Tsang Hin Mo v. Kam Kwok Wai and Another
Read the full judgment text of DCCJ 1401/2005 on BabelCite. This District Court judgment.
1. All parties in the present case resided in Wu King Estate, Tuen Mun, New Territories. The plaintiff resided in Wu Yuet House. She worked in Wu Boon House. The 1 st defendant was the chairman of the Mutual Aid Committee (MAC) of Wu Pik House. The 2 nd defendant was the chairman of the MAC of Wu Tsui House. There were grudges between the plaintiff and the 1 st defendant’s MAC.
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DCCJ 1401/2005 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1401 OF 2005 -------------------- BETWEEN
-------------------- Coram : Deputy District Judge E. Yip in Court Date of Hearing : 7th November 2006 – 10th November 2006 Date of Handing Down Decision : 24th November 2006
__________________ DECISION __________________ Introduction 1.All parties in the present case resided in Wu King Estate, Tuen Mun, New Territories. The plaintiff resided in Wu Yuet House. She worked in Wu Boon House. The 1st defendant was the chairman of the Mutual Aid Committee (MAC) of Wu Pik House. The 2nd defendant was the chairman of the MAC of Wu Tsui House. There were grudges between the plaintiff and the 1st defendant’s MAC. 2.The Wu Yuet House MAC (“the organizer”) decided to present a souvenir at its inaugurating ceremony in recognition of the past good work of the Wu Pik House MAC. However, because of grudges between the organizer and the 1st defendant’s MAC, the latter would not attend the ceremony or take the souvenir. At the ceremony, the master of ceremony called out for a representative of the Wu Pik House MAC to take the souvenir. The souvenir was in the hand of the presenting guest for 2 – 3 minutes without any response from anyone. The master of ceremony signaled the plaintiff, who was the voluntary official photographer standing nearby, to go up to the stage to take the souvenir from the presenting guest. The souvenir was an article of small value but with the name of the Wu Pik House MAC engraved. Down the stage, the plaintiff returned the souvenir to the organizer immediately. 3.Several days later, the 1st defendant heard of the matter. He convened a meeting of his MAC. It decided to write a letter to the Wu Yuet House MAC to seek an explanation as to why the plaintiff, who had not been authorized by the Wu Pik House MAC, took the souvenir on the stage for and on behalf of his MAC. It did not ask for the return, or of the whereabouts, of the souvenir, though. There was no reply. It did not ask the plaintiff herself for an explanation, for the return or of the whereabouts of the souvenir, either. 4.The Wu Pik House MAC unanimously decided to put up a notice to criticize the plaintiff for “盜用” its name to take the souvenir on the stage. It urged the residents to “聲討”the plaintiff. Notices to this effect were put up at conspicuous locations in the estate. 5.The plaintiff caused explanations to be given to the defendants, who then removed the notices. She demanded for an apology but the defendants refused. 6.The plaintiff took out the present proceedings for libel. The defendants said that the words were not defamatory and, in any event, the plaintiff’s conduct justified the use of the words. Issues for this Court 7.There is no dispute that the notices in question were published and referred to the plaintiff. I have to determine other issues as follows:
Evidence called by the plaintiff 8.There are 3 witnesses: the plaintiff herself, Yu Nui Fong (Madam Yu), and Chung Shui Hing (Madam Chung). 9.The plaintiff has been residing in the same estate for 24 years, though in different blocks. She last settled in Wu Yuet House. Many residents knew her. She is and was the assistant of District Councillor Mr. Leung Kin Man, for 16 years. Mr. Leung’s office was also in the same estate. She helped to organize and participated in many community functions. 10.On 28 November 2004, in the inaugurating ceremony of the organizer at the football pitch of the estate, she was the voluntary official photographer. At the ceremony, souvenirs in the form of framed certificates, themselves of a nominal monetary value, were presented to organizations or committees. There came a time when the master of ceremony, Madam Yu, called out for the Wu Pik House MAC to go up to the stage to take the souvenir. Nobody responded to the call. The presenting guest stood there. The ceremony became a standstill for 2 – 3 minutes. Madam Yu signaled the plaintiff to go to the stage to take the souvenir to put an end to the embarrassment. From Madam Yu’s and the plaintiff’s experience, such situation happened very often and somebody ad hoc would have to take the souvenir down the stage without the intention to use anyone’s name. On such an understanding, the plaintiff took the souvenir on the stage and handed it back to the Wu Yuet House MAC down the stage immediately. The ceremony went on. 11.On 6 December 2004, the chairman of the Wu Yuet House MAC told the plaintiff that the Wu Pik House MAC had written a letter to the effect that the latter had not sent any representative to participate in the ceremony. 