Lo Ki Chung v. Hong Kong Nam Hoi (Sha Tau District) Association Ltd
Read the full judgment text of HCA 39/2003 on BabelCite. This High Court CFI judgment was delivered on 22 July 2004.
1. This is a libel action. The background facts leading to this action may be summarized as follows.
Cited by 7 cases
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HCA000039/2003 HCA39/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO.39 OF 2003 ----------------------
----------------------- Coram: Deputy High Court Judge Poon in Court Dates of Hearing: 15 - 18, 26 March and 15 June 2004 Date of Judgment: 22 July 2004 ---------------------- J U D G M E N T ---------------------- 1.This is a libel action. The background facts leading to this action may be summarized as follows. THE ASSOCIATION 2.In Hong Kong, there are various clansmen's associations formed for the purposes of fostering relationship amongst clansmen originating from the Mainland China and now residing in the territory. Nam Hoi Sha Tau Association, Hong Kong ("the Association") was one of them. Set up in the 1920s, it was an unincorporated association of the Nam Hoi Sha Tau clan. THE DEFENDANT 3.On 21 December 1973, the defendant, a company limited by guarantee, was incorporated as a non-profit making institution to take over the management, assets and liabilities of the Association. As the Association's successor, the defendant naturally aims at promoting, maintaining and fostering friendly intercourse and affection between the clansmen of Nam Hoi Sha Tau clan : see Clause 3(2) of its Memorandum of Association. 4.The defendant's structure and operations are defined in its Articles of Association. Some of the more pertinent articles are set out below. MEMBERS OF THE DEFENDANT 5.Initially, to be eligible to become a member of the defendant, the individual must be a clansman of the Nam Hoi Sha Tau clan. He must also possess a good character : Article 3. By virtue of special resolution dated 8 December 1998 which amended Articles 3 and 4, the first requirement has been removed. Any person, though not a Nam Hoi Sha Tau clansman, can now join the defendant as a member. 6.Members of the defendant are divided into two classes, namely, (a) life members (永遠會員) and (b) ordinary members (普通會員) : Article 5. 7.In order to become a life member, a member is required to pay to the defendant a life membership fee of $200 together with payment of certificate fee of $2 and welfare fund of $5. The annual subscription of a life member shall be HK$20 : Article 6 as amended by special resolution dated 8 December 1978. 8.The annual subscription of an ordinary member shall be $30 : Article 7 (as amended by special resolution dated 28 November 1986). 9.If a member fails to pay his subscription for more than six months as well as fails to pay his wreath fee for more than 10 persons, then he shall have no more interest or right in the defendant : Article 10 (as amended by special resolution dated 9 August 1978). HONORARY DIRECTOR (名譽會董) AND PERMANENT HONORARY PRESIDENT (永遠名譽會長) 10.Any person who contributes $400 to the defendant shall be Honorary Director (名譽會董). Any person who contributes $1,000 to the defendant shall be Permanent Honorary President (永遠名譽會長) : Article 6 as amended by special resolution dated 8 December 1978. THE EXECUTIVE COMMITTEE 11.The Executive Committee of the defendant shall consist of 27 elected members and 9 reserves. The elected members shall elect amongst themselves one Chairman (理事長) and two Vice-Chairmen (副理事長). The Executive Committee shall set up nine departments (組) as provided therein : Article 29 (as amended by special resolution dated 9 August 1978). 12.The Executive Committee is vested with the management of the business and control of the defendant. It may exercise all powers, authorities and discretions conferred by the Articles and may also exercise such powers or do all such act and things as may be exercised by or done by the defendant. It must also carry into effect any resolution passed by the general meeting and the Committee itself and examine and control the affairs of the defendant : Article 34. 13.Among other duties, the Executive Committee shall cause true accounts to be kept of all the sums of moneys received and expanded by the defendant and the matters in respect of which such receipt and expenditure take place, and of the assets and liabilities of the defendant : Article 57. Presumably, the account and balance sheet have to be submitted to a general meeting for approval : see Article 59. THE SUPERVISORY COMMITTEE 14.The Supervisory Committee of the defendant shall consist of 9 elected members and 5 reserves. The elected members shall elect amongst themselves one Chairman (監事長) and two Vice-Chairmen (副監事長). The Supervisory Committee shall set up an Audit Department (稽查組) and a Supervisory and Investigation Department (監查調查組) : Article 30. 