Omar, Zarina v. Chow Yee Ping and Another
Read the full judgment text of HCA 3699/2002 on BabelCite. This High Court CFI judgment was delivered on 24 September 2004.
1. This is a libel action between three neighbours.
Cited by 6 cases · Cites 2 cases
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HCA 3699/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 3699 OF 2002 ____________ BETWEEN
____________ Before: Hon A Cheung J in Court Dates of hearing: 20-22 July 2004 Date of judgment: 24 September 2004 _______________ J U D G M E N T _______________ Background 1.This is a libel action between three neighbours. 2.The Good Luck Mansion Co-operative Building Society, Limited (“the Society”), a society registered under the Co-operative Society Ordinance (Cap. 33) was formed in 1960 by some civil servants. The purpose of the Society was to acquire land from the Government for the purpose of erecting buildings to house members of the Society. In due course, land was acquired and three adjacent buildings, collectively known as Good Luck Mansion, were erected at Nos. 183 - 193 Sai Wan Ho Street, Shaukeiwan, Hong Kong. The buildings comprise 30 units in total. 3.Management of Good Luck Mansion is governed by the provisions in the Ordinance, the Co-operative Society Rules made under the Ordinance as well as the By-laws of the Society. Annual general meetings (“AGM”) of members of the Society have to be held on a yearly basis, whereas the day-to-day management of the buildings is in the hands of the Executive Committee for the year. The Committee comprises a Chairman, a Treasurer, a Secretary and two other members. 4.The Plaintiff, a civil servant, became a member of the Society and a “tenant” under an underlease signed with the Society in 1991, whereby she became entitled to exclusively use and occupy the 4th floor premises of No. 189, Sai Wan Ho Street, one of the six top floor units in Good Luck Mansion. 5.The Plaintiff was a member of the Executive Committee of the Society for the year 2000/2001. She was the Secretary (or “Duty Secretary”). The tenure of the Executive Committee came to an end in May 2001. An AGM (the 45th) of the members of the Society was held on 19 May 2001. In the meeting, which was attended by members representing 23 units in Good Luck Mansion, the minutes of the last AGM was approved, and so were the financial statements for the year 2000/2001. According to the draft minutes subsequently prepared by the Plaintiff as Secretary and her oral evidence, at the meeting several resolutions were passed as follows:
6.At this juncture, it should be noted that according to rules 28 and 29 of the Co-operative Society Rules (there being no contrary provisions in the By-laws of the Society),
7.The Plaintiff said in evidence that the procedural requirements under the rules were not followed in passing the resolutions in question. She said that according to her knowledge, understanding and belief, the procedural requirements had seldom been followed. In fact, this was still the case up to the last AGM that had been recently held for the current year. She explained that what happened was that in the meeting, members were free to make any proposals. If a proposal was raised, and someone objected to it, the objection would be voiced, and members would discuss the matter; if there were still people objecting to the proposal after discussion, the proposal would not be carried. However, if the proposal was raised and nobody raised any objection, the proposal would be regarded as passed; no formal voting would be involved. She said that the resolutions in question, particularly the resolution recorded in paragraph 5 of her draft minutes that has been extracted above, were “passed” in the meeting in such circumstances. She explained that in the meeting, the members had passed a resolution (in the above sense) to repair the roofs of the buildings which were badly in need of repair. Subsequently in the meeting, she raised the question of water damage to the ceiling of her top floor premises as well as an adjacent top floor premises, and she pointed out the presence of cracks in an external wall of the buildings. She suggested that repair work be done to these damaged ceilings at the same time when the roofs were repaired. Nobody objected to the suggestion, save that the members agreed that a ceiling of $400,000 should be imposed on the repair work. That was an affordable amount because the reserve fund of the Society was in excess of $400,000. In those circumstances, she regarded a resolution to repair the roofs and the ceilings as having been duly passed. Thus when she prepared the draft minutes subsequently, she put down the resolution in paragraph 5 of the draft minutes. 8.The draft minutes were co-signed by the Plaintiff as Secretary and a Mr Wong as Chairman. They were to be ratified in the next AGM (the 46th). 9.In the AGM on 19 May 2001 (which was the 45th), the members also elected a new Executive Committee (the 46th). It comprised, among others, the 1st and 2nd Defendants, who became the Secretary and Treasurer respectively of the incoming Executive Committee. 10.After the draft minutes were prepared and signed, they were sent to all members of the Society and posted on the notice boards at the lobbies of the buildings comprising Good Luck Mansion. 11.However, the new Executive Committee found the resolutions set out in the draft minutes problematic. Members of the new Executive Committee were of the view that the resolutions recorded in paragraph 4(e) and (f) of the minutes were mutually contradictory and difficult to implement. 