12.On 25 January 2005, when the plaintiff returned home, she saw a notice with the heading “Solemn Declaration” displayed on the notice board at the Wu Pik House ground floor lift lobby. The paper was 1 by 2 feet and the fonts were large. It stated that she had “盜用”the name of the Wu Pik House MAC to take the souvenir on the stage in the ceremony. She regarded it as defamatory and was annoyed. 13.On 29 January 2005, she found another notice to the same effect on the notice board of the Wu Tsui House ground floor lift lobby. She was very aggrieved. She complained to the chairman of the Wu Yuet House MAC and the 2nd defendant. The 2nd defendant admitted putting it up there. 14.On 29 January 2005, she reported the matter to the police, and the Housing Department office in the estate. In the housing office, she saw a pile of notices bearing the official chop of the housing office. As a matter of procedure, all notices ready to be put up had first to be submitted to the housing office for approval and chopping. The notices bore the same contents as the 2 said notices. She requested the housing office to stop the distribution. The housing office acceded to her request. 15.On 30 January 2005, the notice at Wu Tsui House was removed. It was because the Wu Yuet House MAC had issued a notice to the residents in Wu Tsui House, among others, in the estate to the effect that it was the organizer who, in accordance with the usual practice of societies, instructed the plaintiff to go up to the stage to take the souvenir because nobody would take the souvenir. 16.On 1 February 2005, she wrote a letter to the 2 defendants requiring them to publish an apology. They refused to do so. 17.On 3 February 2005, the notice at Wu Yuet House disappeared. There was another notice put up to allege that someone had stolen the said notice. Several days later, a copy of the said notice was also put up on the notice board again. 18.After the Chinese New Year, the plaintiff’s boss, Mr. Leung, tried to persuade the Wu Pik House MAC to remove the said notice. The latter refused to do so. The plaintiff’s solicitors issued a letter to the MACs of Wu Pik House and Wu Yuet House to demand them to publish an apology. They refused to do so. 19.On 11 March 2005, the copy of the said notice was removed from the notice board in Wu Pik House. It had been there for 1½ months. 20.She was of the view that the publication of the notice at Wu Yuet House and Wu Pik House caused her neighbours and friends to think that she had stolen the souvenir and ask her what happened. This had caused her great distress and embarrassment. Madam Chung gives evidence that upon reading the notice as put up, she thought that the plaintiff had done something serious involving theft, deception, misappropriation or piracy. The plaintiff was upset. Evidence called by the 1st defendant 21.The 1st defendant gives evidence. Lam Shun Lan (Madam Lam) is both his and the 2nd defendant’s joint witness. He was the chairman of the Wu Pik House MAC. Some days before the ceremony of 28 November 2004, the Wu Yuet House MAC informed his MAC that the latter would be presented with a souvenir. According to his written statement, his MAC was on a pre-organized trip to the Mainland China on the same date. So it did not attend the ceremony. According to his evidence in court, as there were previous grudges between the 2 MACs, his MAC decided to boycott the ceremony. In any event, his MAC declined to attend the ceremony or authorize anyone to take the souvenir. 22.Some days after the ceremony, Madam Lam told him that the plaintiff had taken the souvenir after his MAC’s name was called. 23.On 6 December 2004, he wrote to the Wu Yuet House MAC to enquire about the matter. He did not ask for the return or of the whereabouts of the souvenir. No reply came. 24.On 25 January 2005, his MAC held a meeting to discuss the matter. It was unanimously decided that a notice would be put up to criticize the plaintiff’s conduct so that his MAC’s name would not be used without proper authorization. As a result, a notice [B2 p.10A] was put up on the Wu Pik House notice board at the ground floor lift lobby. 25.On 10 March 2005, his MAC received a declaration from the Wu Yuet House MAC. It explained that it was the latter who asked the plaintiff to collect the souvenir. In light of this declaration, his MAC removed the notice. 26.Because of previous grudges between his MAC and the plaintiff, he or his MAC had not ever contacted the plaintiff directly or indirectly for an explanation before the notice was put up. He and his MAC had no intention to rely on the notice to suggest or be interpreted to mean that the plaintiff had misappropriated something from his MAC or was guilty of theft or deception. Evidence called by the 2nd defendant 27.The 2nd defendant gives evidence. Madam Lam is both his and the 1st defendant’s joint witness. He was the chairman of the Wu Tsui House MAC. Some days after the ceremony, Madam Lam told him that the plaintiff had taken the souvenir after the 1st defendant’s MAC’s name was called. Some time before the notice was put up on the notice board in the Wu Tsui House ground floor lift lobby, the 1st defendant had approached him to see if the Wu Tsui House MAC would agree to put it up. The Wu Tsui House MAC held a meeting and decided to put it up there. One day after his putting it up, the plaintiff phoned him up to explain. After the phone conversation, he removed the notice. This Court’s findings 28.The natural and ordinary meaning in which the words would be understood by reasonable men to whom they were published Lord Reid in Lewis v Daily Telegraph (1964) AC 233 said, at 258: Sometimes it is not necessary to go beyond the words themselves, as where the claimant has been called a thief and murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. 