15.The Supervisory Committee shall supervise the carrying into effect of all resolutions passed by a general meeting and the work done in connection with the management of matters or affairs of the defendant by the Executive Committee and shall examine and check all accounts of receipts and payments of the defendant. It supervises daily the work done in connection with the management of matters or affairs of the defendant by the Executive Committee : Article 47. MEETINGS OF THE COMMITTEES 16.Both the Executive Committee and the Supervisory Committee shall hold a meeting of its own committee every month or at any time it is thought fit : Article 31. 17.The Chairman of the Executive Committee and the Chairman of the Supervisory Committee shall call a joint meeting of the Committees ("Joint Meeting") at any time if they think fit : Article 34. THE 1ST EXECUTIVE AND SUPERVISORY COMMITTEES 18.The members of the Executive Committee (理事會) and Supervisory Committee (監事會) of the 46th Executive and Supervisory Committee of the Association shall be the 1st Executive Committee and Supervisory Committee of the defendant and they shall be entitled to hold office until the conclusion of the next Annual General Meeting : Article 28. THE PLAINTIFF 19.The plaintiff was the chairman of the 46th Executive Committee of the Association and pursuant to Article 28 mentioned above, the chairman of the 1st Executive Committee of the defendant for the period between 1 April 1974 and 31 March 1976. It is common ground that after the Joint Meeting on 7 December 1975 (more than three months before his term expired), the plaintiff left and has since not visited the defendant's association premises up to date. 20.It is the defendant's case that he was once awarded the title of "Permanent Honorary President" but ceased to be so after 8 November 2001 and once a life member of the defendant but ceased to be so sometime prior to 1984. The plaintiff maintains that he is still the Permanent Honorary President (永遠榮譽會長) and the Permanent President (永遠會長) and a life member of the defendant. EVENTS LEADING TO THE PUBLICATIONS COMPLAINED OF 21.By notice dated 24 September 1999, the defendant called for a general meeting to be held on 8 October 1999. On 8 October 1999, Messrs Paul W. Tse & Co. ("PT") wrote to the defendant on behalf of a member of the defendant, Mr Wu Kam Kong and the plaintiff, described as the defendant's Permanent President ("PT's letter"). PT raised objection to the calling of the general meeting on the ground that the defendant had failed to give sufficient notice of the meeting pursuant to the Articles of Association. Despite the objection, the general meeting went ahead as scheduled. 22.On 13 October 1998, the plaintiff together with one Mr Wu Hon Ming wrote to the defendant, raising objection to certain amendments made to its Articles of Association ("the 13/10/98 letter"). They purported to write on behalf of the defendant's Permanent Presidents, Permanent Honorary Presidents, Permanent Honorary Directors, Members and Juniors Members. At the bottom of the letter were the purported signatures of Mr Wu, the plaintiff and some 28 individuals. 23.By letter dated 26 October 1999 addressed to the defendant, Messrs Au-yeung, Cheng, Ho & Tin ("AY"), acting for the plaintiff, referred to PT's letter of 8 October 1999 and contended that the general meeting held on 8 October 1999 was not held in accordance with the defendant's Articles of Association. 24.The defendant's response did not come until 23 February 2001, when their solicitors, Messrs Poon & Cheung ("PC") wrote to the plaintiff, Mr Wu Kam Hong, Mr Wu Hon Ming and PT. Various clarifications were made :
The plaintiff was further requested to produce evidence substantiating his alleged membership and position of "Permanent President" of the defendant. 25.On 12 April 2001, PC wrote to the plaintiff again, advising him that the defendant had been unable to retrieve from its record any document concerning the creation of the position of "Permanent President". The plaintiff was asked to produce his letter of appointment or written resolution for substantiation purpose. He was also asked if he was a discharged or undischarged bankrupt, which was relevant to the question of his membership. 26.On 20 April 2001, the defendant issued a circular to those who had purportedly signed on the plaintiff's letter of 13 October 1998, demanding from them for an explanation. 27.On 26 April 2001, pending the plaintiff's reply to its letter of 12 April 2001, PC wrote again to the plaintiff concerning his allegation that he was the defendant's "Permanent President" and his financial position with documentary proof. 28.On 26 April 2001, the plaintiff replied to PC's letter of 12 April 2001, stating, inter alia, that :
29.The above exchange of correspondence eventually led to the defendant's publications that the plaintiff complained of. PUBLICATIONS COMPLAINED OF 30.On 31 May 2001, the Executive Committee and the Supervisory Committee of the defendant jointly issued a letter to all its members ("the Letter"), which read :
31.On 15 June 2001, the defendant's solicitors did cause a notice to be advertised in the two said newspapers ("the Notice"). It read :
