamation cases. It is therefore necessary for a party seeking such relief to satisfy not only the tests applied in defamation cases but also those which govern other forms of interlocutory injunction, by virtue of the American Cyanamid Case ⁽⁸⁾.

39. The tests set out in the Cyanamid Case⁽⁸⁾ are, in my opinion, satisfied in this instance. Firstly, the plaintiff has shown that he has a real chance of obtaining a permanent injunction at the trial.

40. Secondly, I do not consider that the plaintiffs would be adequately compensated by an award of damages only if they succeeded, since without an injunction the libel would have been left in a prominent position in a public place.

41. Thirdly, if the defendants were to succeed, would they be adequately compensated by an award of costs, or would they have suffered unreasonable damage, by virtue of the issue of such an injunction? I do not see they would so suffer, as they have disclaimed any connection with the libellous matter.

42. The main object of these injunctions is to prevent the continuance, or renewed publication, of matter that is clearly libellous, in a public place. Taking these matters into account and with the facts of the case as a whole, I am satisfied that the balance of convenience lies with the making of the order.

43. So I do not consider that it was an improper exercise of the judge's discretion, to order the interim injunction, in relation to the notices and the circular letter pending the resumption of the hearing of the summons, particularly as both parties sought the adjournment in order to file further evidence.

44. I would therefore dismiss the appeal.

Huggins, V.P.:

45. If ever there were a typhoon in a coffee-cup, this is it.

46. I have never been in any doubt that the second part of the order was within the jurisdiction of the judge and was properly made. My only doubt has been as to the granting of the mandatory injunction.

47. The Appellants appeal, first, on the ground that "the learned judge erred in proceeding on the basis that the Plaintiff's case is correct". It may be that I misunderstood what was intended, but I thought what was going to be argued was that the judge, having adjourned the whole of the summons before him (including the application for a mandatory injunction), was wrong to grant a mandatory injunction on what was then an ex parte application by counsel appearing before him, because, if it was right to grant the injunction on the ex parte application, it must have been right to grant it on the inter partes application then and there. That point, however, has not been taken on the appeal and therefore I need say no more about it.

48. The question which has been argued is whether or not the judge rightly exercised his discretion. For myself I am in grave doubt whether I would have exercised my discretion in the same way as he did in relation to the mandatory order. A mandatory injunction, once obeyed, cannot be undone. There was to be an adjournment for a short time and it seems to me that there was little to choose between these two (if I may adopt my Lord's words) "pigheaded" parties: each of them could very well have taken the notices down.   However, the judge saw fit to make the order and, assuming that it was not wrong to make the order because he had not heard all the evidence, then I think he was entitled to come to the decision he did, and the mere fact that I would have come to a different decision as to the mandatory order is neither here nor there.

49. I agree that the appeal should be dismissed.

Barker, J.A.:

50. I agree, and do not feel it necessary to add any judgment of my own.

(1) [1937] 1 K.B. 818.

(2) Civ. App. 107/83.

(3) [1982] 1 All E.R. 1042

[1891] 2 Ch. 269.

[1882] 20 Ch: D 501. The Times for 30.4.81.

[1887] 3 T.L.R. 8 46.

(6) The Times for 30.4.81.

(8) [1975] A.C. 395.

Representation:

Benjamin Chain, inst'd by Messrs. Chung, Kwan, Chan & Evans, Solicitors, for Defendants/Plaintiffs.

A. Rogers, inst'd by Messrs. Co., Solicitors, for Plaintiffs/Respondents.