29.Bokhary PJ in Next Magazine Publishing Ltd v Oriental Daily Publisher [2000] 2 HKLRD 33 quoted the observations of Lord Bridge of Harwich for the “two principles which are basic to the law of libel” as follows: The first is that, where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the “natural and ordinary meaning” to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is too well established to require citation of authority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it. 30.The plaintiff’s case is that the term “盜用” carried the ordinary and natural meaning of a deliberate misappropriation of the name of the Wu Pik House MAC. It also denoted theft or deception. The defendant’s case is that the term simply carried the meaning of a usurpation of the name but did not denote theft or deception. 31.In my judgment, the term could and did carry the ordinary and natural meaning of a deliberate misappropriation. Most importantly, it also denoted dishonesty, trickery, and depravity. Whether it was in this context that the defendants used it 32.It is plain that the defendants had used the term in its ordinary and natural meaning. I do not see how the term can be construed otherwise. Whether it is an imputation to the plaintiff’s discredit, or which tended to lower her in the estimation of others 33.Even if the term only carried the meaning, as suggested by the defence, of usurpation of the name, I find it an imputation to the plaintiff’s credit, or tended to lower her in the estimation of others. This term simpliciter described the plaintiff as a person who did an act without being authorized. It was a criticism of an unbecoming conduct. In fact, I find the term also denoted, and was used to denote, dishonesty, trickery, and depravity. It was a serious imputation. On this basis, I find the notices defamatory. Whether the defence of justification can be set up 34.The donor has the right to revoke a gift which has not been perfected. After the call for the 1st defendant’s MAC to take the souvenir, the organizer decided to revoke the souvenir. The revocation was by the conduct of the master of ceremony, who represented the organizer, in instructing the plaintiff to go up to take the gift. The plaintiff took it for and on behalf of the organizer, as demonstrated by her return of it to the organizer down the stage immediately. 35.The souvenir came from and was returned to the organizer. The plaintiff’s and Madam Yu’s is evidence that, speaking from their experience in holding similar functions, such an arrangement was usually an ad hoc one without intention to use the name of the invitee. The defence do not challenge such etiquette. In the context of a 2- or 3-minute standstill, this does not seem to deviate from what I regard as proper etiquette in a civilized society. I cannot see any intention on the part of the plaintiff to use the 1st defendant’s MAC’s name. In any event, her act had not a scintilla of dishonesty, trickery or depravity. 36.It is obvious that the 1st defendant did not consider the criticism justified. Otherwise he would not have removed the notice upon the organizer’s declaration that the plaintiff was in fact so instructed by the organizer. 37.I find the defence of justification failed. The quantum of damages, if applicable 38.The plaintiff has been residing for 24 years and working for 16 years in the estate. She has been an active participant in its social functions. A lot of residents know her. She tried to seek an apology from the defendants but to no avail. She now claims general damages. 39.Because of previous grudges between the 1st defendant and the plaintiff, the 1st defendant did not ever contact her for explanation before putting up the notice. Neither the 1st nor the 2nd defendant made any or any proper inquiries, either. The 1st defendant put up the notice for 1½ months. The 2nd defendant put up the notice for 1 day. Each notice was put up at a conspicuous location. The paper and the fonts were large. 40.The plaintiff had a substantial reputation which was tarnished by the 1st and the 2nd defendants’ acts on the basis that she had not used the name of the 1st defendant’s MAC in any manner. As a result of the defamation, she suffered distress and embarrassment. I award general damages of $30,000 in the case of the 1st defendant, and $3,000 in the case of the 2nd defendant. 41.I make an order nisi for the defendants to pay the plaintiff’s costs. This order shall become absolute 14 days after today. Dated this 24 November 2006
The Plaintiff: represented by Mr. Lawrence Lo of Messrs. Lawrence K.Y. Lo & Co., Solicitors. The Defendants: represented by Mr. Jonathan Man of Messrs. Ho, Tse, Wai & Co., Solicitors. |