SUBSEQUENT EVENTS 32.Responding to the defendant, the plaintiff caused a notice to be published in Da Gung Pao (大公報) on 22 June 2001 to the effect that he was the "Permanent Honorary President" of the defendant; that no "Permanent Honorary President", "Permanent Honorary Director" or "life member" was required to pay any subscription; that the position of "Permanent President" originated from the Association in 1966 when the permanent premises (永久會所) was purchased; and that the position was awarded to those 20 persons who had made contributions to the purchase, including the plaintiff. 33.On 11 September 2001, the defendant's Executive Committee wrote to the plaintiff, inviting him to attend a special joint meeting of the Executive and Supervisory Committees scheduled on 8 October 2001. However, he did not turn up at the meeting. 34.On 8 November 2001, the defendant resolved to discharge the plaintiff from the position of "Permanent Honorary President". On the very next day, the defendant published to its members a notice entitled "劃清界線聲明", stating that as a result of the joint meeting of the Executive and Supervisory Committees on 8 October 2001 and the resolution passed on 8 November 2001, the defendant was to have no association whatsoever with the plaintiff. 35.On 24 November 2001, Messrs. Adrian Yeung & Cheng ("AYC") wrote a letter of demand to PC concerning the Letter and the Notice. On 24 November 2001, PC wrote to AYC in reply. THE PLAINTIFF'S COMPLAINTS 36.Thereafter, the plaintiff did not take the matter any further until 7 January 2003 when he commenced the present action. 37.According to the amended statement of claim, the plaintiff found the following parts of the Letter and the Notice defamatory :
38.The plaintiff pleads in paras.4a-4f of the re-amended statement of claim that the objectionable parts of the Letter and the Notice contain the following natural and ordinary meanings respectively :
39.As a further or alternative plea, the plaintiff alleged that the objectionable parts in the Letter and the Notice, for reason of certain extrinsic facts, have the same meaning as the natural and ordinary meanings by way of innuendo. The extrinsic facts are :
40.The plaintiff therefore claimed for, inter alia, injunctive relief and damages including exemplary damages. DEFENCE 41.In the amended defence, the defendant first denied that the words complained of bore or capable of bearing the meanings pleaded in their natural or ordinary meaning or by way of innuendo. The defendant then raised the defence of justification and qualified privilege. REPLY ― EXPRESS MALICE 42.In relation to the defence of qualified privilege, the plaintiff, by way of the re-amendment introduced to the amended reply with leave given by me on the first day of the trial (15 March 2004), raised express malice in these terms :
Particulars
THE MAIN ISSUES 43.From the pleadings, I have identified four main issues that require my determination. They are :
I will deal with them in turn. Where applicable, I will first set out the law and then discuss the evidence. ISSUE I : WHETHER THE PARTS COMPLAINED OF ARE DEFAMATORY? (1) The law 44.The tort of libel and slander consists of publication of matters (usually words) that convey a defamatory imputation. It is difficult to define with precision the meaning of "defamatory" : see Gatley on Lible and Slander, (2004 edn), para.2.1 ("Gatley"), quoting Lord Atkin in Sim v. Stretch (1936) 52 LTR 669. But it has been generally that a defamatory imputation is to the complainant's discredit; or which tends to lower him in the estimation of others; or causes him to be shunned or avoided; or exposes him to hatred, contempt or ridicule; or damages his reputation in the office, trade or profession : see Gatley, ibid. 45.In order to be defamatory, the imputation must tend to lower the complainant in the estimation of right-thinking members of the society generally. In Tolley v. Fry [1930] 1 KB 467, Geer LJ said at p.479 :
46.When written words are the medium whereby the defamatory imputation is conveyed, the imputation may be conveyed by the words themselves in their natural and ordinary meaning or by reason of extrinsic facts known to the recipients. The latter case gives rise to an "innuendo", which is a separate cause of action : see Gatley, para.3.2, at pp.76-77 and para.3.18 at p.96.
47.Natural and ordinary meaning of the words refer to the meaning in which reasonable people of ordinary intelligence, with the ordinary person's general knowledge and experience of worldly affairs, would be likely to understand them. The question is what would the words conveyed to the mind of the ordinary, reasonable, fair-minded reader? See Gatley, para.3.15 at pp.92-93. 48.The notion of natural and ordinary meaning has two elements in it, namely, literal meaning and implication. In Lewis v. Daily Telegraph [1964] AC 233, Lord Reid said at p.258 :
It is therefore immaterial whether the defamatory imputation is conveyed by words of direct assertion or by suggestion, for insinuation may be defamatory as an explicit statement : see Gatley, para.3.16 at p.94. 49.The complaint must plead in his statement of claim and prove at trial the defamatory imputation which he contends the words complained of, in their natural and ordinary meaning, convey.