12.More importantly, the new Committee, as per the evidence of the two Defendants as well as the contemporaneous documents, had serious reservations and doubts regarding the validity and rationale of the so-called resolution recorded in paragraph 5 of the draft minutes. Their attitude was based on a number of matters or grounds, namely that the formal voting procedure had not been followed in passing the so-called resolution, “public money” belonging to the Society was to be used to repair “private” premises (i.e. the ceilings), and the very substantial amount involved (the Society only had funds slightly exceeding $400,000 – the ceiling of the repair expenditure). The Executive Committee was particularly concerned that three of the members of the last Executive Committee, including the Chairman (Mr Wong) and the Plaintiff who co-signed the minutes recording the purported resolution, as well as two of the members of the current Executive Committee (including the 2nd Defendant) were occupants of top floor premises in Good Luck Mansion. The use of money belonging to the Society as a whole to repair the ceilings of their respective top floor premises would, so it was apprehended, give rise to possible accusations of misappropriation of public funds for personal use against not only the former Executive Committee members, but also the two current members of the Executive Committee including the 2nd Defendant, if the current Committee were to implement the so-called resolution recorded in the draft minutes. 13.According to the evidence of the two Defendants, after the minutes were prepared and circulated amongst the members of the Society, they received several complaints from members regarding whether the purported resolution had been passed and the justification for the resolution. 14.By reason of all this, the new Committee, according to the evidence of the two Defendants, thought it prudent to suspend the implementation of the purported resolution in so far as it related to the repair of the ceilings. On the other hand, as regards the repair of the roofs, the Executive Committee saw the urgency to carry out the repair (which had not been done for almost 8 or 9 years) to take advantage of the forthcoming dry season in Hong Kong. Moreover, as opposed to repairing the ceilings which would require the co-operation of the occupants of the top floor premises, the repair work to the roofs would be relatively straightforward. Yet because of their doubts regarding the validity of the purported resolution as a whole, the Committee thought it best to seek confirmation from the members of the Society by means of a questionnaire first before carrying out any work, so that any work to be done would be based on the authorization of the members, not under the so-called resolution, but the replies to the questionnaire. The questionnaire was eventually sent out after the Committee had obtained various quotations from contractors. 15.The questionnaire was accompanied by a notice (the “6th Notice”) issued by the Executive Committee to all members of the Society. As explained above, the 6th Notice only referred to the repair of the roofs. It made no mention of any repair to the ceilings. According to the correspondence and the evidence, the Plaintiff found this disagreeable because she felt that a resolution had been passed in the last AGM requiring not only the repair of the roofs, but also that of the ceilings. 16.The Plaintiff said in evidence that in fact she was the person who suggested that the ceilings should be repaired because substantial water damage had been done to the ceilings due to the lack of repair to the external wall (as well as the roofs). She thus wrote a letter dated 12 November 2001 to the Executive Committee. The letter queried the method of carrying out repair to the roofs recommended by the Executive Committee in the 6th Notice. The letter also queried why the repair work was limited to the roofs but did not cover the ceilings, as had been resolved in the last AGM. 17.By letter dated 16 November 2001, the Executive Committee gave a point-by-point reply to the Plaintiff’s queries. In particular, the Committee explained its views on the validity of the purported resolution thus:
18.Wholly dissatisfied with the reply of the Executive Committee, the Plaintiff took the matter to the Registrar of Co-operative Societies appointed under the Ordinance. By letter dated 21 November 2001, the Plaintiff set out her case before the Registrar and in particular, she questioned the Executive Committee’s refusal to fully implement the resolution that (according to her) had been duly passed in the last AGM of the Society. She invited the Registrar to intervene and resolve the dispute between the parties. The Plaintiff also notified the Executive Committee on the same day of her letter that she had written to the Registrar. 19.On 4 December 2001, the Registrar replied to the Plaintiff. Amongst other things, he pointed out that the Executive Committee had the duty to fully implement a passed resolution of an AGM of the Society; yet if the Executive Committee encountered great difficulties in implementing the resolution or if the resolution was highly controversial, it was quite open to the Executive Committee to submit the matter to the discussion and determination of the members as a whole, with a view to obtaining necessary modification or amendment of the original resolution. The Registrar urged all parties concerned to adopt a co-operative attitude to resolve the dispute. The letter was copied to the Executive Committee. By letter dated 12 December 2001, the Registrar wrote to the Chairman of the Executive Committee regarding the Plaintiff’s complaint. The letter said:
20.According to the evidence of the Defendants, although members of the Committee found the purported resolution recorded in paragraph 5 of the draft minutes doubtful and probably invalid, initially they did not find it an urgent matter requiring immediate clarification. They adopted a “low-key” approach. They felt there was no urgency. After all, the draft minutes would need to be ratified in the AGM to be held in the following year. They also received complaints from several members of the Society regarding the purported resolution. For the reasons explained above, they felt that it was only necessary to take action regarding the repair of the roofs, to take advantage of the forthcoming dry season. They therefore decided not to implement the purported resolution regarding the ceilings for the time being but to focus only on the roofs. They also had the possible costs of the repair work in mind, bearing in mind that the Society only had ready cash of slightly more than $400,000. According to the Defendants’ evidence, for fear that neighbourhood relationship would be affected, they did not find it wise to directly confront the former Chairman or the Plaintiff regarding the purported resolution, which in their view was quite unacceptable. 21.According to the evidence of the 1st Defendant, she once had a telephone conversation with Mr Wong the former Chairman, who appeared to have thought that the purported resolution had been duly passed in the AGM. However, when he was asked by the 1st Defendant how the resolution was passed (i.e. by what procedure) Mr Wong was unable to answer. This also fortified the Executive Committee’s view that the resolution had not been properly passed. 22.However, the Committee’s wish to maintain a low-key attitude towards the matter could not be achieved after the Plaintiff made her complaint first to the Executive Committee following the 6th Notice, and later to the Registrar. And when the Registrar by his letter required the Executive Committee to clarify whether the resolution had indeed been passed, they felt that they had no alternative but to bring the matter out to the open to all the members of the Society. Instead of holding an extraordinary general meeting, the Executive Committee thought it convenient and expedient to issue another notice and questionnaire instead. In those circumstances, the subject matter of the present libel action, namely the “10th Notice” of the Executive Committee circulated to all members of the Society on 14 December 2001, came into being. The libel 23.The contents of the 10th Notice should be reproduced in full:
24.Annexed to the Notice was a questionnaire. Replies were eventually received from 20 members. Their replies have been digested in a document subsequently prepared by the Executive Committee. It is useful to reproduce the same here, which sets out also the contents of the questionnaire:
25.The Plaintiff considered that the 10th Notice was libellous. According to the amended statement of claim filed in the present action, in their natural and ordinary and/or inferential meaning the words in the 10th Notice meant and were understood to mean that (para. 4):
26.The matter and dispute between the parties continued to escalate, and at one stage, the Executive Committee brought the matter to the attention of the ICAC, and eventually writ was issued on 30 September 2002. Libel action 27.In the libel action, the two Defendants are sued as members of the 46th Executive Committee which issued the 10th Notice. According to the Plaintiff, the Chairman of the Executive Committee (a Mr Tsui), an elderly gentleman, was not really aware of what was happening, and she did not want to sue him. As regards the other two members of the Committee, they had offered apologies to her, and she was prepared not to proceed further against them. 28.In this case, there is no denial by the Defendants of their publication of the 10th Notice. On the other hand, the Plaintiff has through counsel confirmed with the Court that the Plaintiff is not complaining about publication of the allegedly defamatory words to anyone other than the Society members, even though the 10th Notice was for a period of time posted on the notice boards in the lobbies of the buildings comprising Good Luck Mansion, and was copied to at least the Registrar in the subsequent correspondence. Counsel confirmed with the Court that the Plaintiff is not complaining about publication of the defamatory words to any outsiders, as it were. 29.According to the pleadings, the Defendants deny the alleged defamatory meaning pleaded by the Plaintiff against them. Alternatively, they rely on the defences of justification, fair comment and qualified privilege. Concession and pleading objection 30.It is important to note here that at the trial, Mr Chiu, counsel for the Plaintiff, accepted and conceded in no uncertain terms, both during his opening and during final submissions, that despite the denial in the pleadings, the 10th Notice was published on an occasion of qualified privilege – subject to his case on malice. He accepted, rightly so in my view, that there was an interest and indeed a duty on the part of the Executive Committee to communicate to the members of the Society the matters contained in the 10th Notice, and there was a corresponding interest on the part of the Society members to receive the 10th Notice and be made aware of the contents thereof. I have no doubt that this concession has been rightly made. It seems to me that the subject matter of the 10th Notice fell squarely within the province of management of Good Luck Mansion, and there was a corresponding duty and interest to communicate and receive the relevant information on the subject matter in question. 31.At this juncture, I should also point out this – in the pleadings, the Plaintiff has pleaded malice, but that has been done in relation to fair comment only. Thus in paragraph 12 of the amended reply, the Plaintiff through counsel has pleaded as follows:
32.What is of great importance is that malice has not been pleaded against the Defendants in relation to their defence based on qualified privilege. Mr Chiu rightly accepted in final submission that the allegation in the statement of claim that the Defendants “maliciously published” the offending words was not a sufficient pleading for express malice in the present context. Particulars of malice must be expressly and specifically pleaded: Order 82, rule 3(3), Rules of the High Court (Cap. 4). 33.Miss Fung, appearing for the Defendants, took the pleading point that the Plaintiff cannot rely on malice pleaded in paragraph 12 for the purpose of replying to the defence of fair comment, as malice in reply to the defence of qualified privilege, particularly bearing in mind that according to the latest development of the law, malice has different meanings under the two different defences: See Gatley on Libel and Slander (10th ed.) para. 12.24; Cheng v. Tse Wai Chun (2000) 3 HKCFAR 339. 34.Pausing here, it should be immediately pointed out that if this pleading objection is upheld, this must be the end of the Plaintiff’s libel action, given the Plaintiff’s concession through counsel (which has been, as I have explained, rightly made) that the (allegedly) offending defamatory words were published on an occasion of qualified privilege, which is a complete defence to a claim based on libel, unless the Plaintiff is able to prove that the words were published with “malice” (in the qualified privilege sense). As malice in that sense has not been pleaded, and given the Plaintiff’s concession, her claim must fail if the pleading objection is upheld. 35.Taking a step back, even if the Court should reject the pleading objection and allow the Plaintiff to run a case of malice in response to the defence of qualified privilege, Mr Chiu, appearing for the Plaintiff, rightly accepted that his case of malice (in respect of qualified privilege) cannot go outside the four corners of what has been pleaded in paragraph 12 of the amended reply (which pleads malice in relation to fair comment). In this regard, Mr Chiu relied on paragraph 12(f) to argue that if his client can establish that the Defendants did not hold an honest belief regarding what they said in the 10th Notice, then not only would that constitute malice in relation to fair comment, that would also constitute malice in relation to qualified privilege. Mr Chiu relied on the leading case of Horrocks v. Lowe [1975] AC 135 in support of his argument that a lack of honest belief in the truthfulness of what has been published is generally conclusive evidence of express malice: See pp. 149H to 150A (per Lord Diplock). 36.In other words, given the concession, and assuming that the Plaintiff is allowed to rely on what has been pleaded in paragraph 12 in support of a case of malice in response to the defence of qualified privilege, the Plaintiff’s claim on libel turns on a very narrow point in the sense that if what has been pleaded in paragraph 12 is not established or is not sufficient to establish a case of malice (in the qualified privilege sense), the Plaintiff’s case must fail. 37.Given the above peculiar situation of the Plaintiff’s case, and given the conclusions that I have reached in relation to the problems and hurdles facing the Plaintiff, I will be very brief with some of the issues involved in the present case. Findings of fact 38.So far as facts and evidence are concerned, having had the opportunity of hearing evidence from the Plaintiff as well as the two Defendants (and a relatively minor witness called by the Plaintiff regarding an inspection of the Plaintiff’s premises by the 1st Defendant in July 2001), I am of the view that all three antagonists were basically truthful and honest witnesses, who however were giving evidence from their respective points of view. So far as the Plaintiff is concerned, I have no doubt that she genuinely thought that the resolution in question had been duly and properly passed. She gave evidence on her knowledge, understanding and belief that the formal voting procedure laid down in the relevant legislation had rarely been followed in the meetings of the Society. She gave evidence on how normally resolutions were passed or were regarded as having been passed. She gave evidence on how this particular resolution in question was “passed” in the 45th AGM. I believe her evidence in so far as it relates to her own subjective belief and perception. However, that does not mean that I find that other members of the Society had the same understanding or perception. I will come to the evidence of the two Defendants in due course. 39.However, as I said, I have no difficulty in accepting that subjectively, the Plaintiff genuinely believed that the resolution in question had been passed. Nor, in my finding, was the Plaintiff the only person who had such a subjective understanding regarding procedure in general and the passing of the resolution in question in particular. On the evidence, it would appear that the Chairman, Mr Wong, shared the same understanding and view, at least initially. After all, he and the Plaintiff signed the draft minutes which recorded the passing of the resolution. Moreover, according to the replies to the questionnaire, at least two members thought that the resolution had been duly passed in the AGM. In the circumstances, I find that the Plaintiff did not make up the resolution, and when she recorded the resolution in the draft minutes prepared by her, she was simply setting out something that she genuinely thought had happened. No dishonesty whatsoever was involved. 