Lee Man Kin v. Wang Mei Chun and Others
Read the full judgment text of HCA 2876/2003 on BabelCite. This High Court CFI judgment was delivered on 19 August 2005.
1. This is a defamation action brought by a solicitor against some of his neighbours. The plaintiff lives in Tower 2 of Island Harbourview. He used to be a member of the Residential Owners’ Sub-Committee of this development (“the Sub-Committee”) for the year of 2003. He had been elected by the owners of Tower 2 to this Sub-Committee pursuant to the Deed of Mutual Covenant of this development (the DMC”). This action arose out of the disputes of the members of the Sub-Committee which also invo
Cited by 8 cases · Cites 2 cases
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HCA 2876/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2876 OF 2003 ____________ BETWEEN
____________ Before: Deputy High Court Judge L Chan in Court Date of Hearing: 15, 16, 17, 18, 21 March and 9 April 2005 Date of Judgment: 19 August 2005 _______________ J U D G M E N T _______________ 1.This is a defamation action brought by a solicitor against some of his neighbours. The plaintiff lives in Tower 2 of Island Harbourview. He used to be a member of the Residential Owners’ Sub-Committee of this development (“the Sub-Committee”) for the year of 2003. He had been elected by the owners of Tower 2 to this Sub-Committee pursuant to the Deed of Mutual Covenant of this development (the DMC”). This action arose out of the disputes of the members of the Sub-Committee which also involved some other residents. Background 2.The DMC provided that the owners of each residential block should elect a representative of the block and these representatives should elect 9 of their number to form the Sub-Committee. Section G, clause 1(c) of the DMC further provided that the function of the Sub-Committee was to discuss issues relating to the common areas and facilities relating to the residential development. Unfortunately, there were rival factions within the Sub-Committee. They had at times argued over matters that would appear to others to be frivolous. The 1st defendant criticised the chairperson of the Residential Owners’ Sub-committee 3.In the latter part of April 2003, the plaintiff received several letters written by some owners including the 1st defendant. Two of these letters dated 17 April 2003 had the same content. One of them was signed by the 1st defendant and the other was signed by a Mr Chan of Tower 5. These two letters criticised the chairperson Madam Lau Ying Chi over her conduct of the meeting held on 27 March 2003 and the style of the minutes of that meeting. The other three letters criticised the style of the minutes because all the petty arguments between the opposing factions were recorded. All these letters say that the minutes should be neat and precise and should not set out in detail the petty arguments between the different factions. The letter signed by the 1st defendant and Mr. Chan of Tower 5 also criticised Madam Lau of misusing the minutes to twist the true picture so as to show that she was responding to the arguments of one Madam Tsang Chun Lan, the secretary of the Sub-Committee. 4.Four of these letters including the one signed by the 1st defendant were addressed to each and every member of the Sub-Committee including the plaintiff. However, none of the letters made any mention of the plaintiff. Though the plaintiff was not mentioned in the five letters, he however saw it necessary to reply to at least the 1st defendant to set forth the picture according to his view. The 1st defendant lived in Tower 10. The plaintiff insisted on inserting his reply letter into the letterbox of the 1st defendant 5.In the evening of 7 May 2003, the plaintiff handed his reply letter to the staff of MTR, which was managing Island Harbourview, for delivery to the 1st defendant. However, on the next day, his letter was returned to him marked “refused to accept”. Thus, the 1st defendant’s attitude on his sending her a letter was known to him on 8 May 2003. Such an attitude might or might not be justified, but he should have known that it was not a matter that he could insist. 6.Instead of letting the matter end there, the plaintiff in the evening of 14 May 2003 went to Tower 10 with a view to deliver his letter to the 1st defendant again. He pressed the intercom and told the 1st defendant that he was the representative of Tower 2 and he was going to insert into her letterbox his letter which had been returned and marked “refused to accept”. However, the 1st defendant said that he was annoying her by writing her a reply letter. The 1st defendant further said that he had no right to put anything into her letterbox, as he was not the postman. This was in fact legally correct according to section 6 of the Post Office Ordinance, Cap. 92. He however thought that the 1st defendant was being unreasonable. He challenged her on his right to reply to her letter of 17 April 2003, which contained unilateral assertions, as her letter was addressed to him as a member of the Sub-Committee. They then had an intense argument and the atmosphere was tense. 7.In the course of their argument, a female staff of the MTR stationed in Tower 10 came over and suggested to the plaintiff that the letter could be sent through her to the 1st defendant. He declined the suggestion because the MTR staff had previously failed to deliver the letter. He insisted on inserting his letter into the 1st defendant’s letterbox despite attempts by the female staff of the MTR to stop him from doing so. In the end, his insistence prevailed over the physical intervention of the MTR staff and he succeeded in putting his letter into the 1st defendant’s letterbox. 8.When he was on the way out, he heard the 1st defendant talking to the female staff of the MTR over another intercom in the lobby saying that she would pursue the plaintiff if he should insert his letter into her letterbox as she considered it a nuisance. He immediately said loudly to the intercom that he would also regard her letter to members of the Sub-Committee a nuisance. He also told her through the intercom “如果你要攪大件事，我會奉陪到底” which means in translation “if you would like to make a big fuss about this, I will take you on to the finish”. 9.The 1st defendant’s case is slightly different. She said in her witness statement that the plaintiff had talked to her on her intercom on 7 May 2003 and told her that he would put a letter into her letterbox to reply her earlier letter. She declined to talk to him, but on the next day, she found a letter from Lee Man Kin in her letterbox. She therefore returned it to the plaintiff through the MTR staff. However, in the evening of 14 May 2003, the plaintiff pressed her intercom again wanting to speak to her. He also asked her to go downstairs but she declined as she was busily cooking dinner. He then said that he was the representative of Tower 2 and would insert a letter into her letterbox. She told him not to do so as only the postman could deliver letters. He replied that as she had sent him a letter first, she should therefore accept his reply. She however insisted that as her letter was despatched via the management office, he could only send his reply in the same way. In the end, his act prevailed over the physical intervention of the MTR staff and he inserted his letter into her letterbox. The MTR staff later told her that he had asked the staff to convey to her the message that “如果她(即汪女士)要跟他鬥，他會奉陪到底” which means in translation “if she wants to fight against him, he will take her on to the finish”. The meaning of this statement is quite close to that of the statement admitted by the plaintiff. 