Lee York Fai v. Ho Hau Cheung
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HCA 1251/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1251 OF 2005 ____________ BETWEEN
____________ Before: Recorder A Chan, SC in Court Dates of Hearing: 27 & 30 April 2007 Date of Judgment: 14 May 2007 _______________ J U D G M E N T _______________ Background 1.The Plaintiff (“Dr Lee”) and the Defendant (“Mr Ho”) have both been members of the Shatin District Council (“the Council”) since 1994. Plainly, they have known each other for a long time. Sadly, a dispute has arisen between them arising out of something which Mr Ho had said during a meeting of the Council that was held on the 2.11.04 (“the Meeting”). In this action, Dr Lee sues Mr Ho for defamation in respect of what was said by Mr Ho about him at the Meeting. 2.Dr Lee is a medical doctor and he has a clinic in Shatin. Mr Ho is a teacher. Both these gentlemen are elected members of the Council. There is no question in my mind that they are both dedicated in serving the community. I believe that they are well-known in Shatin and the New Territories East district. Indeed, Dr Lee’s unchallenged evidence is that he has on various occasions provided different kinds of free medical service to over 100,000 people in the New Territories East district. Further, he was and is referred to as “Dr Lee” by his colleagues in the Council. Mr Ho takes no issue that at all material times he knew that Dr Lee was a medical doctor. 3.At all material times, Dr Lee was not affiliated to any political party, whereas Mr Ho was a member of the Civic Force. Dr Lee’s evidence is that the Civic Force was affiliated with the Democratic Alliance for the Betterment of Hong Kong (“DAB”) and that since 1994 he had been competing for a seat and for various positions in the Council against members of the Civic Force or DAB. Mr Ho does not accept that there was any connection between the Civic Force and DAB and emphasizes that they were independent parties. I do not see that anything of substance will turn upon that issue. Dr Lee also said that he and Mr Ho were at the “opposite ends of the political spectrum”. However, there is no evidence before me that whatever political rivalry may have existed between Dr Lee and Mr Ho, it went outside what can be regarded as healthy competition normally expected under our political system. The Offending Statements 4.Details of the Meetings are recorded in a set of minutes which is of 39 pages (“the Minutes”) and is agreed by the parties. There were 60 people at the Meeting, including 48 Council members, various Government officials, 2 news reporters and 1 member of the public. In para. 83 on page 29 of the Minutes, it is recorded that Mr Ho made a comment about Dr Lee in response to what Dr Lee had said. The Minutes are of course recorded in the third person. Mr Ho’s evidence is that what he said at the time (“the Statements”), which is perfectly consistent with the Minutes, was as follows:
5.The English translation for the Statements, as agreed by the parties, is as follows:
6.In the course of final submissions, Mr Fung, who appears for Dr Lee, said that Dr Lee no longer disputes the accuracy of the Statements. In fact, Dr Lee’s version of what was said does not differ greatly from the Statements and is set out below together with the pleaded translation:
7.Bearing in mind that the Meeting was tape recorded, it is surprising that any disagreement on what was said by Mr Ho was not resolved well before this trial. Had it been necessary to adjudicate on the issue, I would have no hesitation in preferring Mr Ho’s version of what he said because, as noted above, it mirrors what is recorded in the Minutes. Whilst I accept Dr Lee’s point that minutes are generally meant to record the gist of what was said, in this particular case, due to the fact that Dr Lee had made a formal complaint at the Meeting against Mr Ho about what was said by him, a request was specifically made by a Council member to the Secretariat for a clear record to be made in the minutes of what was said by Mr Ho and Dr Lee (see p.33, para.101 of the Minutes). 8.Further, prior to the approval of the Minutes, a draft was circulated to, inter alia, Dr Lee on about the 13.12.04. Dr Lee made no suggestion that the draft required any amendment. 9.Furthermore, Dr Lee accepts that he has no contemporaneous notes of what Mr Ho said. The human brain cannot normally remember a string of sentences with accuracy. Dr Lee said that he had repeatedly cross-checked his version of what was said with members sitting next to him and that they agreed with his account. I do not believe that this evidence takes Dr Lee’s case any further. Firstly, none of those members was called to give evidence to support Dr Lee’s case. Secondly, assuming that a version of what was said was agreed between Dr Lee and those members, no contemporaneous notes were made of the same. 10.I should say a few words about the context in which the Statements came to be made. The relevant part of the Minutes starts at p.20 and concludes at p.33. There was a discussion about the introduction of “Small Class Education” (“SCE”) in Shatin. No fewer than 10 Council members and 1 representative of the Education and Manpower Bureau spoke on this issue. It is evident from the speeches of the Council members that some of them held strong views on the subject. Amongst them was Dr Lee who expressed a view against the indiscriminate application of SCE. In the course of expressing his view, the terms “keeping