50.Where the complaint pleads innuendoes, he must not only identify in his statement of claim the defamatory meaning which he contends the words convey but also identify the relevant extrinsic facts and prove that those facts were known to at least one of the recipients : Gatley, para.3.18 at p.96. 51.With the above principles, I now consider if the parts complained of in the Letter and the Notice are defamatory as alleged. I first deal with the objectionable parts in the Letter. (2) The objectionable parts in the Letter 52.To recap, the parts in the Letter that the plaintiff finds objectionable are :
53.The 1st Paragraph relates to how the plaintiff conducted himself as the chairman of the defendant's 1st Executive Committee. The 2nd Paragraph relates to his being suspected of using the title "Permanent President" improperly and without authority. 54.As to the 1st Paragraph, it should be borne in mind that it referred to the time when the plaintiff was the chairman of the defendant's 1st Executive Committee between April 1974 and March 1976. It did not cover events prior to April 1974 or events that took place when the plaintiff was the chairman of the 46th Executive Committee of the Association. The plaintiff has not contended otherwise. Accordingly, I find that on the 2nd Imputation, the point that the defendant had wrongfully alleged that the plaintiff did not perform his duties during his chairmanship in 1973 is not substantiated. Save as aforesaid, I am satisfied that the 1st Paragraph, in its natural and ordinary meaning, did contain the 1st to 5th Imputations. 55.As to the 2nd Paragraph, I am satisfied that in its natural and ordinary meaning, it bears the 6th Imputation. 56.The 1st to 6th Imputations are all defamatory and I so find. As I understand Ms Wu, counsel for the defendant, she did not seriously contend otherwise in her closing submissions. 57.On the alternative plea of innuendo, the undisputed evidence before me is that members of the defendant did know that the plaintiff, as the chairman of the 1st Executive Committee, was responsible for the management of the defendant in 1974. I am therefore satisfied that when the 1st Paragraph was read and understood in the circumstances, they would denigrate the plaintiff's characters in the eyes of the defendant's members. However, I am not satisfied that such knowledge of the defendant's members has any bearing on the imputation conveyed in the 2nd Paragraph. Accordingly, I find that the plaintiff succeeds in his plea of innuendo on the 1st Paragraph only. (3) The objectionable parts of the Notice 58.To recap, the plaintiff finds the following part in the Notice objectionable :
On the face of it, two points are raised by this statement. First, the plaintiff interfered with the defendant's affairs repeatedly although he was not a member ("the 1st Point"). Second, he was suspected of using the title "Permanent President" improperly ("the 2nd Point"). 59.On the 1st Point, the plaintiff has not pleaded in the amended statement of claim what its natural and ordinary meaning was and how a defamatory imputation is conveyed. In the absence of proper pleading, the plaintiff's claim that the 1st Point in its natural and ordinary meaning is defamatory, must fail. The plaintiff also relies on innuendo to make good his claim on the 1st Point. But again knowledge on the part of the defendant's members that he was responsible for the defendant's management of the defendant in his capacity as the chairman of the Executive Committee in 1974 has nothing to do with the 1st Point at all. In the circumstances, I rule that the plaintiff's claim that the 1st Point is defamatory by reason of innuendo fails. 60.As regards the 2nd Point, Ms Wu submitted that no reasonable persons of ordinary intelligence, with the ordinary person's general knowledge and experience of worldly affairs would understand the words, in light of the clear qualifying words (涉嫌), indicating reservation, to mean that the plaintiff did actually use the title of Permanent President without proper authority. With respect, I disagree. In the Notice, the defendant did make the point that it does not have the title Permanent President. The 2nd Point, properly understood in context, must carry the implication that the plaintiff had used the title and that his use was without authority. I therefore rule that the 2nd Point in its natural and ordinary meaning bears the 6th Imputation. 61.As noted above, knowledge of the defendant's members that the plaintiff was responsible for the management of the defendant in 1974 as the chairman of the defendant's Executive Committee has no bearing on his use of the title Permanent President. The plaintiff's plea that the 2nd Point by reason of innuendo is defamatory therefore fails. 62.To recap, my finding on Issue I is as follows :
63.I next turn to the defence of qualified privilege. ISSUE 2 : WHETHER THE DEFENCE OF QUALIFIED PRIVILEGE IS ESTABLISHED? (1) The law 64.I first note that section 28 of the Defamation Ordinance, Cap.21 ("the Ordinance"), which sets a limitation on privilege at elections, is not applicable to the present case. 65.At common law, the defence of qualified privilege recognizes that there are certain circumstances in which a person may make defamatory statements yet without attracting liability on grounds of public policy and convenience. The person is protected if the statement is fairly warranted by the occasion, that is, within the scope of the purpose for which the law grants the privilege and so long as it is not shown that the statement is made with malice, that it, with some indirect or improver motive or knowing it to be untrue, or with reckless indifference as to its truth : Gatley, para.14.1 at p.379. 66.Generally speaking, it is the occasion, as opposed to the publication, that attracts the privilege. And the occasions that give rise to qualified privilege can neither be catalogued nor rendered exact. But they can be very broadly divided into two categories, although one must bear in mind that these two categories are imprecise and may overlap. The first category is cases where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it ("the duty-interest category"). The second category is cases where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient : Gatley, para.14.6 at p.384. As I understand Ms Wu, she is relying on the duty-interest category only.
67.Whether for the purposes of qualified privilege in the duty-interest category a duty on the part of the marker to make the publication exists is for the court to determine. While it is not difficult to determine whether there was a legal duty to make the publication, the great difficulty in defining what constitutes social or moral duty has long been recognized : see Gatley, para.14.10 at pp.388 and 399. But it would appear from the authorities cited by Gatley, ibid. that the court would apply the standard of the ordinary reasonable man and ask whether a duty, moral or social, was recognized by him in the circumstances. If so, a moral or social duty, as the case may be, would arise. 68.In considering whether an occasion was privileged, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why and in what circumstances it was published, and will see whether these things established a relation between the parties which gives rise a social or moral right or duty, and the consideration of these things may involved the consideration of questions of public policy : James v. Barid, 1916 S.C. (H.L.) 158, per Earl Loreburn at pp.163-164. In the present case, no question of public policy arose.