10.Whichever was the correct version, the 1st defendant was incensed. There is little doubt that he had thereby thrown down the gauntlet. If the 1st defendant should take that seriously, he should expect that she might take it up. Unfortunately, she did. 11.On whether the plaintiff had personally inserted his letter into the box of the 1st defendant on 7 May, I prefer the version of the plaintiff as the MTR has in a letter dated 11 July 2003 confirmed that he had on 7 May requested the building attendant of Tower 10 to deliver a letter to the 1st defendant at Tower 2. The 1st defendant might have mistaken the MTR attendant as the plaintiff as she only communicated with this person via the intercom. 12.At the trial, the 1st defendant further said that in the conversation over the intercom, the plaintiff had also told her that he was annoyed by her letter to him and he would be suing her and would send her a solicitor’s letter. She also said that the plaintiff had threatened her by a colloquial statement that he would “同我玩到底” which means in translation that he would “struggle with me to the finish”. The meaning of this statement is quite close to that of the one in her witness statement and the one admitted to by the plaintiff, but this statement has a stronger feel of vulgarity. I do not think the plaintiff has uttered this statement. I accept that the statement made by the plaintiff was either the one as admitted by him or the one as contained in the 1st defendant’s witness statement. If the plaintiff should have made the statement as alleged by the 1st defendant at the trial, I do not see why the 1st defendant would have repeated a different one in her witness statement. 13.On the allegation that the plaintiff had threatened her by saying that he would send her a solicitor’s letter because he was annoyed by her letter, I also accept the plaintiff’s evidence that he had not made such statement. The letter by the 1st defendant to him did not create anything actionable and I do not think the plaintiff as a solicitor would have failed to understand this. If there was nothing actionable, I do not think the plaintiff would have made such an empty threat. 14.There is also the allegation that the plaintiff had asked the 1st defendant to go downstairs to see him. I again accept the plaintiff’s evidence that he had not said so. It was not necessary for him to meet the 1st defendant. Whatever he wanted to tell her was in his letter of reply. He in fact intended to send the letter through the management office on the earlier occasion on 7 May without his going to her block. 15.I have heard the plaintiff giving evidence and I find him a truthful witness. He was frank to admit that he was in the wrong when he insisted on inserting his letter into the 1st defendant’s letterbox. I do not believe the evidence of the 1st defendant whenever she was at variance with the plaintiff. She was capable of making accusations in a casual manner. 16.The plaintiff was also frank to admit at the trial that he was very angry over the 1st defendant’s reaction to him through the intercom in the evening of 14 May. He thought that the 1st defendant was being unreasonable in refusing to accept his reply letter as she had first written to him in his capacity of a member of the Sub-Committee. However, when he went home afterwards, he realized that it was wrong for him to have insisted on inserting his letter into the 1st defendant’s letterbox. But he did not consider making amends to the 1st defendant. Alas, his attitude at the trial was the same. The Meeting on 15 May 2003 17.The Sub-Committee was to meet in the evening of 15 May 2003. The plaintiff had a fever and could not be there on time. He said in evidence that he suspected the 1st defendant would go there to make false accusations against him, he therefore rushed there as soon as he was discharged from the hospital intending to rebut the false accusations. Thus, instead of trying to make amends to the 1st defendant, he intended to continue to clash with her. This storm in a teacup between the plaintiff and the 1st defendant then developed into a bigger dimension and involved more people. In fact, it was not just a clash between the plaintiff and the 1st defendant over the 1st defendant’s letter of 17th April and the plaintiff’s reply of 7 May. It appeared that there was a vendetta between two groups of people each comprised some members of the Sub-Committee of 2003 and some other residents. 18.I have already referred to a Madam Tsang Chun Lan, who was the secretary of the Sub-Committee for 2003. Though she is not a party to this action, she and another member Mr Lam Ping Man have featured repeatedly during the trial. They were also present in the meeting on 15 May 2003. They together with some residents formed one faction. The chairperson Madam Lau, the plaintiff and some other members and residents formed another faction. The bad blood between these two factions was there before the meeting on 15 May. 19.Though the 1st defendant has tried to distance herself from Madam Tsang, the secretary, there is however sufficient evidence showing that she had been acting in concert or in collaboration with Madam Tsang and others to go against Madam Lau’s faction and expressing opinion in favour Tsang and against Lau. 20.I have referred to the 5 letters received by the plaintiff in the latter half of April 2003 which were critical of Madam Lau’s conduct of the meeting on 27 March 2003 or the style of the minutes of the meeting. Apart from the two identical letters signed by the 1st defendant and a Mr Chan of Tower 5, two of the remaining three letters were written by the 5th defendant and the 6th defendant. 21.In addition, the 1st defendant had also signed a letter addressed to the Sub-Committee making 5 complaints on misconduct of the residents when using the facilities of the clubhouse. The letter said that the signatory had by herself and through Madam Tsang complained against the misconduct to the management office. This letter was undated but was issued before 4 April as it requested for a discussion of the problems in the tea gathering to be held on that day. Exact copies of the same letter have been signed by the 5th defendant, the 6th defendant and two other owners. 