40.Furthermore, in relation to the content of the resolution, i.e. repairing the roofs as well as the ceilings, I find on the evidence that the Plaintiff genuinely thought and believed that the ceilings of the top floor premises were in need of repair by reason of water seepage caused by a want of repair to the roofs and the external wall of the buildings comprising Good Luck Mansion. There was no question, so I find in terms of the subjective belief and understanding of the Plaintiff, of the Plaintiff seeking to use money belonging to the Society as a whole to “benefit” herself or her premises, or for that matter, the occupants of the other top floor premises. 41.Whether objectively speaking, the ceilings had been damaged by water seepage resulting from a lack of repair to the roofs and the external wall is quite another matter. There is insufficient evidence before the Court to enable me to come to any finding. However, that is, in my judgment, quite unimportant for the purpose of the present litigation. What is really in issue is the Plaintiff’s intention and motive. And in that regard, I have no doubt, on the evidence before me, that the Plaintiff’s intention and motive in relation to the resolution and the recording of the resolution in the draft minutes were wholly innocent and honest. There is no question of her knowingly or intentionally taking any undue advantage of her fellow members of the Society in the matter. I can understand her grievances in the present case. 42.As regards the two Defendants, I am likewise of the view, having listened carefully to their evidence in the box, that by and large they were truthful and honest witnesses, although they could have been more forthcoming in their evidence regarding what their real thoughts and views on the validity of the resolution and the motive behind the Plaintiff’s action were. 43.In my judgment, on the evidence before me, the Defendants subjectively and genuinely believed that the resolution was invalid and had not been passed. The 1st Defendant was present in the meeting throughout and she saw no voting on the so-called resolution (as has been admitted by the Plaintiff). The Defendants did not regard that a resolution, particularly a resolution as important (and unreasonable – as per their views) as the purported resolution in question, could be passed without following strictly the legal procedure. They also found, so I find, the resolution to be most unreasonable in so far as it related to expending “public” money on renovating the ceilings of individual premises of some of the members of the Society. I can fully understand their thinking and reasoning. As a matter of fact and as a matter of record (as per the draft minutes), there were no in-depth discussions on the so-called resolution and its implications. Yet, the resolution sought to authorize the expenditure of practically the entire reserve fund of the Society on repairing the roofs and the ceilings. They perceived, and I accept their evidence, a potential conflict of interest in the matter given that three of the former Executive Committee members and two of the current Executive Committee members were occupants of premises on the top floors which would (in a sense) “benefit” from the implementation of the so-called resolution. The 2nd Defendant explained in the box his fear of being accused of misappropriation of public money, particularly given that he was a civil servant. Furthermore, the Committee had received complaints from several members regarding the resolution. 44.On the evidence, I accept that the two Defendants were very concerned and alarmed by the purported resolution, in terms of both procedure and substance. 45.I also accept their evidence that initially they thought that there was no urgency relating to this aspect of the resolution and they wanted to adopt a low-key approach to the matter. Initially, confrontation with the Plaintiff was not in their mind. I also accept their evidence that they were in some sense “forced” by the development of events to bring the matter into the open and place it before the entire membership of the Society, after the issue of the 6th Notice and the complaints made by the Plaintiff. When the Registrar wrote to the Executive Committee requiring the Committee to clarify whether the resolution had been passed, they genuinely felt that they had no choice but to issue the 10th Notice and questionnaire so as to obtain the necessary clarification and report the matter to the Registrar. 46.As to why they did not see fit to contact the Plaintiff directly for clarification, I find that they did not do so because they were in fact quite certain that the resolution had not been passed, and therefore felt that it was quite unnecessary and useless to ask the Plaintiff about it, particularly when even the former Chairman (Mr Wong) could not tell the 1st Defendant over telephone how the resolution was passed. 47.On the evidence, I also find that the 10th Notice was issued by the Executive Committee (including the two Defendants) with the dominant purpose of seeking formal clarification on whether the resolution had been passed and seeking support from the members for the Executive Committee’s view that the resolution had not been passed and the repair to the ceilings should not be done. In fact, the 2nd Defendant accepted in evidence that one of the reasons for writing such a long letter or notice to the members was to lobby their support for the Executive Committee’s view that no such repair should be carried out. 48.On the evidence, I do not accept that the main purpose of writing the 10th Notice was to defame, harm or injure the Plaintiff or her reputation. That might be the result, but that was not the purpose or main purpose of writing the notice. 49.I have already mentioned that in their evidence the two Defendants could have been more straightforward on what they really thought regarding the validity of the resolution and the motive or intention of the Plaintiff. On the evidence, it is quite clear to me that when they wrote the 10th Notice, the two Defendants did not believe that the resolution had been properly passed. In other words, they thought that the resolution was an invalid one. Moreover, the two Defendants did harbour grave suspicious regarding the motive behind the Plaintiff’s insistence on the Executive Committee’s full implementation of the so-called resolution, despite all the doubts and question marks that had been raised against it. They, in my finding, genuinely believed that the Plaintiff was in fact seeking to gain some undue advantage for herself by insisting on the full and immediate implementation of the so-called resolution. 50.However, I have carefully considered whether, and in what way, their refusal or failure to frankly admit in the box what was in their minds at the time affected their credibility regarding the rest of their evidence. I have come to the firm conclusion that it did not. In a hostile and very personal litigation such as the present one, it is understandable that the two Defendants were particularly guarded in what they said in the box. Having carefully considered their demeanour and the content of their evidence in its entirety, I have come to the conclusion, as I said, that by and large they were truthful and honest witnesses. In particular, regarding the true purpose behind writing the 10th Notice and the wording used, I have reached my finding above on the entirety of the evidence, which was not restricted to what the two Defendants said in the box, but included also the documentary evidence, the objective facts and circumstances, and the inherent probabilities and improbabilities of all relevant matters. Defamatory words 51.Turning to the 10th Notice itself, I am of the view that it bears defamatory meanings against the Plaintiff, namely that the Plaintiff made up the resolution herself in the draft minutes, which had never been properly passed in the AGM; and that she knowingly and deliberately sought to benefit herself by insisting on the implementation of the invalid resolution to repair the ceiling of her own premises with money belonging to the Society. 52.I find that these meanings are defamatory. Qualified privilege 53.I now move on to deal with the all-important question of qualified privilege. 54.The rationale of the defence of qualified privilege has been succinctly explained by Lord Nicholls in the local leading case on fair comment, Cheng v Tse Wai Chun, supra. At pp. 355I to 356B, his Lordship explained the matter as follows: “The rationale of the defence of qualified privilege is the law’s recognition that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: see Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 at p.1017. Traditionally, these occasions have been described in terms of persons having a duty to perform or an interest to protect in providing the information. If, adopting the traditional formulation for convenience, a person’s dominant motive is not to perform this duty or protect this interest, he is outside the ambit of the defence. For instance, if a former employer includes defamatory statements in an employment reference with the dominant purpose of injuring the former employee, the former employer is misusing the privileged occasion and this will vitiate his defence of qualified privilege.” 55.Tse Wai Chun was a case on fair comment. The discussion on qualified privilege and the meaning of malice under qualified privilege was really for the purpose of contrasting the same with the meaning of malice in fair comment. As has been acknowledged by Lord Nicholls in Tse Wai Chun, the leading case on qualified privilege and malice under the defence of qualified privilege is the House of Lords’ decision in Horrocks v Lowe, supra. A very helpful summary of the legal principles expounded by Lord Diplock in that leading case of the House of Lords can be found in para. 16.3 of Gatley, which is extracted below:
56.A convenient summary of the law may also be found in the recent case of Lo Ki Chung v Hong Kong Nam Hoi (Sha Tau District) Association Ltd., HCA 39/2003, Poon DJ (22/7/2004), paras. 64-70. Pleading objection upheld 57.Turning to the facts of the present case, I have already pointed out the serious pleading objection to the Plaintiff’s running a case of malice in relation to the Defendant’s defence of qualified privilege. Malice has been pleaded in relation to fair comment, but not qualified privilege. Tse Wai Chun has pointed out that the same word bears different meanings under the two defences. Lord Nicholls actually advised against the continued use of the word “malice” in relation to either defence, which might give rise to confusion. His Lordship said: “It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries. I agree that if the term “malice” were used, there might be a risk of confusion. The answer lies in shunning that word altogether. Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the Defendant did not genuinely believe the opinion he expressed. Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the Defendant used the occasion for some purpose other than that for which the occasion was privileged. The direction can be elaborated in a manner appropriate to the facts and issues in the case.” (at p.361B-D) 58.Mr Chiu, in a desperate attempt to salvage his client’s case, argued that since the lack of an honest belief has been expressly pleaded in paragraph 12(f) of the amended reply (in relation to fair comment), and since the lack of an honest belief would also constitute conclusive evidence of express malice in relation to qualified privilege, the Defendants would not be prejudiced if the Plaintiff were to be allowed to run a case of malice against them in relation to their defence of qualified privilege. After all, the Defendants came to Court with the full knowledge that a case of lack of honest belief would be run against them. 59.That is an attractive argument. But I am not prepared to accept it. The two defences are quite clearly different. And the meanings of malice in relation to the two defences are also substantially different, despite some overlapping. It would be quite unfair to the Defendants to allow the Plaintiff to use what she has pleaded in relation to malice under unfair comment to establish a case of malice under qualified privilege. Whilst the lack of an honest belief might be an overlapping element in the two different meanings of malice under the two different defences, that does not necessarily mean that if the Defendants had known that malice would be alleged against them at trial in relation to their defence of qualified privilege, the conduct of their case, including their handling of the trial, must have been the same, or there was nothing they could have done to rebut the allegation of express malice. In this regard, it must be borne in mind that proof of the lack of an honest belief is not necessarily conclusive of express malice, because there can be exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue, in which case he is not malicious: Horrocks v Lowe at p.150A. On the facts of this case, I cannot rule out the possibility that this exception could apply, particularly when there might be further evidence that had not been adduced before this Court by the Defendants which they would have adduced before me had they known beforehand that a case of express malice based on the lack of an honest belief would be run against them in relation to their defence of qualified privilege. What I have said and found regarding the Defendants thus far were based only on the evidence that has actually been placed before the Court. 60.This is fatal to the Plaintiff’s action. Pleaded case of malice 61.In any event, given my findings, even if I were to allow the Plaintiff to run a case of express malice based on the lack of an honest belief in relation to the defence of qualified privilege, the Plaintiff’s case on express malice must fail. As I said, Mr Chiu, appearing for the Plaintiff, accepted that in such a situation he was bound by those matters pleaded in paragraph 12 of the amended reply in relation to his case of express malice regarding qualified privilege. I do not see how those matters could help the Plaintiff establish a case of express malice. 62.What the Plaintiff seeks to argue under paragraph 12 is that by reason of the matters pleaded as particulars under that paragraph, the Defendants must have known that what they said in the notice was untrue, and they did not therefore honestly believe in what they said. 63.Paragraph 12(a) relates to the Defendants attending the 45th AGM. The Plaintiff pleads that the Defendants effected the passing of the resolution at the meeting. I find on the evidence against that allegation. There can be no doubt that the 2nd Defendant left the meeting before the matter was discussed. As for the 1st Defendant, I accept her evidence that she did not take part in the “passing” of the resolution. In fact, even the Plaintiff accepted at trial that there was no voting and I fail to see how the 1st Defendant could be said to have “effected” the passing of the resolution. What is important in the present context of the Defendants’ honest belief is whether the 1st Defendant thought subjectively that the resolution had been passed. As I have found above, she did not. There is thus no question of her “effecting”, or effecting knowingly, the passing of the resolution – from her angle, no resolution had been passed. Paragraph 12(a) therefore does not help to fix the two Defendants with any subjective knowledge or belief that such a resolution had been passed. 64.Paragraph 12(b) refers to the “formats” of the minutes of the 45th AGM and the minutes of the 44th AGM. Mr Chiu agreed during final submission that this is a non-point in that one is not so much concerned with whether the minutes recorded who proposed the resolution and who seconded it and how it was passed; the question is whether the Defendants thought that the resolution had been duly passed. The fact that the purported resolution was recorded in the minutes in the same way or “format” as that adopted in previous years would not confer any validity on the same that it did not of its own right have. I have already found as a fact on the evidence that both Defendants subjectively believed that the resolution in question could only be lawfully passed with strict adherence to the voting procedure under the rules, and that it was not so passed. How the purported resolution was recorded in the minutes, and whether the format adopted differed from that used in the previous years, are simply quite irrelevant matters in the present context (of the Defendants’ honest belief). 65.Paragraph 12(c) refers to the Defendants not doing anything to inquire about the resolution in question until after the Plaintiff’s letter dated 12 November 2001. I have dealt with that earlier on in this judgment. I will not repeat myself here. Mr Chiu accepted in final submission that all that the Plaintiff is really saying here is that the two Defendants did not directly contact the Plaintiff for clarification. I have already dealt with this aspect of the case in the judgment above. I have already described the reasons why the Defendants did not contact the Plaintiff directly. With the benefit of hindsight, that might well have been a wise step to take. But one is not concerned with whether the Defendants had acted wisely or not. In issue is whether they had an honest belief on what they wrote in the 10th Notice. I fail to see how their failure to contact the Plaintiff directly at the time would establish or be sufficient to establish, whether by itself or in combination with the other matters pleaded in paragraph 12, the allegation that they did not honestly believe in the truthfulness of what they wrote in the 10th Notice. 66.Paragraph 12(d) refers to the inspection of the Plaintiff’s premises by the 1st Defendant in July. The 1st Defendant gave evidence that the inspection was for the purpose of the tendering process. In particular, some of the contractors suggested using heavy machineries on the roofs to carry out the repair work. It was therefore necessary to find out the state and condition of the ceilings. That through the inspection the 1st Defendant knew or should have known about the condition of the ceiling of the Plaintiff’s premises is, in my judgment, neither here nor there, in relation to whether the Defendants honestly believed in the truthfulness of what they wrote in the 10th Notice. The fact that the ceiling might be in need of repair would not mean that the resolution was validly passed or that it must be the responsibility of the Society as a whole to carry out repair to the ceiling. 67.Paragraph 12(e) essentially relies on the contents of the 10th Notice and the allegations made against the Plaintiff in the notice in order to build a case of lack of honest belief. I accept that it is quite possible, depending on the facts and evidence, to infer from the contents of the defamatory article itself that the author did not believe that what he wrote was true. However, on the facts and evidence of this case as I find them, although I am of the view that the Defendants’ criticisms of the Plaintiff in the article may not have been fully justified, and may have been unfair, I am firmly of the view that there was no lack of an honest belief on the correctness of these criticisms. In fact, quite to the contrary, I find that both Defendants genuinely believed that what they wrote were true and right. They might be wrong, unfair or bias – objectively speaking – in their views, but in my judgment, they believed in what they alleged. 68.Mr Chiu urged me in final submission to read all the particulars in paragraph 12 as a whole. I have done so. I fail to see how reading the particulars as a whole would assist the Plaintiff in establishing a case of lack of honest belief. 69.In those circumstances, even if I were to allow the case of express malice in relation to qualified privilege to be run, on the pleaded particulars of express malice, the Plaintiff’s case must fail. In any event … 70.For the reasons given above, in considering express malice, I have not considered any other matters that have not been pleaded under paragraph 12 in support of the case of malice. But simply for the sake of completeness, I would indicate that even if I were to take everything (i.e. everything in evidence) into account, including the subsequent correspondence between the parties and the development of the case (including the report to the ICAC), I still have no doubt that the Defendants held an honest belief in the truthfulness of what they wrote in the 10th Notice, and they have not misused the occasion for any purpose other than that for which the occasion was privileged. As I found above, the whole purpose of writing the 10th Notice was twofold, namely to clarify whether the resolution had been passed, and to gather support from members of the Society for the views of the Executive Committee taken in relation to the validity of the resolution and the content of the resolution itself. Those purposes were, in my judgment, fairly and squarely within the purposes for which the occasion was privileged. They related directly to the management of the building, the responsibility of which rested with the Executive Committee. Outcome 71.For all the above reasons, the Plaintiff’s claim must fail. For that reason, I need not deal with the other issues and defences raised in the present action. 72.This is a most unfortunate piece of litigation between neighbours. I certainly hope that by this judgment, an end could be put to this whole matter. In particular, I certainly hope that what has been said in the judgment will provide some vindication to the Plaintiff whose grievances, as I said, I can understand. However, I also hope that she can understand why, based on the law that I have sought to apply to the facts of the present case, her claim must fail. 73.I order that the action be dismissed. I make an order nisi that the Plaintiff pay to the Defendants the costs of the action; such costs are to be taxed if not agreed. Unless either party should apply to vary the costs order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the lapse of the 14 days period.
Mr Charles Chiu instructed by Messrs Kong & Tang for the Plaintiff Ms Carol Fung instructed by Messrs S C Chan & Co, for the 1st and 2nd Defendants |
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