69.As regards corresponding interest, the word "interest" is not used in any technical sense, but in the broadest popular sense, "as when we say that a man is 'interest' in knowing a fact - not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news" : Howe v. Lees (1910) 11 CLR 361, per Higgins J at p.398. 70.With these principles in mind, I turn to consider if the Letter and the Notice is privileged. I will first deal with the circumstances leading to the publications. I will then address the duty-interest aspects for both publications. Finally, I will come to the question of malice. (2) Why published the Letter and the Notice? 71.The evidence on this point is given by Mr Chui Pak Keung, the chairman of the Executive Committee between 1 April 1998 and 31 March 2004 ("Mr Chui"). Mr Chui explained that the Executive and Supervisory Committees decided to publish the Letter and the Notice because the plaintiff's conduct had aroused concerns and dissatisfaction from the members, especially the older ones. Someone had even made a report to the ICAC concerning the defendant. Mr Chui is well connected in the Mainland. He is a member of Consultative Committee (政協) in the Mainland. (It is not clear whether his membership is at the provincial or national level.) Through his contact, he learnt that the plaintiff had complained to the local government of Nam Hoi City, as well as other associations like "南海市僑聯" in respect of the conduct of business and affairs of the defendant. 72.In such circumstances, the Committees decided that it was necessary to account to its members (一定要向會員交待，以正視聽). A "special committee " (專責調查小組) ("the Special Committee") comprising of Mr Chui himself, one Mr Lee Kwok Hung (李國雄) and Mr Wong Sing Kei (王丞基) was formed for the purpose of investigation of the matters concerning the plaintiff. There was as special reason for the composition of the Special Committee. The three members were selected on the basis that they all belonged to a new generation. None of them had any personal knowledge (親身經歷), emotion (情緒) nor historical burden (歷史包袱) of what had happened, in which case they could cast a much fairer eye at the cause (較公允). The Special Committee had visited numerous senior members of the defendant (走訪了多位資深會員), including Mr Chui Yeung Sing (崔養成), Mr Leung Hong Kwong (梁康廣) and others to gather evidence. The Special Committee had also consulted and made reference to the past minutes and records and Articles of Association of the defendant. 73.With the benefit of the Special Committee's investigations and after repeated meetings, the Committees decided to issue the Letter and the Notice. 74.Mr Chui's evidence on the above matters is not seriously challenged. Indeed, the plaintiff has not adduced any credible evidence to contradict Mr Chui. 75.I now look at the duty-interest aspects of the Letter and the Notice in greater detail. (3) The Letter 76.The Letter was an internal publication. It was published to the defendant's members only.
77.The first question is whether the defendant was under a duty, legal, social or moral, to publish the Letter to its members. Nothing in the evidence before me suggests that the defendant is obliged by the law to publish the Letter. 78.I am however satisfied that that the defendant was plainly under a moral or social duty to publish the Letter. The defendant is a clansman's association with the primary objective to promote, foster unity and friendly (and in some cases long term) relationship amongst its members. The daily management is vested with Executive Committee, subject to the supervision of the Supervisory Committee. In the course of discharging their duties, the Committees are plainly under a duty to speak to its members concerning any matter that may affect the business, affairs interests or welfare of the defendant or the members qua members. In discharging such a duty, the Committees should be able to speak freely and frankly in order to convey to the members what they honestly believe to be true. This point is indeed borne out by the undisputable evidence of Mr Chui as summarized in paras.71 to 73 above.
79.The next question is whether members of the defendant have any corresponding interest in the matters set out in the Letter. As noted above, the defendant, a clansman association, aims to promote unity and friendship of its members, who are mostly clansmen of the same clan. The defendant is akin to a club. Like the members of a club, members of the defendant have every interest in the matters of the defendant, including those serious matters referred to in the Letter : see Khan v. O'Dea & Shroff, unreported, HCA5850/1982, 27 February 1985, Hunter J. (4) The Notice 80.The Notice is a publication on newspaper. It is therefore a publication to the world at large.
81.Again, there is no legal duty on the defendant to publish the Notice. Contending that the defendant was under a social or moral duty to do so, Ms Wu submitted that the information contained in the Notice was so important that the defendant owed a duty to render it even to the public. To make good her submissions, Ms Wu relied on the following factors. 82.First, the defendant was in the best position to tell whether a particular person (i.e. the plaintiff) was its member and whether there was any position of "Permanent President" in its structure. This was knowledge within the absolute confines of the defendant to which the outsider would have no access. 83.Second, any association in the position of the defendant (with a person claiming to be its "Permanent President") was bound to make the clarifications as it did. In cross-examination, Mr Chui said that the plaintiff's alleged position in the defendant had aroused numerous external speculation ("引起外界的多番揣測") and that other friendly associations (友會) like Nam Hoi Association ("南海同鄉會") queried about the structure of the defendant ("有人問香港南海沙頭同鄉會有限公司的是什麼制度"). In re-examination, Mr Chui further explained that had there been the position of "Permanent President", the holder of it would resemble the "head or No.1" of the defendant (首長/第一把交椅). 84.Third, the defendant, a non profit-making institution, is dependent on subscription and donation by charity organizations (Clause 3(1) of the Memorandum of Association as amended pursuant to the special resolution dated 8 December 1998). For this reason, the defendant has to be careful in maintaining its image so as not to discourage its subscribers or otherwise impairs its ability in carrying out charitable objects. As said by Mr Chui in re-examination, the defendant has an image to maintain, and the conduct of the chairman of the Executive Committee will reflect on it ("會有一個形象，身為負責人，他的品行操守若給人有看法的時候，人家會怎樣看你"). 85.I entirely agree.