the rice bowl” and “feeding the lazy guys” were used. Mr Ho responded to that speech of Dr Lee, in the course of which the Statements were made. 11.Very sensibly, Mr Fung has narrowed down his case to one of libel based on the republication of the Statements in the Minutes, thereby rendering otiose the arguments advanced by Mr Cheung, who appears for Mr Ho, on (a) whether Dr Lee’s case of slander is actionable per se without proof of special damage and (b) whether s.23 of the Defamation Ordinance, Cap.21 is applicable to Dr Lee’s case. 12.For completeness, Mr Fung made an application to re-amend the Statement of Claim, after the evidence was concluded, to include, inter alia, a plea of libel based on a republication of the Statements (in substantially the same form) in a newspaper called “Ming Pao New Territories East Express” [Bundle 2/ p.283]. I accepted Mr Cheung’s submission that there was prejudice to Mr Ho which could not be compensated by costs if that particular re-amendment were allowed, namely, that Mr Ho was denied the opportunity to give evidence in defence of that plea. Accordingly, that re-amendment was rejected. Meaning of the Statements 13.To decide whether or not the Statements were defamatory, I must first consider the meaning that the words would convey to the ordinary person. It is the natural and ordinary meaning of the words which matters:
14.The pleaded meanings[1] are as follows:
15.It should be noted the Statements did not refer to Dr Lee as a medical doctor, whereas the pleaded meanings are based on Dr Lee’s version of what was said which contains such a reference (see para. 6 above). However, Dr Lee relies upon certain innuendos based on the fact that the readers of the Minutes knew that he was a medical doctor. It is agreed that the Minutes were read by the Council members, Secretariat staff and various Government officials. Fairly, Mr Cheung does not dispute that those readers knew of Dr Lee’s profession. The relevant[2] pleaded innuendos[3] are as follows:
16.I have no difficulty in rejecting the proposition that the words of the Statements (“the Words”) meant that Dr Lee “made comments and did thing without giving due consideration and information” or was “a person who always muddles through issues without giving due consideration”. I do not see how those meanings can arise from the second and third sentences of the Statements, which are the basis of the proposition. 17.In my judgment, the Words bore or were capable of bearing the following meanings:
18.My findings do not entirely reflect the pleaded meanings or innuendos. I believe that these findings are simply variants of the pleaded meanings and innuendos and that the just determination of this case should not be shackled by non-critical deficiencies in the pleading. 19.In coming to my findings, I have rejected Mr Cheung’s submission that I have to look at the second and third sentences of the Statements in conjunction and that they did not give rise to the meaning that Dr Lee was raised under a substandard education. Instead, the meaning derived from those sentences was that Dr Lee was muddle-headed sometimes. Mr Cheung’s submission does not sit well with Mr Ho’s evidence. In his cross-examination, Mr Ho said that: “I agree that for the listeners, what I referred to as muddled-headed was due to the fact that [Dr Lee] had received education which emphasized quantity and not quality”. Of course, such evidence is not critical because it is the understanding of the reasonable reader which counts. However, in my view, the reasonable reader would have agreed with Mr Ho. 20.Further, I agree with Mr Fung that there are two distinct stings in the second and third sentences, namely, that Dr Lee was raised under a substandard education and that he was muddle-headed sometimes. 21.I believe that my finding set out in para. 17(a) above is self-evident from the Words, bearing in mind the knowledge of the readers that Dr Lee was a medical doctor. As regards my finding under para. 17(b), it is, I believe, an inference which the reasonable reader would draw from the suggestion that Dr Lee was raised under a substandard education system. 22.In his submissions, Mr Fung has also advanced complaints based on the sting that Dr Lee was muddle-headed. I can see no such plea in his pleading (a critical deficiency). In any case, as will emerge shortly, I do not believe the suggestion that Dr Lee was sometimes muddle-headed is defamatory. Are the meanings defamatory? 23.There can be no doubt that the meanings set out in para. 17 above are defamatory of Dr Lee. Indeed, Mr Cheung has not suggested otherwise. No attempt has been made to prove that Dr Lee was indeed raised under a substandard education. 24.In respect of the suggestion that Dr Lee was “a bit muddle-headed sometimes” (the meaning of those words is plain), whether that was defamatory depended, in my view, very much upon the circumstances and context in which those words were uttered. Mr Cheung argues strongly that everyone can be a bit muddle-headed sometimes. I certainly cannot disagree with that proposition. 