22.When she was cross-examined, she initially said that she had not heard of Madam Tsang’s name before the meeting of 15 May. Later she changed her position and admitted that she knew Madam Tsang but was not familiar with her. 23.As expected by the plaintiff, the 1st defendant had indeed gone to the Sub-Committee meeting on 15 May. She was there at about the beginning of the meeting and before the plaintiff had arrived. She complained to the Sub-Committee about the visit by the plaintiff on the previous day and his insertion of a letter into her letterbox against her will. The conduct of the meeting including her complaint was recorded. The audio recording and the transcript of the meeting showed that she in fact made a scene there. It was obvious that she had taken up the plaintiff’s gauntlet. She went to the meeting to take revenge for what he had done in the previous evening. She went there to ridicule and embarrass him. Her noisy complaint was echoed by Madam Tsang and Mr Lam Ping Man. This was an unfortunate development. The subject matter of the 1st complaint-against the 1st defendant 24.The plaintiff said that parts of what she said on this occasion as set out below were defamatory of him and he sought damages and aggravated damages for the same. The following is taken from the transcript of the audio recording with the parts complained by the plaintiff underlined and followed by the certified translation: -
The meeting continued 25.The 1st defendant did not leave the meeting after she had made the scene in the absence of the plaintiff. She remained there. After the plaintiff had arrived, she demanded the Sub-Committee to deal with her complaint in his presence. If the plaintiff should have openly acknowledged his mistake in inserting his letter into her letterbox and apologized to the 1st defendant for his conduct and his provocative statement, the 1st defendant would have no more cause to carry on with the battle. If she should continue disrupting the meeting, she would be doing so without any excuse. If she should choose to be unruly, the chairperson could certainly adjourn or abort the meeting. Once the meeting was aborted, there would be no more occasion for her to scream and yell. 26.However, not only did the plaintiff express no regret to the 1st defendant, he further told the meeting that he had a personal dispute with the 1st defendant and invited the members of the Sub-Committee to vote on whether the meeting should deal with such personal dispute or instead to carry on with the discussion on matters of the estate. He also mildly persuaded the members to vote against a discussion of the complaint by reminding the members of their role as members of the Sub-committee. He was of course correct that it was a personal dispute, but he could try to resolve it amicably. Instead, he tried to keep the lid on her anger. Eventually, five persons voted. Madam Tsang and Mr. Lam were in favour of discussing the complaint and the other three other persons including the chairperson Madam Lau were against it. The transcript showed that Madam Tsang and Mr. Lam were all the times on the side of the 1st defendant. Their votes were obviously motivated by factional loyalty. 27.However, the voting result could not have stopped the 1st defendant. The situation then became a rumpus with people from different sides shouting incessantly against each other. Shortly after the voting, the plaintiff, who was then very excited, stood up and walked in quick paces to the 1st defendant and thrust two letters at her lap. These were her letters to him as a member of the Sub-Committee. She complained loudly against his thrusting of letters at her. He replied loudly that he would not accept her letters as she had declined his. She told him that he should have returned them through the management office. At this time, a manager of the MTR told them to calm down. But the rumpus continued. The efforts of the MTR staff to pacify the situation were futile. The plaintiff and the 1st defendant were shouting at each other. The 1st defendant became hysterical and she was orchestrated by those in her faction. Some other residents joined the battle of words. The chairperson was also shouting at the top of her voice that the meeting should continue to discuss matters on the agenda. She was echoed by the plaintiff. However, any person with good sense would have known that the situation did not permit the meeting to continue fruitfully. Everybody save the MTR staff was shouting and yelling. There was simply chaos. 28.After a while, the plaintiff asked one Mr. Cheung, the manager of the MTR, to bring in some security guards to control the situation and remove the 1st defendant. At that time, the 1st defendant said that she wanted to make a report to the police as she had been intimidated. Everybody then continued with the quarrel. The 1st defendant then left the meeting room, but she continued to let loose her frenzy outside the room. Despite the repeated persuasion of Mr. Cheung of MTR, the chairperson Madam Lau refused to stop the meeting. It was after further demands made by other people for adjournment that Madam Lau adjourned the meeting. The meeting resumed on 26 May 2003 and proceeded to conclusion without any untoward event. The subject matter of the 2nd complaint-against the 1st to 6th defendants 29.However, on about 21 June 2003, the owners of the estate received a letter jointly signed by the 1st to 6th defendants which the plaintiff found libellous. The contents of the letter and its certified translation are as follows with the parts subject to complaint underlined:
Natural or ordinary meaning 30.There is no dispute that the 1st defendant uttered her words under complaint shortly after the start of the meeting on 15 May 2003 and she did so in the presence of the members of the Sub-committee and some other residents though in the absence of the plaintiff. There is also no dispute that her words referred to the plaintiff. Regarding the letter, there is also no dispute about its publication and that it referred to the plaintiff. The argument is on whether the 1st defendant’s words and the contents of the letter are defamatory of the plaintiff, if so, whether the defendants can rely on justification or fair comment or alternatively qualified privilege. 31.The first matter to decide is the natural or ordinary meaning of the words in question. Gatley on Libel and Slander, 10th ed. at paras. 3-15 and 3-16 says that:
32.Diplock L.J. has also said in Slim v. Daily Telegraph [1968] 2 Q.B.157 at 175:
The grounds of the 1st complaint 33.I firstly deal with the words uttered by the 1st defendant at the meeting and in the absence of the plaintiff. The gist of what she said was that the plaintiff, claiming to be the representative of Tower 2, had wanted to give her a letter of reply which she declined. He asked to see her at her lobby downstairs which she also declined. He then insisted on inserting the letter of reply into her letterbox instead of serving it on her through the management office. He did so against her firm objection and the intervention of the management office. He also threatened her with litigation over the nuisance caused by her sending him a letter. He also threatened her that he would “play” with her till the end. She then described such conduct of his as lawless and would like to report the matter to the police as she was frightened. When the chairperson said that the plaintiff was a lawyer, she said that even a lawyer could not have behaved like that as he had knowingly broken the law. She further said that the plaintiff had caused her nuisance for more than once as he had previously pressed her intercom asking to see her. She did not make this complaint in a cool and calm manner. She was bawling. That was probably because she had been provoked by his insistence on inserting the letter into her letterbox and his provocative statement that “if you would like to make a big fuss about this, I will take you on to the finish” or “if she wants to fight against him, he will take her on to the finish”. 34.The plaintiff complained that the natural or ordinary meaning of her words meant and were understood to mean the following: -