86.The second question is whether the public had a corresponding interest. I remind myself that the word "interest" should be construed in the broadest popular sense, as opposed to a technical sense. 87.Ms Wu asked me to note that pursuant to the special resolution dated 8 December 1998, Articles 3 and 4 of the Articles of Association were amended to the effect that anyone can join the defendant as a member, following which any member of the public now becomes a potential member of the defendant. The conduct of affairs and business of the defendant is among one of the very factors influencing a person's decision as to whether to join the defendant or other associations. She further contended that as is the case with any charitable organization, the public that is subscribing and making donations to the defendant or is going to do so would have the requisite interests in this connection. 88.Again, I agree. (5) Conclusion on duty-interest aspects 89.Accordingly, I find that the duty-interest aspects for both the Letter and the Notice are established. I rule that the occasions where the Letter and the Notice were published were privileged, subject to the plaintiff's allegation of express malice, to which I now turn. (6) Express malice
90.The defence of qualified privilege will be defeated by proof of express malice on the part of the defendant. The law in the context of qualified privilege had been authoritatively restated by Lord Diplock in Horrocks v. Lowe [1975] AC 135 at pp.149-150. The learned editors of Gatley have offered a useful summary in para.16.3 at pp.510-511 as follows :
91.Under Order 82, rule 3(3), if a plaintiff seeks to destroy the defence of qualified privilege by an allegation that the defendant was actuated by express malice, he must give the particulars of facts and matters from which such malice is to be inferred in the reply. Initially, this pleading requirement was ignored in the amended reply. The amended reply was then re-amended to add a new para.14 : see para.42 above. The particulars set out there referred to two instances of issuing letters threatening legal action. I fail to see how threatening legal action in hostile litigation, per se, is capable of constituting express malice in rebuttal of the defence of qualified privilege. Mr Yam, counsel for the plaintiff, has not been able to convince me otherwise. In my view, this plea of express malice fails in limine.
92.When cross-examining Mr Chui, Mr Yam did suggest to him that the plaintiff's misdeeds were not recorded in the record of minutes of meetings of the Executive Committee and Joint Meetings. It is not clear if Mr Yam is suggesting that the defendant did not honestly believe that the matters referred to in the Letter and the Notice were true. For completeness, I will deal with this point on the basis that it had been raised. 93.In the absence of proper pleading, the plaintiff is not entitled to rely on it. More importantly, the plaintiff has failed to prove that the defendant did not have honest belief or was reckless or indifferent as to the truth of the matters published in the Letter or the Notice. As noted in paras.71 to 73 above, the defendant had taken steps of setting up the Special Committee to carry out thorough investigation into the matters. And the relevant records kept by the defendant which the Special Committee had considered did contain information that supported the matters referred to in the Letter and the Notice. These records are :
94.In the circumstances, even if properly raised, the point of absence of honest belief on the part of defendant must fail on evidence.
