Kwok Lai Kwan v. Ma Gun Fat
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DCCJ 1088 /2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1088 OF 2006 -------------------- BETWEEN
-------------------- Coram: Deputy District Judge W. C. Li in Court Date of Trial: 27th February 2007 Date of Handing Down Judgment: 16th March 2007 ______________________ J U D G M E N T ______________________ 1.The Plaintiff claimed the Defendant for (1) an injunction to restrain the Defendant whether by himself, his servants, agents or otherwise from further publishing or causing to be published or distributed words defamatory of the Plaintiff; (2) an apology in writing; (3) damages in libel to be assessed; (4) exemplary damages to be assessed; (5) interest; and (6) costs of this action. 2.The Plaintiff was at the material times a nurse employed by the Hospital Authority, an owner of Flat 2103, 21st Floor, Block A, Westlands Garden, 4 Westlands Road, Quarry Bay, Hong Kong (Westlands Gardens to be referred in short as “the Building”), and a member of the 14th Management Committee of the Incorporated Owners of Westlands Gardens (“the Incorporated Owners”). 3.The Defendant was at the material times an occupier of Flat 3, 11th Floor, Block A of the Building. 4.On 15 July 2005, the Defendant wrote, printed and published by posting up copies of a notice in Chinese (“the Notice”) measuring about 12 inches by 16 inches in large Chinese characters addressed to the owners and residents of the Building, containing (inter alia) the following words in Chinese: “…… A座那位明明就係郭XX小姐委員，怎會這麼快會變成王太？真係不可思議唔通你們各位委員都學曉「變面大法」，這樣你們又可大事吹噓一番，說三道四，胡說八道，指鹿為馬，唉！這種做媒的方法似乎是太污糟邋遢，太卑鄙。一次不忠，百次不容。” 5.Literally, the Chinese words in the Notice says “…That person from Block A is clearly Miss Kwok XX , Committee Member, how is it so quickly she changed into Mrs. Wong? It is truly incredulous, is it really that you committee members all have learned “the trick of changing faces”, this way you all can also make an exaggeration, say this and that, talk nonsense, call a stag to be a horse, ay (sigh)! This kind of matchmaking method seems to be too dirty, sordid, too unscrupulous. Being dishonest/disloyal once, there’s no room for accomodation again”. 6.The Plaintiff in suing for libel must show that the words in the Notice were defamatory, that it could reasonably be understood to refer to the Plaintiff and that it had been published to a third party or third parties. The test for a statement being defamatory is that it tends to lower the Plaintiff in the estimation of right thinking members of society generally (Sim v Stretch (1936) 2 ALL ER 1237) or which exposed her to hatred, contempt or ridicule (Parmitter v Coupland (1840) 6 M&W 103). The allegation in the Notice appeared to suggest that the person referred to as Miss Kwok XX of Block A, a committee member, with all the other committee members, had probably learned the art or trick of changing faces or identities, and had swiftly transformed herself into a Mrs. Wong, and used a dirty matchmaking method to exaggerate, make nonsensical speeches, distort the picture/fact that was obvious, and once being dishonest or disloyal, must not be accomodated again. The statement in the Notice is quite nonsensical. It does not refer to any particular event and the words, “committee member” (“委員”) did not specify what committee it was referring to and there was nothing in the Notice to suggest a hint or clue as to what committee it was. It was difficult to discern what it actually meant. However, it does suggest that a person called Miss Kwok being a committee member together with all the other committee members, were using some face or identity changing trick to make exaggeration, talk nonsense and to distort an obvious picture of a stag and to call it a horse. It suggested that once being dishonest or disloyal, these committee members should not be tolerated again. The question is whether there is an imputation here which is defamatory, i.e. that it would tend to lower the person called Miss Kwok XX in the estimation of right thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally. The imputation here seems to be one of an allegation of changing identity with the intent to exaggerate, talk nonsense, and to distort “a picture that was obvious”. It further suggested that once there was dishonesty or disloyalty, the person/s must not be tolerated again. These were words that appeared to be insulting and were not defamatory. It was obvious to a reader of this Notice that the writer was scolding and insulting a person called Miss Kwok XX and other than that I do not think it would lower a person in the estimation of others. 7.The Plaintiff testified that an old neighbour, Mrs. Leung Lee Yee Fong, met her in February 2006 and told the Plaintiff that she thought the Notice had described the Plaintiff to be a woman of loose moral, just like a prostitute. The Plaintiff’s argument was that the Notice contained words like “Miss Kwok XX had quickly become Mrs. Wong” (“那位……郭XX小姐委員…..這麼快會變成王太？”) and “the committee members including her were in the dirty act of matchmaking and once dishonest/disloyal, there’s no room for toleration again” (“這種做媒的方法似乎是太污糟邋遢，太卑鄙。