25.Further, it must be borne in mind that the Words were said in the context of a lively District Council debate. Mr Ho was making a point that he disagreed with what was said by Dr Lee and he regarded the same as the product of muddle-headedness. I am unable to see that the words “a bit muddle-headed sometimes” in the circumstances and context in which they were spoken would have lowered Dr Lee in the estimation of right-thinking members of society generally or exposed him to hatred, contempt or ridicule [Gatley on Slander and Libel, 10th ed., p.8, para.1.5] S.86 of the District Councils Ordinance, Cap.547 (“the Ordinance”) 26.Mr Cheung has, rightly, indicated that he would abandon his defences of justification and fair comment in the event that this court finds that the Words meant that Dr Lee was brought up under a substandard education system. His remaining defences are (i) s.86 of the Ordinance (“s.86”) and (ii) qualified privilege. 27.Both Counsel are of the view that there is a considerable amount of overlapping between s.86 and qualified privilege. For the reasons set out below, I believe that the primary consideration should be s.86 and if that defence is made out, much of the highly technical arguments concerning qualified privilege would become irrelevant. 28.There are actually two relevant sections in the Ordinance which need to be considered, s.61 and s.86: s.61
s.86
29.The s.86 defence was described as a “statutory qualified privilege” in Chan Chook Tim v Wong Kwok Hung, CFI, [2004] 1 HKC 18, a case heavily relied upon by Mr Cheung. I agreed with that description. However, in my view, whilst the law on qualified privilege is of some assistance when the application of s.86 is considered, one should not simply equate the two. Plainly, the terms of s.86 reflect an intention on the part of the legislature to provide a blanket immunity to the District Council members from being sued provided that (a) they were performing their functions under, inter alia, the Ordinance and (b) they were acting bona fide. 30.Further, the law of qualified privilege was there when s.86 was enacted. Logic dictates that the section was intended to provide a defence which was different (and/or in addition) to qualified privilege. In my view, when the application of s.86 is considered, the court is freed from the myriad of technicalities which have been developed over the years on the law of qualified privilege. The issues are simply those two identified in the preceding paragraph. It would be defeating the purpose of s.86 to make its application unnecessarily complicated with the adoption of various technicalities which apply to the law of qualified privilege. This view is fully consistent with the wording of s.86. 31.In respect of the first issue – whether Mr Ho was performing his functions under the Ordinance when he took part in the discussion on SCE at the Meeting, it seems to me that the answer is quite clearly in the affirmative. It was a discussion for the purpose of advising the Government, which fell within s.61(a)(i) and/or (ii) and/or (iii). 32.Mr Fung’s arguments on the 1st Issue is, with respect, burdened with the adoption of a number of technicalities developed under the law of qualified privilege, e.g., one of the questions he posed for this court is whether Mr Ho had a duty to make the Statements. For the reasons stated above, much of the arguments based on the law of qualified privilege are, in my view, of limited relevance. 33.However, Mr Fung argues that Mr Ho was not discharging his duties under the Ordinance at the material times because, instead of advising the Government, Mr Ho was attacking his political rival. Further, Mr Fung submits that the defamatory remarks in question were irrelevant to the discharge of Hr Ho’s duties. I accept that Dr Lee and Mr Ho were political rivals (the evidence is not disputed). However, I cannot begin to see what evidence there is in support of Mr Fung’s first point. The fact that defamatory remarks against Dr Lee were made in Mr Ho’s response cannot by itself nullify the fact that Mr Ho was engaged in a discussion, the purpose of which was to advise the Government. Whilst I cannot discount the possibility that there can be a case where what a District Council member was doing was, despite its appearance, not in fact a discharge of his duties under the Ordinance, it appears to me that the argument made by Mr Fung should properly be addressed under the second issue – whether Mr Ho was acting bona fide. In my view, the determination under the first issue should normally involve a simple finding of fact. 34.Mr Fung’s second point is premised upon the law concerning qualified privilege, citing Adam v Ward [1917] AC 309 at 340:
35.I do not agree that such technicality should be imported in a wholesale fashion or is relevant to the consideration of the first issue under s.86. In any case, it cannot be right to have what Mr Ho said in response to Dr Lee’s speech carefully dissected and analysed so as to evaluate whether a particular sentence or word was or was not relevant for the purpose of performing his functions. Such an exercise is, with respect, somewhat detached from reality. The fact is that emotive terms or strong language (even defamatory language) are used in discussions and debates everyday. I can understand (without in any way endorsing it) that, being a teacher, Mr Ho was upset about Dr Lee’s comments of “keeping the rice bowl” and “feeding the lazy guys”. No doubt he felt it necessary or was driven by impulsiveness to rebuke such comments. 36.Further, if the court were to engage in the exercise advocated by Mr Fung, the protection provided by s.86, certainly in respect of defamation actions, would be considerably diminished. Such a result cannot be conducive to allowing the District Council members the freedom to discharge their functions without fear and is inconsistent with the intention behind s.86 as reflected by its wording. This is not to say that the District Council members are in a position to abuse their privilege. The immunity under s.86 is subject to acting bona fide. Before I deal with the second issue, I ought to quote a passage from the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135 at 151 (an authority on qualified privilege), which reflects the above concern:
37.In respect of the second issue, Mr Fung has rightly accepted that the burden of proof is on Dr Lee and it is not a light one. Mr Fung’s submissions here are premised upon the law of “express malice”. It is a term of art employed to describe improper motives and absence of honest belief which would defeat the defence of qualified privilege [see summary of the principles in Gatley, supra, pp.510-1, para.16.3]. In para. 33 of his Closing Submissions, Mr Fung sets out his case on express malice, which he has adopted in his arguments on lack of bona fides:
38.It is clear to my mind that the defamatory remark in question was gratuitous and made in the heat of the debate on SCE. I do not believe that Mr Ho had an honest belief that Dr Lee was raised under a substandard education. Mr Ho said in cross-examination that: “I am of the same age group as Dr Lee and I received the same education. I firmly believe that the Hong Kong education system at the time had the emphasis on quantity but not quality”. I regard such evidence as an embellishment to downplay the insult to Dr Lee. On the other hand, I have no doubt that the defamatory remark was made on the spur of the moment when Mr Ho was upset by what Dr Lee had said. 39.For the reasons elaborated above, I believe that the protection under s.86 is wider than the defence of qualified privilege. I accept that the law of express malice is of assistance in guiding the court on what may amount to lack of bona fides. On the other hand, the court is not straitjacketed into applying those principles. The applicable principles for s.86 should be simple and easy to understand by the citizens of Hong Kong. 40.To resolve the second issue, one must start with what bona fide means in the context of s.86. In absolute terms, one may say that a defamatory remark (with no honest belief by the maker as to its truthfulness), albeit made on the spur of the moment, cannot be made bona fide (for convenience, I shall refer to such a remark as “Such Defamation”). I have said enough about the danger of rendering the protection under s.86 nugatory or substantially so. If one interprets bona fide in such absolute terms, it is difficult to see what protection s.86 was intended to provide to the District Council members which was not already in existence under the law of defamation, in particular the law of qualified privilege. 41.According to Stroud’s Judicial Dictionary of Words and Phrases, 7th ed., vol.1, pp.296-7:
42.In the context of s.86, the term bona fide qualifies the action taken by the District Council member (“anything done for the purpose of carrying into effect …”). In simple terms, in order to invoke s.86, the District Council member must be acting honestly when he performs his functions as a District Council member. 43.Where Such Defamation has been made in the course of debate, it is a matter of degree whether the maker’s bona fides is negatived. In other words, Such Defamation would not automatically take the District Council member’s action outside the scope of “honest discharge of his function”. One must remember that debaters are liable to become emotional and lose their judgment in the heat of the proceedings. 44.If Such Defamation was (a) out of proportion or (b) could not be related to what was being debated or (c) made with an ulterior motive, for example, if what was said was simply a personal attack on another debater, the court might draw the inference of lack of bona fides on the part of the maker. I believe that (b) and (c) must be examined broadly and not with the use of a microscope. Further, it is important the threshold should not be set too low so that the integrity of the protection afforded by s.86 is at risk. 45.I do not agree with Mr Fung that the words used by Mr Ho were so “excessive” as to give rise to an inference of lack of bona fides. Nor do I agree with him that Mr Ho had misused the occasion with the dominant motive of damaging his political rival. In the premises, I am satisfied that the defence under s.86 has been made out. 46.In the circumstances, it is unnecessary to deal with the arguments under qualified privilege. Perhaps in the future, when an issue arises as to what has been said in the course of a District Council meeting like the present case, the focus of consideration would be the applicability of s.86. Conclusions 47.I dismiss this action. In respect of costs, not without some reluctance I award the costs of this action to Mr Ho to be taxed if not agreed. Such reluctance arises out of the fact that Mr Ho had acted in a way that he should not feel proud of. Further, he had refused to apologise to Dr Lee during the Meeting despite Dr Lee’s demand (although the complaint of Dr Lee at that time was the remark of muddle-headedness). Had an apology been made, this action might never have been launched.
Mr Kevin Y H Fung, instructed by Messrs. Fung, Wong, Ng & Lam, for the Plaintiff Mr. Kam Cheung, instructed by Messrs Chiu, Szeto & Cheng, for the Defendant [1] See para. 8 of Re-amended Statement of Claim (“RASOC”). [2] The other innuendos are not argued in Mr Fung’s final submissions and are in any case unsustainable. [3] See para. 9 of RASOC. |