95.In the course of cross-examining Mr Chui, Mr Yam alluded to the following :
96.It seemed that Mr Yam sought to rely on the above to show that the defendant had improper motives. Again, none of these matters have been pleaded in the reply. The plaintiff is simply not entitled to rely on any of them to substantiate his case of express malice. 97.In any event, the plaintiff has been unable to substantiate these allegations on evidence. 98.On the first allegation, Mr Yam argued that there was no reason why the defendant would publish in 2001 the Letter and the Notice containing matters which went back to the 1970's. The only purpose of the two publications was to defame the plaintiff in the eyes of the members of the defendant in retaliation so as to prevent him from making further petitions or objections to the defendant. But such an argument is flatly contradicted by the undisputable evidence of Mr Chui as to why the defendant decided to publish the Letter and the Notice : see paras.71 to 73 above. To recap, the defendant decided to publish the Letter and the Notice in order to account to its members and to put the matters correct on record. And the defendant has taken the caution to investigate thoroughly into the matters concerning the plaintiff before deciding to publish the Letter and the Notice. No improper or ulterior motive as suggested by Mr Yam can be inferred. His submission is wholly unmeritorious. And I reject it. 99.On the second allegation, Mr Yam argued that the defendant published the Letter and the Notice in order to harm the plaintiff. Thus, it was put to Mr Chui in cross-examination that there was a verbal dispute between the plaintiff and Mr Chui in 1998 in which Mr Chui said : "我係大學生，做鄉會理事長係小學生的事情...你實在太沙塵，我要唱衰你...". Mr Chui denied this allegation. He said that he was first introduced to the plaintiff through the introduction of one Mr Wu Kam Hon in 1996. Thereafter, he had about two to three telephone conversations with the plaintiff, during which they did not talk about the defendant. I accept Mr Chui's evidence. I see no reason why Mr Chui had to "bad-mouth" the plaintiff as alleged. Further, if this allegation were true, it would not have been necessary for the defendant to take the cautionary step to carry out investigation by the Special Committee. It would have issued the Letter and the Notice right away. 100.On the 3rd allegation, the particulars of the letters were not identified with precision during cross-examination. In any event, none of the letters issued on behalf of the defendant by its solicitors could possibly constitute any improper motive as alleged. 101.For the above reasons, I hold that the plea of express malice fails. (7) Conclusion 102.For the above reasons, I will answer Issue II in the affirmative and hold that the defence of qualified privilege is established for both the Letter and the Notice. It is a complete answer to the plaintiff's complaints. On this basis, the plaintiff's claim is dismissed. ISSUE III : WHETHER THE DEFENCE OF JUSTIFICATION IS ESTABLISHED? 103.In light of my conclusion on Issue II, it is not necessary for me to deal with the defence of justification. However, for completeness, I will state my views as follows. Again, I will begin by stating the law. (1) The law 104.It is a defence for the defendant to establish that the imputation in respect of which he is sued is substantially true. It will be sufficient if the defendant is able to prove the main charge, or gist, of the liable is true. It is not necessary for him to justify each and every statement or comment which does not add to the sting of the charge : Edwards v. Bell (1824) 1 Bing.403; see also Gatley, paras.11.9-11.10 at pp.275-277 and section 26 of the Ordinance. (2) Witnesses 105.As to evidence, apart from himself, the plaintiff has called two witnesses, namely Mr Fung Kwok Lau ("Mr Fung"), the assistant to the Investigation Department of the 1st Executive Committee of the defendant, and Mr Chow Chiu Kwong ("Mr Chow"), one of the presidents of the 1st Executive Committee of the defendant. The defendant has called Mr Woo Ying Lou ("Mr Woo"), the chairman of the 2nd Executive Committee of the defendant. They are all of advanced age. Mr Chow is aged 82 while others are all over 70. And their evidence is on matters that took place nearly two decades ago. It is not unlikely that their memory of the events had faded over the years. I will therefore approach their evidence with caution. Further, I do not propose to deal with every singly aspect of their evidence. Suffice it to say that I have already carefully considered all the evidence. With these markers, I will now look at the 1st to 6th Imputations in turn. (3) The 1st Imputation 106.The defendant seek to rely on various incidents for justification revealed in Mr Woo's oral testimony. 107.First, in the latter half of 1975, the plaintiff was in need of money. As a result, he had to instigate a "hwei" (會) among the fellow members of the defendant including Mr Wu Chan (胡振), Mr Fung Sang (馮生), Mr Wu Gai Chau (胡繼儔), Mr Ho Him Tai (何謙泰), Mr Li Sai Loi (李世來), Mr Mok Hing (莫慶) and Mr Woo himself. Since the plaintiff was the head of the hwei, he took over the money gathered from the other nine members, with each contributing HK$1,500.00 for his own use. Afterwards, the whereabouts of the plaintiff could no longer be located. As a result, Mr Fung Sang and Mr Woo were forced to take up the second and the third meeting respectively. Up until now, no repayment has yet been made by the plaintiff to the then members of the hwei. 108.Second, some time in 1974 and 1975, Mr Chui Cham (崔湛) told Mr Woo that he had advanced to the plaintiff a loan in the sum of HK$7,000.00. As repayment, the plaintiff drew Mr Woo a cheque. But it was later dishonoured. 109.Third, in 1974 or 1975, the plaintiff was indebted to Mr Chui Koon Gueng (崔權章) and Mr Chui Jiu Cheung (崔照章) who operated the business of Tai Luen Coffee Company Limited, (大聯咖啡有限公司) in the sum of HK$20,000.00. That was balance of the goods advanced to the plaintiff. 110.Fourth, in 1974 or 1975, Mr Woo advanced to the plaintiff a loan in the sum of HK$7,000.00 which had not been repaid. 111.The plaintiff denied that any of the above incidents had taken place. In relation to "hwei", the plaintiff admitted that he instigated a "hwei" in 1978, the members of which included Mr Woo. After the third meeting, owing to the absence of Mr Woo, no further meeting was called. Notwithstanding that, the plaintiff made repayment to the members of the "hwei", except Mr Ho Him Tai and Mr Wu Chan. In the case of Mr Wu Chan, his son refused any repayment to be made by the plaintiff out of love and affection. 112.Mr Fung corroborated the plaintiff by saying that the plaintiff did not instigate any "hwei" during his chairmanship. Both Mr Fung and Mr Chow said it was in 1978 when the plaintiff instigated a "hwei" which failed following Mr Woo's absence. 113.In relation to loans, the plaintiff said that in 1979, Mr Woo lent certain money to him. But the plaintiff had already repaid Mr Woo personally or to his company, "Dor Hing Meat Company" in 1979 to 1980. 114.A number of points arose from the plaintiff's cross-examination :