The 1st defendant’s defence to the 1st complaint 35.The 1st defendant denied that her words could have the meanings ascribed by the plaintiff. She said they had other meanings and those meanings were true. Alternatively, if her words could have the meanings ascribed by the plaintiff, such were in the circumstances true. She thus relied on justification on both the meanings ascribed by the plaintiff and by her. The meanings she gave to her words are as follows: -
36.The plaintiff indeed had no right to insist on seeing her for serving a letter on her or to insert the letter into her letterbox. I have already held that the plaintiff did not say that he would play with her till the end. However, I do not find such a statement defamatory in the context of what she said as it merely suggested that he would persist in the battle with her. Even if he should have said that, that does not mean that such was a lawless behaviour or that he had knowingly broken the law. When she said that he had knowingly broken the law, I do not think she was referring to a breach of section 6 of the Post Office Ordinance, Cap. 92 though she had mentioned that he was not the postman. I also do not think that she was referring to his breach of the DMC or his ignoring of a notice by the MTR dated 2 May 2003 asking people not to create nuisance by pressing the intercom of others. The context of her angry statements suggested that she was referring to a much more serious lawlessness which would warrant the intervention of the police. She was comparing the plaintiff’s conduct with that of the triad though she did not say that he was a member of such society. She was telling the meeting that he had acted like a scoundrel and that was conduct unbecoming to a block representative and a member of the Sub-Committee. 37.Regarding her assertion that he had caused nuisance to her twice as he had previously asked to meet her either by pressing her intercom or by a request made through the management office, I do not find that this amounted to his bullying her, but I do find this an allegation of his disturbing her by repeatedly asking her to come downstairs to meet him at the lobby. I have already found that there was no previous visit, her assertion would thus be an erroneous one though it did not suggest anything particularly unpleasant about the previous visit. There is also no evidence that the management staff at the lobby had tried to stop him from using the intercom to contact her. The sting is that he had approached her again despite knowing that he was not welcome. He thus disturbed her. This is an allegation of conduct unbecoming to a block representative and a member of the Sub-Committee. 38.Her words however did not suggest that he had on numerous occasions deliberately and/or deviously caused disturbance to her or that he had committed the offences under the Crimes Ordinance, the Societies Ordinance or the Theft Ordinance as pleaded in the amended statement of claim. Though I have found that he had not threatened her with a solicitors’ letter and thus her allegation that he had said so was wrong, I still do not think that her allegation had conveyed the meaning that he had wrongfully taken advantage of and/or manipulated and/or abused his profession as a lawyer and his legal knowledge. She did not say that he had uttered anything to suggest that he as a solicitor would take advantage of his position to her prejudice. A mere suggestion of resorting to lawyers to resolve a dispute is not, without more, defamatory. She also did not refer to him as a solicitor out of her own initiative. She only retorted the chairperson when the latter raised his occupation to defend him. 39.Since I have found that the 1st defendant had by her words conveyed to the meeting that the plaintiff had behaved in a lawless manner which would warrant the intervention of the police, that he had acted like a scoundrel or a triad member and such conduct was unbecoming to a block representative and a member of the Sub-Committee, I therefore conclude that the 1st defendant had slandered the plaintiff. 40.I also hold that the plaintiff does not need to prove special damage because he has been disparaged in his office of a block representative and a member of the Sub-Committee. I refer to section 23 of the Defamation Ordinance, Cap. 21 which provides as follows:
41.The plaintiff had acted as a block representative and a member of the Sub-committee when he replied to the 1st defendant’s letter. Her letter addressed to all members of the Sub-committee. He had also identified himself as such when he talked to her over the intercom. When the 1st defendant made her complaint to the meeting, she referred to him as the representative of block 2.
42.The 1st defendant relied on justification and section 26 of the Defamation Ordinance, which provides as follows:
43.She made the defamatory utterance to the meeting because of the plaintiff’s conduct at the lobby of her block in the pervious evening. The incident arose because the plaintiff wanted to serve her with a reply to her letter which was addressed to all members of the Sub-committee including the plaintiff. The plaintiff was no doubt in the wrong when he insisted on inserting his reply letter into her letterbox against her objection and the physical intervention of the management staff. She was also incensed when the plaintiff said “if you would like to make a big fuss about this, I will take you on to the finish” or “if she wants to fight against him, he will take her on to the finish”. However, she had written to the members of the Sub-committee and criticized the conduct of the chairperson and it was not unreasonable for the plaintiff, as a member of the Sub-Committee, to give her a reply. She should expect that the plaintiff or some other addressees might reply to her. Her objection was that he should have served the reply through the management staff. He did not take that route as he had tried it on 7 May and it did not work out. Therefore, he insisted on serving the reply by inserting it into her letterbox. She on the other hand might not have been aware that he had tried to serve the letter through the management staff on 7 May as she thought that he had approached her personally on 7 May and served the reply by himself on the same occasion. 44.Even though the plaintiff was wrong in inserting his reply into her letterbox against her objection and the intervention of the management staff and it was also wrong for him to have made the provocative statement, I still do not think it justified or true to say that he had behaved in a lawless manner warranting the intervention of the police or that he had acted like a scoundrel or a triad member. Though his provocative statement amounted to throwing down the gauntlet, that could not have justified her maligning him that he had knowingly broken the law. I have already dealt with section 6 of the Post Office Ordinance, the DMC and the notice of 2 May issued by the MTR and would not repeat them here. I thus hold that the 1st defendant cannot rely on justification for her verbal statements to the meeting.