一次不忠，百次不容。”), and these words coupled with the true innuendo that she was an immoral or infidel woman were defamatory. It was not in issue that the Plaintiff was in fact married and her husband was surnamed Wong. The Plaintiff also testified that on the night of 15 July 2005, she herself took the Notice and showed and read it to the owners/residents present in a meeting. It appeared that the Plaintiff had identified herself to the Notice. The Defence argued that the Plaintiff was taking the wordings in the Notice out of context and there was no innuendo of alleging loose moral or infidelity. What the Plaintiff’s friends might regard was not quite relevant to the issue of whether the Notice was defamatory as the Notice must be judged by the standard of right thinking members of society generally, not just the Plaintiff’s friends (Byrne v Deane (1937) 1KB 818). In Hartt v Newspaper Publishing (1989) The Times 9 November, the Court of Appeal in England held that the approach to adopt was that of the hypothetical ordinary reader who was neither naïve nor unduly suspicious but who might read between the lines and be capable of loose thinking. Taking the whole statement in the Notice, there was no allegation of loose moral, infidelity or unchastity. Words or phrases like “quickly changed into Mrs. Wong” (這麼快會變成王太), “matchmaking” (做媒) and once dishonest/disloyal, not to be trusted again” (一次不忠，百次不容) used in Chinese and when read on its own are capable of various different meanings, and could not be read to mean what the Plaintiff argued it meant. In other words, these words as understood by persons of ordinary intelligence would not by itself convey an imputation of unchastity. Reading the whole statement of the Notice, it certainly did not mean nor suggest anything other than that Ms. Kwok XX and the committee members were exaggerating, talking nonsense and were distorting facts that were obvious, and that they should not be tolerated. 8.The Notice referred to Miss Kwok XX of Block A, a Committee Member. Although the full name was not published, it was sufficiently clear that the Notice was referring to a lady committee member living in Block A surnamed Kwok. The Notice was put up in conspicuous areas like the corridors and lobbies of the 6 blocks of the Building. The people who read the Notice were the Kaifongs or residents of the 6 blocks of residential flats in the Building. The Defendant as disclosed in his Defence had meant the Notice to refer to the Management Committee and not to the Plaintiff. However, the Defendant’s intention is not relevant to the issue. The important thing is not what the Defendant intended but whether the residents and people in the Building especially those who knew the Plaintiff who read this Notice could reasonably have understood it to refer to the Plaintiff. “The test of whether words that do not specifically name the Claimant refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the Claimant to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the Claimant is not named in words, he may, nevertheless, be described so as to be recognized and whether that description takes the form of a word-picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the Plaintiff was referred to, that is sufficient reference to him” (per Issac J. in David Syme v Canavan (1918) 25 C.L.R. 234 at 238) It was not in issue that at the relevant time, the Plaintiff was a member of the Incorporated Owners’ Management Committee of the Building. It was also a fact that the Plaintiff’s husband was surnamed Wong, and the Plaintiff lived in Block A. Although the Defendant and his witness, Madam Wong Wan Ping, both testified that they did not know at the time that the Plaintiff’s husband was surnamed Wong, that did not alter the fact that the Kaifongs or residents of the Building knew the Plaintiff to be Miss Kwok otherwise known as Mrs. Wong, she was a committee member of the Incorporated Owners, and she resided in Block A. The words “committee member/s” in the Notice however did not expressly refer to the committee of Incorporated Owners of the Building. The crucial question therefore is whether the Defendant’s Notice had sufficiently identified the Plaintiff and the people who read the Notice had reasonably understood it to refer to the Plaintiff. The people and the residents of the Building who read the Notice did not need to know all the circumstances and relevant facts of this case. It will be a question of degree how far the evidence in this case had gone to identify the Plaintiff. I think the key factor here lies with the term “committee member” (委員) as there were no sufficient information to make any identification from the name and address. Miss Kwok XX of Block A was neither nor there. When the words, “committee member” did not state what committee it was or of which body, then one has to read the whole Notice to see if it gives any clue as to what the Notice was about. In fact, the whole Notice looked nonsensical when read by a person of reasonable understanding. It contained nothing that implied that it had anything to do with the Incorporated Owners’ Committee. On the top of the Notice, it was addressed to the “the residents and owners” of the Building. This however would not suggest that the committee referred to in the Notice was the Incorporated Owners Committee. Without the name of the Plaintiff, a proper address and the name of the committee of which the subject person was a committee member, it would be too vague, and even when taken and read as a whole, it could not be reasonably inferred and understood by the residents and kaifongs of the Building or any one who had read the Notice to reasonably believe that the Notice had referred to the Plaintiff. 9.According to the Plaintiff, the Notice was posted up “all over the place” in lifts, lift lobbies, and the corridors of the 6 residential blocks of the Building. The Defendant claimed that he only put up 1 or 2 copies at each block. Part of the Plaintiff’s knowledge came from the caretaker who was taking these Notices down at about 4.00 p.m. on 15 July 2005 when the Plaintiff was returning home after from her work. The Defendant also contended that the Notice was posted up only for about 2 hours when they were removed by the caretakers. The Plaintiff saw more than two copies of this Notice at Block A where she resided and also saw the same Notice in the other areas of the Building. There was no doubt the Notice had been published to a third party or third parties. 10.The Defendant’s case was that in the minutes of an Incorporated Owners’ meeting of the Building on 24 June 2005, the Plaintiff, being a committee member and appearing under her own name of “Kwok Lai Kwan” in the record of those present in the meeting, was referred to as “Mrs. Wong of A2103” in the minutes to be one of those who had spoken about the experience of been stranded in the lift. The Defendant emphasized the importance of this record in the minutes of this meeting. The background of the case was that there was two opposing groups of owners and a vote would be taken for or against renovating the lifts in the Building. A previous meeting about 3 weeks before had seen the opposing group of which the Defendant was supporting defeated this motion. However a special meeting was called again to vote on the motion. The Defendant’s view was that the minutes of the meeting on 24/6/05 would affect the votes and it would be misleading and unfair to give the impression that the Plaintiff and Mrs. Wong were two different persons and that two incidents had occurred, one to a committee member Miss Kwok, and another to a resident called Mrs. Wong, whereby people were stranded in the lifts. I could see the importance and need for accuracy in the minutes of the Incorporated Owners’ meeting on 24/6/05 in that it must not be misleading and be worded in any way to mislead and influence the result of the imminent voting. The minutes were certified correct and signed by the chairman and vice chairman of the Incorporated Owners Committee. It was careless of the committee members of the Incorporated Owners to use different names to describe the same person who also happened to be a member on their committee. However, it was a fact that the Plaintiff was also known as Mrs. Wong. There was no evidence that the use of different names to refer to the same person was a deliberate act calculated to mislead and influence the votes. What the Defendant needed to do was to write and point out this unsatisfactory use of different names to describe the same person, and even if a notice was to be put up, there was no need to use those insulting words/terms the Defendant had chosen to use in the Notice. There was no truth in the allegation that the Plaintiff had acted deliberately to mislead others by representing herself as Mrs. Wong instead of using her own maiden name, and the Defendant would not have a good defence had the Plaintiff’s case been established against him. The Defendant would also not succeed to raise the defence of fair comment, i.e. that the statement is fair comment based on true facts made in good faith on a matter of public interest. The courts defined public interest widely and the interest of the owners of the Building in the voting for or against the renovation of the lifts might fall within the definition (London Artists v Littler (1969) 2 QB 375). The comment made by the Defendant could not have been fair as the facts on which it was based was not true that the Plaintiff and the other committee members were acting deliberately to mislead the owners/voters by referring to the Plaintiff as Mrs. Wong, and that the view expressed was not a view that anyone, however prejudiced and obstinate, could honestly have held. 11.As the Plaintiff has failed to establish liability, her claims would therefore fail and her claims are therefore dismissed. The Defendant’s conduct was deplorable and was wholly unnecessary. As for costs, the right order should be that there be no order as to costs. I therefore order that there be no order as to costs.
Representation: The Plaintiff appeared in person. The Defendant appeared in person. |