115.Having considered the evidence in the round, I find Mr Woo's evidence more satisfactory that that of the plaintiff. He was consistent and was not shaken under cross-examination. On the other hand, what the plaintiff said under cross-examination contradicted to a significant extent his evidence-in-chief on the "hwei" matters. In the end, he admitted that he might have raised money through "hwei" during his chairmanship. That being the case, I will disregard the evidence of Mr Fung and Mr Chow that the plaintiff had not instigated a "hwei" during his chairmanship. In sum, I am satisfied that the plaintiff did have financial disputes with other members of the defendant during his chairmanship. The 1st Imputation is therefore justified. (4) The 2nd Imputation 116.As noted above, the 2nd Imputation does not cover events in 1973. This imputation is premised on the fact that the plaintiff had money or financial disputes with other members during his chairmanship. In this connection, I have already found that the 1st Imputation is justified. When the plaintiff got himself involved in those financial disputes with members, he brought the office of the chairman of the Executive Committee into disrepute. This is a certainly a dereliction of duty. I therefore find that the 2nd Imputation is justified. (5) The 3rd Imputation 117.The plaintiff admitted that in December 1975 he left three months before his term of chairmanship expired. However, he said he had applied for and obtained permission from the 1st Executive and Supervisory Committees beforehand. There is simply no record in the record or minutes kept by the defendant considering the plaintiff's application for leave. Given his position and the possible impact of his departing before his term fully expired, his application must have called for attention and concern. The same should be reflected in the record or minutes. The plaintiff then dismissed his early departure as something trivial. It only showed nothing but disregard of his duties as the chairman of the Executive Committee. I find that the plaintiff had without proper excuse and prior approval of the defendant abandoned his chairmanship before the term expired. 118.The plaintiff said that despite his early leave, the conduct of affairs and business of the defendant customers to run as smoothly as in the past. I have difficulty in accepting this allegation. The sudden departure of the plaintiff as the chairman must have caused significant disruption to the defendant's business and affairs. This is to certain extent confirmed by the difficulty Mr Woo faced when he took over the Chairmanship for the 2nd Executive Committee. 119.According to Mr Woo, when he succeeded the plaintiff to become the chairman of the 2nd Executive Committee, the plaintiff was absent from the 1st Joint Meeting of the 2nd Executive and Supervisory Committees. He did not attend to hand over the accounts, book, financial and administration records. Mr Woo admitted in cross-examination that the documents and minutes of the 1st Executive Committee were kept at the defendant's premises or by the then secretary; that more important certificates, e.g. conveyancing documents were kept at the safe deposit; and the bank books and cheques were with the then treasurer. But it is also Mr Woo's evidence that upon his succession, he had to retrieve all the documents. He then found out that all accounts and bank statements were in a mess. As a result, each department had to take time to sort things out. There is no credible evidence before me to contradict Mr Woo. I accept his evidence. 120.As noted above, the plaintiff did not attend the 1st Joint Meeting of the 2nd Executive and Supervisory Committees. I accept the defendant's evidence that the joint meeting was meant to be a "hand-over" ceremony, with significant symbolic meaning in accordance with the defendant's tradition and practice. There is no justifiable excuse for his absence. 121.In summary, I find this imputation justified. (6) The 4th Imputation 122.This has already been dealt with in para.117 above. For those reasons, I find this imputation justified. (7) The 5th Imputation 123.I accept Mr Woo's evidence that the plaintiff had caused serious damage to the defendant's reputation, and that because of his absence, nobody represented the defendant to attend meeting with the association, causing adverse publicity. I find this imputation justified as well. (8) The 6th Imputation 124.There is simply no position of "Permanent President" in the defendant's Articles of Association after its incorporation. Under cross-examination, the plaintiff admitted that he was only the "Permanent President" of the Association. However, he has all along been claiming to be the "Permanent President" of the defendant. His use of the title "Permanent President" is plainly wrong and without authority. This imputation is justified. (9) Conclusion 125.For the above reasons, I hold that the defence of justification is established in relation to each of the 1st to 6th Imputations. ISSUE IV : WHAT RELIEF IS THE PLAINTIFF ENTITLED TO? 126.In light of my findings, this issue does not arise for my determination. CONCLUSION 127.The plaintiff's claim having failed in its entirety, I dismiss it accordingly. 128.I see no reason why costs should not follow the event. I therefore make an order nisi that the defendant shall have the costs of this action, including all the costs reserved, to be taxed if not agreed.
Representation: Mr Stephen Yam, instructed by Messrs Simon Ho & Co., for the Plaintiff Ms Teresa Wu, instructed by Messrs Poon & Cheung, for the Defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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