45.On qualified privilege, the 1st defendant pleaded that she intended to propose a discussion on the misuse of the intercom and letterboxes installed at the entrance and lobby of each block and also the conduct of the plaintiff as a block representative. She further pleaded that her proposal was accepted and there was indeed such a discussion on the date, time and circumstances of the misuse of the facilities. She therefore concluded that the Sub-committee and owners had an interest in hearing her and she had an interest in communicating the matter to them. 46.The following excerpts from Gatley on Libel and Slander are relevant:
47.Section G, clause 1(c) of the DMC further provided that the function of the Sub-Committee was to discuss issues relating to the common areas and facilities relating to the residential development. It was not an organ to receive and deal with complaints by one owner against another. Unlike the management committee of a corporation incorporated under the Building Management Ordinance, Cap. 344, it had no power to manage the common areas and common facilities or to enforce the provisions of the DMC. It also had no power to investigate or punish infringement of the DMC. The jurisdiction of the Sub-Committee is very limited. If there should be any alleged infringement of the DMC, it was for the management office to deal with. 48.Though the plaintiff approached the 1st defendant in the capacity of a representative of block 2 and perhaps also as a member of the Sub-Committee, the dispute between them was nonetheless a personal dispute and a private matter. He only wanted to serve his reply to her letter of criticisms of the chairperson, he was not doing so as a representative of the Sub-Committee and the reply was not by the Sub-Committee. In the course of their exchange, he uttered a provocative statement, but again he did not do so as a representative of the Sub-Committee. Her objection was on his mode of service of his reply and his provocative statement. The gist of her complaint was his personal conduct or conduct as a block representative. He was elected a block representative by the owners of his block and appointed into the Sub-Committee by all block representatives, not by the Sub-Committee itself. The Sub-Committee had no power over his personal conduct or conduct as a block representative. It had no power to expel or reprimand him. It had no jurisdiction and thus no duty or interest to receive such complaint. The mere fact that she had ventilated her complaint to the Sub-Committee in meeting and the chairperson had asked her several questions in relation to her complaint would not thereby convert the occasion into one of qualified privilege if it was otherwise not such an occasion. 49.If she should feel aggrieved, she could have reported the matter to the management office or the police. I do not see why she had a duty to the Sub-committee to make the complaint to it as it had no jurisdiction to handle such complaint. I am of the view that she did not owe the Sub-Committee any duty to report matters that did not relate to its function. I also cannot comprehend what interest she might have in making the complaint to the Sub-Committee. If she should have sufficient interest to make the complaint to the Sub-Committee, she would likewise have sufficient interest to make the same complaint to all other owners of the estate. On this matter, the Sub-Committee is not in any different position from the other owners. 50.For the same reasons, I take the view that the Sub-Committee had no duty or interest to receive her complaint. The 1st defendant thus failed in her defence of qualified privilege in relation to the first complaint.
51.If the plaintiff can prove that the defendant has misused the occasion for a dominant improper purpose like injuring the plaintiff, or the defendant did not believe what he published was true or published matter recklessly, without considering or caring whether it be true or not, then the privilege will be displaced (see Gatley on Libel and Slander, para. 16.3). 52.Evenif I should be wrong in holding that the occasion was not subject to qualified privilege, I take the view that the 1st defendant could not be so protected because she was actuated by malice in uttering the statements. I havefound that she was capable of making accusations in a casual manner. She wrongly said that the plaintiff had asked her to go downstairs to meet him when he had not said so. She also invented the allegation that he had threatened to sue her with a solicitor’s letter though I do not think that such was defamatory. She had also coloured his provocative statement by giving it an added touch of vulgarity. Though the plaintiff had wrongfully insisted on inserting a letter into her letter box and made a provocative statement, that does not mean that such was lawless behaviour comparable to that of a triad member or that he had knowingly broken the law and had acted like a scoundrel. These were clearly the 1st defendant’s exaggerations. She deliberately made these exaggerations to embarrass and ridicule the plaintiff, because she had taken up his gauntlet and wanted to trounce him. That was why she did not leave the meeting after having made her vehement complaint, but waited there for his arrival and made a further scene. If she was there merely to make a complaint against the plaintiff, there was no reason for her to become hysterical when the meeting voted not to discuss her complaint. I find that she did not honestly believe in her exaggerations. There was no basis for such belief. For this reason, I hold that she cannot rely on the defence of qualified privilege.
53.The 1st defendant further pleaded an alternative defence of fair comments on matters of public interest. She relied on Section 27 of the Defamation Ordinance: -
54.The elements of this defence are summarized in para. 12.2 of Gatley on Libel and Slander:
55.The 1st defendant characterised her comments as made on the misuse of the facilities in the resident common areas and the conduct of a block representative which were matters of public interest. I accept her statements that the plaintiff had acted in a lawless way comparable to that of a triad member or that he had knowingly broken the law and had acted like a scoundrel are comments. However, some of the relevant facts upon which the comments were made were false. They were her claims that he had made a threatening statement and he had tried to contact her for the second time despite knowing that he was unwelcome. I think his statement was provocative but not threatening. But this is also a matter of comment. In any case, I would not say that this claim is so wrong that it alone can defeat this defence. There is also the plaintiff’s insistence on inserting his reply into her letterbox which is of core importance. 56.The plaintiff was not pressing the intercom in the estate indiscriminately. He pressed the 1st defendant’s intercom to tell her that he was giving a reply to her letter. If it was an argument over the contents of her letter or his reply, then it would be a matter of public interest, but the argument was only on his wrongful insistence on inserting his reply into her letterbox. The reply was not made on behalf of the Sub-committee. But for the fact that he was a representative of block 2 and he went to see the 1st defendant in this capacity, the incident would have been nothing more than a quarrel between neighbours on how a letter from one to the other should be sent. The making of the provocative statement was just a continuation of this quarrel. However, the plaintiff delivered the letter as a representative of block 2 and his conduct as such representative was a matter open to public scrutiny. Hence, she can argue for the protection of fair comment (see Gatley on Libel and Slander, para. 12.29). 57.However, this defence can again be defeated by malice. If the plaintiff can prove that the defendant did not believe what he published was true or published matter recklessly, without considering or caring whether it be true or not, then the privilege will be displaced. But the defendant can use the occasion for a dominant improper purpose or can be motivated by spite or ill will like injuring the plaintiff, such will not displace the protection (see Gatley on Libel and Slander, para. 12.24). 58.I am of the view that the 1st defendant did not make the comments honestly. I repeat my finding of malice for qualified privilege. I do not believe that she had honestly held the opinion that the plaintiff had behaved in a lawless way which was comparable to that of a triad member or that he had knowingly broken the law and had acted like a scoundrel. There was no basis for such belief. She deliberately made these exaggerations to hurt him. She therefore fails in this defence too. I will deal with the issue of damages below. The grounds of the 2nd complaint 59.Regarding the letter to all owners, the plaintiff complained that the natural or ordinary meaning of the parts as underlined above were understood to mean the following: -
The 1st to 6th defendants’ defence to the 2nd complaint 60.The defendants used to be represented by the same firm of solicitors until shortly before the trial when the 2nd to 6th defendants changed their representation. However, the amended defence of the 2nd to 6th defendants was the same as the 1st defendant’s save the issue of publication. The 2nd to 6th defendants had by amending their defence sought to deny publication of the letter. That amendment was done without leave and the plaintiff had at the beginning of the trial verbally applied for it to be struck out. This argument was resolved in the course of the trial when these defendants withdrew their denial and admitted publication of the letter. 61.I would also mention that only the 1st and 3rd defendants have given evidence for the defendants on the second complaint. The 3rd defendant is the husband of the 2nd defendant and the 2nd, 3rd and 4th defendants were present at the meeting on 15 May at least from the time when the Sub-Committee voted on whether to discuss the 1st defendant’s complaint. 62.The defendants denied that the words in the letter as underlined bore the meanings ascribed by the plaintiff. Alternatively, if these words could have the meanings ascribed, such were in the circumstances true. They further said that these words had other meanings which were true. They thus relied on justification for the meanings ascribed by the plaintiff those they themselves ascribed. The meanings they ascribed to these words are: -
63.The letter clearly said that the plaintiff in his position as the representative of block 2 had for unknown reasons unilaterally responded to the 1st defendant’s letter and did so in a vigorous way. It suggested that he should have discussed the matter in the Sub-Committee before reacting. It further suggested that such conduct of a representative was improper and he should not have done so. 64.It also said that the plaintiff had on many occasions (which is different from the numerous occasions as put by the plaintiff or the more than one occasion as put by the defendants) went to the lobby of the 1st defendant’s block, pressed her intercom and inflicted her with verbal provocation despite the attempt of the security staff to stop him, and such conduct had caused unnecessary nuisance to the 1st defendant who was extremely annoyed. 65.The letter then said that he had joined the chairperson of the Sub-Committee to say that the complaint of the 1st defendant was a personal matter and refused to discuss it at the meeting. Such conduct was dictatorial and autocratic and not in line with the spirit that a block representative should have which should be unbiased and should bear the owners’ interest in mind. However, this part of the letter seems to target at the chairperson’s handling of the matter rather than the plaintiff’s conduct. It only referred to the chairperson joining hands with the plaintiff to say that it was a personal matter. The rest was about the chairperson. I would not take it to be a reference to the plaintiff. 66.It further said that the plaintiff had dashed from his seat towards the 1st defendant in an agitated manner and did an act, but fortunately was stopped by the manager of the management office who asked him to calm down. This sudden act of the plaintiff frightened the 1st defendant who had to leave the meeting room in the company of a staff of the management. This certainly meant that the plaintiff had done an act to the 1st defendant causing her to apprehend immediate and unlawful personal violence. The letter than said that despite having behaved as such, the plaintiff was not apologetic and blamed those who differed from him. 67.These meanings are too plain to require interpretation. They are defamatory of the plaintiff. This is so despite the end of the letter contains a request to the management company to give an account of the incident and to set the record straight. The request for a true account from the management does not thereby take the sting out of the defamatory meanings.
68.The defendants rely on justification and section 26 of the Defamation Ordinance. I will not repeat the event of the evening of 14 May. I have also described that how the personalities had behaved in the meeting. The content of the plaintiff’s reply letter to the 1st defendant was couched in reasonable terms. It did not contain intense arguments. The plaintiff only expressed his views as a member of the Sub-Committee who had witnessed the conduct of the chairperson which had been criticized by the 1st defendant. It was not a vigorous reply. I cannot see anything improper for the plaintiff to issue such a reply letter before the matter was discussed by the Sub-Committee. The letter said that the plaintiff had, for some unknown reason and before the matter was discussed by the Sub-Committee, unilaterally reacted to the 1st defendant’s letter in a vigorous way and such conduct was improper. This statement was untrue. 69.The plaintiff had only gone to the 1st defendant’s block once on 14 May. He inserted the letter against the intervention of the management staff and made the provocative statement on that occasion. His conduct on that occasion no doubt caused the 1st defendant distress. But he had not repeated the misconduct. In fact, when he arrived home in the same evening, he was aware that it was wrong for him to have so conducted himself though he did not apologize for the misconduct. However, the statement in the letter said that he had so misconducted himself on many occasions despite the intervention of the management was not true. The expression “many occasions” is a gross exaggeration and untrue. It is different from the colloquial and rhetoric expression of “every time” in Eastern Express Publisher Ltd. & Another v Mo Man Ching & Another (1992) 2 HKCFAR264 at 271E to 272B. 70.On the quick approach by the plaintiff to the 1st defendant, the plaintiff at that time was very angry. He wanted to return to the 1st defendant all her letters as she did not want to accept his. The dialogue in the audiotape revealed that he did this in the heat of the moment. He had admitted in evidence that he had walked in a quick pace towards the 1st defendant. 71.The 3rd defendant said in his witness statement that the plaintiff and the 1st defendant had been separated by uniform security guards. But the defendants’ letter did not say so. The 1st defendant also did not say so whether in her witness statements or her oral testimony. The audiotape and transcript also suggest that there was no uniform security guard at the scene, otherwise the plaintiff would not have repeatedly asked for security guards to be made available. I therefore do not accept the 3rd defendant’s evidence on this. In fact, I am of the view that the audiotape has captured most of the audible happenings at the meeting and is a reliable contemporaneous record of what happened. 72.Taking everything into consideration, I do not think it wrong or unreasonable to say that the plaintiff had dashed from his seat towards the 1st defendant in an agitated manner. It was also not wrong to say that he had done an act to the 1st defendant if it referred to the thrusting of letters. But it was wrong to say that he had been stopped by the manager. The audiotape showed that after he had thrust the letters back to the 1st defendant, the manager had indeed asked him to calm down because he was agitated. But he had not done anything that had caused any apprehension in the manager that he was about to do anything harm to the 1st defendant and the manager had not stopped him from doing anything. The 1st defendant was also not frightened either. The audiotape showed that she carried on with the quarrel vigorously after the letters were returned to her. It was only after a while and when the plaintiff asked for security guards to keep her under control or remove her from the meeting room that she said she wanted to make a report to the police for having been intimidated. I do not think she had really apprehended any fear of threat or immediate personal violence. She was merely responding to the plaintiff’s call for security guard to remove her. Thus, these statements taken together have conveyed an incorrect picture that he had assaulted her or caused her to apprehend immediate and unlawful personal violence and still blamed those who took a different view of things from him. 73.Since these statements were untrue, the defendants cannot rely on justification. I would consider their other defences.
74.On qualified privilege, they rely on the meanings they ascribed to their words in the letter. They further pleaded that the chairperson had, contrary to the requirements in the DMC, failed to include a record of the debate over the 1st defendant’s complaint without just cause. It was thus in the public interest of all owners of the estate for them to be made aware about the discussion and debate of the Sub-Committee in the meeting. 75.I have already held above that the 1st defendant did not have any duty or interest to make her complaint to the Sub-Committee and the Sub-Committee also had no duty or interest to receive her complaint. Logically, the chairperson should also have no duty or interest to report to the owners that the 1st defendant had tried to make her complaint to the Sub-Committee as it was something outside its jurisdiction. However, the incident about the 1st defendant’s attempt to make her complaint which resulted in chaos and adjournment of the meeting is something the owners were entitled to know. They have sufficient interest to know how the proceedings of the Sub-Committee were conducted as the Sub-Committee’s function was to discussion their common areas and common facilities. As a result of the plaintiff’s communication between the plaintiff and the management company, the official minutes which were distributed to all the owners did not mention about this incident at all. Since the 1st to 4th defendants were present in the meeting and witnessed what happened, I think they had sufficient interest and moral and social duty to report the incident to all the other owners. The 5th and 6th defendants were also owners. If they thought that they knew about the incident, they would have the same duty and interest to make it known to the other owners. Qualified privilege thus applied to the defendants’ letter.
76.It is important to bear in mind that the six defendants each had an independent privilege and the malice of one should not infect the others. If I should find that the defendants made the defamatory statements without an honest belief that they were true or recklessly not caring whether they were true, they would be actuated by malice. 77.I have already pointed out that there were a number of factual inaccuracies in the defendants’ letter. For the 1st defendant, I find that she signed the letter for it to be circulated to all owners so as to push on with her war against the plaintiff. I also find that she either did not honestly believe in the defamatory statements in the letter or she signed it recklessly without considering or caring whether those statements were true or not. She had no reason to believe that the defamatory statements were true. 78.For the 3rd defendant who gave evidence, his counsel has pointed out that his behaviour in a tea gathering of owners on 4 July 2003 showed that he was not associated with the faction of Madam Tsang, Mr. Lam and the 1st defendant. However, that was at a much later stage from the meeting on 15 May or 21 June when the plaintiff received the letter. His behaviour in the meeting certainly showed that he was on the side of the 1st defendant and he was not calm or cool throughout. If he was indeed neutral and had cared to read the letter before signing it, I do not think he would have honestly endorsed the defamatory statements. There is no evidence that he had even read the plaintiff’s reply to the 1st defendant. Without knowing the content of the letter, he would not have honestly endorsed the statements that the plaintiff had, for some unknown reason and before the matter was discussed by the Sub-Committee, unilaterally reacted to the 1st defendant’s letter in a vigorous way and such conduct was improper. If he had indeed enquired with the management on the plaintiff’s visit to the 1st defendant’s block on 14 May, as he had said so in evidence, he would have known that the plaintiff had only done it once and not on many occasions. I have also disbelieved him on the presence of security guards at the meeting and I have also found that the 1st defendant had not been intimidated by the plaintiff at the meeting. I therefore find that when he signed the letter, he was aware of the exaggerations and inaccuracies which he did not believe in or he signed it recklessly without considering or caring whether there was any untrue statement. 79.Regarding the 2nd, 4th, 5th and 6th defendants, they have not given any evidence. There is thus no explanation on why they would have endorsed their signatures on the letter which contained the defamatory errors. I find that they have either signed the letter with full knowledge of the existence of these erroneous statements which they did not honestly believe in or they have done so recklessly not caring whether there was any untrue statement. 80.On the basis of the above findings, the 1st to 6th defendants cannot rely on the defence of qualified privilege.
81.The defendants also rely on section 27 of the Defamation Ordinance. The factual errors in the letter would prevent the defence of fair comment from being invoked. I have also considered section 27 and am of the view that the expression of opinion in the letter, if they are indeed opinion, which I doubt, is unfair. Quantum 82.The plaintiff seeks damages as well as aggravated damages. There is no pleading of any special damages. I follow the principle reaffirmed by the Court of Appeal in Cheung Ng Sheong Steven v. Eastern Publisher Limited, Civil Appeal No. 198 of 1994. The damages awarded should be compensatory and designed to assuage the plaintiff’s hurt feelings and loss of dignity. They should also be such as to provide a vindication of his character. However, they should not be calculated on the basis of punishing the defendants.
83.I deal with the slander by the 1st defendant first. She uttered the statements in the meeting which was attended by 25 persons as shown in the minutes. A few persons could have come late and did not hear her statements, but that would not make a significant difference to the award. 84.The 1st defendant’s behaviour was not unprovoked. I do not overlook the fact that she had written to the members of the Sub-committee first. However, the plaintiff had no right to insist on serving his reply in a way that she found objectionable. The plaintiff had further inflamed the situation by making the provocative statement. Though she had referred to his conduct as lawless and accused him of having knowingly broken the law, she only referred to what he did in the visit to the lobby of her block and his provocative statement. She did not accuse him of having dishonestly. She did not refer to him as a solicitor out of her own volition. Having regard to the transient nature of the publication and the small audience, I assess the general damages for this slander at $4,000.
85.On the libel by all the defendants, counsel for the plaintiff relied on Kan Chung Nin Tony v Li Kwong Ming [1987] 1 HKC 487. The plaintiff and the defendant in that case lived in the same housing estate. They had a residents association. The plaintiff was the honorary life president and the defendant was the chairman of the executive committee. The members of the committee differed in opinion and some including the defendant resigned. The plaintiff was a candidate in a District Board election. Two days before the election, the defendant circulated a letter to the 300 members of the association and posted it up on three notice boards in the estate. The letter made allegations against the plaintiff personally and a group of members which impliedly included the plaintiff. The letter referred to the plaintiff by name and as a solicitor. It alleged that he had been removed from a position with a public body. It also alleged that he had broken promises and discussed matters of the association with newspapers which adversely affected the association’s reputation. It also alleged that he together with others had exploited the association for their political interests. 86.Master Woolley assessed the damages pursuant to an interlocutory judgment. He held that the seriousness of the libel laid in the attack on the plaintiff’s integrity as a person in a position of trust. There was also an intention to damage his professional reputation by identifying him as a solicitor. Though the libel was published in a fairly limited geographical area to a restricted group of people, it was published among the plaintiff’s neighbours and his reputation must have been severely tarnished in the minds of at least some of them. The plaintiff also suffered considerable embarrassment. Furthermore, the timing of the libel was also significant. The letter was distributed two days before District Board election. Though he was elected, the number of votes for him was probably diminished as a result of the libel. The defendant did not make any apology or retraction of the allegations. The timing was maliciously calculated to do maximum harm to his prospects in the election. Master Woolley awarded the plaintiff $65,000. 87.That was indeed a devious and calculated move by the defendant to hurt the plaintiff by damaging his integrity as a holder of an office and as a solicitor. The attack was apparently targeted at his prospects in the election. This mischievous attack sought to interfere with the District Board election. 88.In the present case, there is no evidence that the defendants had any ulterior motive in issuing the letter. It does not attack the plaintiff’s honesty as a solicitor. It does not even mention his profession though such must have been known to at least some of the neighbours who were acquainted with him. The matters described in the letter are not wholly fictitious. The plaintiff did behave in an agitated manner in the meeting and he did approach the 1st defendant in a quick manner and thrust at her 2 letters. The alleged assault and the other statements about his replying to the 1st defendant’s letter without prior discussion of the Sub-Committee and his having been to the lobby of the 1st defendant’s block and caused her distress on many occasions are, taken as a whole, less serious than the libel against Mr. Kan Chung Nin. Even if the plaintiff should consider that the letter suggested a technical assault by him on the 1st defendant, that is not an allegation of a serious criminal offence and is less serious than an allegation against the integrity of a person in a position of trust. 89.On the extent of circulation, though there is no evidence of the exact number of households in the estate, but it is certainly a lot more than 300. There are 10 blocks of flats in the estate and there should be no less than 2,000 flats. 90.Counsel for the plaintiff suggested that the starting point should be the Kan Chung Nin case and I should apply a 5% increase for each year to account for the inflation since 1987 when that case was decided. That would give a sum of $126,750. Counsel further submitted that this case is more serious than the Kan Chung Nin case. After referring to Ming Kee Manufacturing Ltd. v Man Shing Electrical Manufactory Ltd. [1992] 2 HKLR 357 in which an award of $50,000 was made for a libel by a competitor to potential customers, counsel submitted a sum of $300,000 should be awarded. 91.The case of Robert Hung Yuen Chan v Hong Kong Standard Newspapers Ltd & Ors [1996] 4 HKC 519 has also been referred to in the plaintiff’s opening. In this case, the plaintiff, a wholly innocent solicitor, was defamed by a newspaper out of the blue. He was awarded $700,000. I do not that case is an appropriate comparison. 92.I have already said that the libel in this case is less serious than that in Kan Chung Nin. On the suggestion of 5% increase per annum for inflation, I also note that Hong Kong has suffered from signification deflation in the last few years. All in all and bearing in mind that it was the plaintiff’s conduct that had triggered off the incident leading to the libel, I think an award of $15,000 against each defendant is a fair one and I so order. Aggravated damages 93.The plaintiff seeks aggravated damages on the grounds that the defendants have failed to tender an apology, persisted in the pleas of justification and making unfounded allegations against the plaintiff. Regarding the 1st defendant, she had repeated her libel to the Law Society. The Law Society is a professional body which would investigate allegations of misconduct of its members. I do not think I should make any judgment on the complaint made to the Society as I do not want to affect their proceedings, if any. The 2nd, 4th, 5th and 6th defendants have not given evidence, but I do not think their positions are any different from that of the 1st and 3rd defendants. The 3rd defendant was in fact giving evidence for them as well. 94.There is no doubt that the defendants have not apologized to the plaintiff for the wrongs they had done to him. There is however also no apology from the plaintiff to the 1st defendant for his wrong to her. There is still no dressing on her wound. It was the plaintiff’s unambiguous attitude even at the trial that he would not apologize to the 1st defendant for what he did at the lobby of her block on 14 May. The plaintiff is an intellectual and an accomplished professional. The 1st defendant is a housewife who does not understand English. Even if the 1st defendant should have been unreasonable in insisting on delivery of his reply letter by the management office, I cannot understand why the plaintiff could not have sufficient tolerance to live with that. I cannot see why he should have made the provocative statement which can easily be misinterpreted to be a threat to silence the 1st defendant. 95.The 1st defendant was no doubt unreasonable as she had made use of a minor incident to create a big scene. The plaintiff however had more than one opportunity to pacify this tempest in a teapot. If he did not insist on inserting the letter into her letterbox but agreed to let the management office deliver it for him, nothing would have happened. If after inserting the letter, he did not make the provocative statement, the 1st defendant might not have gone to the meeting to malign him. She might have just asked the management office to return the letter to him in its pristine condition and the matter would have ended there. If the matter should continue to the meeting, a sincere apology by the plaintiff would have put the matter to an end. The 1st defendant would have no more cause to continue with her noisy misbehaviour. But alas, he was not prepared to make amends, he was prepared to fight. He allowed his anger to take charge. He anticipated that she would go to the meeting to fight with him. He was prepared for it. He did not apologize, he told the meeting that it was a personal dispute which should not take up the time of the meeting. It was indeed a personal dispute, but it was handled badly. He not only lost many opportunities to end the dispute; he was also responsible for triggering it off. 96.The factions in the Sub-Committee used to be at loggerheads. Their dispute in fact spilled into the trial. The trial was just a continuation of that sorry saga. The hostility remained. In these circumstances, I do not think the plaintiff is entitled to any aggravated damages. I lament that the good intentions of many neighbours sitting together to work for the common good should become such a fiasco. Costs 97.For the same reasons, I make an order nisi that there be no order as to costs.
Mr. Lawrence Ng instructed by Messrs Peter Wong & Partners for the Plaintiff Mr. Henry Ma instructed by Messrs Wong & Poon for the 1st defendant Mr. Yip Wing San Roy Bowie instructed by Messrs Ko & Chow for the 2nd to 6th defendants | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment