Lee York Fai v. Yue Shin Man Anna

CACV 184/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 184 OF 2007

(ON APPEAL FROM HCA 4305 OF 2003)

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BETWEEN

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Before : Hon Cheung, Yeung JJA and Lam J in Court

Date of Hearing : 5 December 2007

Date of Judgment : 19 December 2007

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J U D G M E N T

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Hon Cheung JA :

The appeal

1.The plaintiff sued the defendant for defamation in respect of words allegedly said by the defendant and reported in an article in the Apple Daily. 

2.Poon J dismissed the plaintiff’s action.  The plaintiff now appeals. 

Facts

3.In November 2003 the plaintiff was a candidate in the District Council Election in respect of a seat in the Wo Che Estate constituency in Sha Tin. 

4.The defendant was the other candidate.  The plaintiff and the defendant were the only two candidates for that constituency. 

5.An article concerning the defendant appeared in the 17 November 2003 issue of the Apple Daily.  The defendant was interviewed by the newspaper reporter about her alleged breach of the guidelines of election activities. 

6.The defendant denied to the reporter that she was in breach of the guidelines and the article stated that :

‘	余倩雯反指對手獨立候選人李躍輝向街坊派發宣傳氣球，涉嫌觸犯選舉活動指引。’
‘	Yue Shin Man Anna counterclaims that independent election candidate Lee York Fai gives advertising balloons to neighbours, suspected of having infringed the election activities guideline.’  (Translation)

7.The plaintiff claimed that the following words were defamatory of him. 

‘	李躍輝向街坊派發宣傳氣球，涉嫌觸犯選舉活動指引(‘the Words’)。’
‘	Lee York Fai gives advertising balloons to neighbours, suspected of having infringed the election activities guideline.’  (Translation)

8.The defendant denied that she had said the Words. 

9.The defendant’s case was that the reporter who interviewed her told her that someone had complained that the defendant’s election pamphlets were attached together with the free tickets for a Cantonese opera that were distributed to the residents of Wo Che Estate in breach of the election guidelines.  The defendant’s response was that she would not be so foolish as to do such a thing and at that time as she saw someone at the flyover of the Estate distributing balloons advertising the plaintiff so she made the response that

‘	有人係度派波仔，都涉嫌觸犯選舉規例啦’。(‘The Defendant’s Words’).
‘	Some people are distributing balloons here.  They are also suspected of infringing the Guidelines of the Election.’  (Translation)

10.It is common ground that the guidelines referred to in the newspaper article was the ‘Guidelines on Election - Related Activities’ issued by the Electoral Affairs Commission established under the Electoral Affairs Commission Ordinance Cap. 541 (‘the guidelines’). 

11.The plaintiff did not sue Apple Daily or call the reporter who wrote the article to give evidence at the trial.  Both the plaintiff and the defendant gave evidence. 

12.At the end Poon J accepted the evidence of the defendant and found that the defendant did not say the Words as reported in the newspaper article.

13.The judge further found that when the Defendant’s Words were said by her she was referring to those who were actually distributing the balloons and not the plaintiff.

The plaintiff’s case

14.In the amended statement of claim the plaintiff only relied on the Words as the basis of his claim against the defendant. 

15.The plaintiff pleaded that the Words in the natural and ordinary meaning meant and were understood to mean :

‘	a.	the Plaintiff has paid no attention to the Guidelines in conducting the election campaign;
	b.	the Plaintiff has paid attention to the Guidelines but nevertheless acted wrongfully and in breach of the Guidelines recklessly or intentionally; and
	c.	the Plaintiff may run the 2003 District Council Election without due regards to the Guidelines.’

16.He also pleaded that, by way of innuendo, the Words meant :

‘	a.	the Plaintiff is, being a doctor and/or a member of the Sha Tin District Council, a person who does not follow rule or guidance fixed by authority’
	b.	the Plaintiff is, being a doctor and/or a member of the Sha Tin District Council a person who wishes to achieve result without due regards to rule or guidance fixed by authority;
	c.	the Plaintiff is, being a doctor and/or a member of the Sha Tin District Council, a person who wishes to advance his own interest and/or prejudice the interest of his competitors without due regards to rule or guidance fixed by authority;
	d.	the Plaintiff is a doctor and/or a member of the Sha Tin District Council who has acted in a manner below the standard expected or required of a doctor and/or a member of the District Council; and
	e.	the Plaintiff may not be a person of good character and/or may not have achieved such character as expected or required of a doctor and/or a member of the District Council.’

No alternative case

17.It is clear from the amended statement of claim that the plaintiff did not rely on the Defendant’s Words as being defamatory of him.  The plaintiff did not pursue an alternative case against the defendant on her words.   

18.This being the case once the Judge found that the defendant did not say the Words as reported in the newspaper then the plaintiff’s case was bound to be dismissed because the Defendant’s Words did not refer to the plaintiff by name.

‘The pleading point’

19.After accepting the defendant’s evidence the Judge stated that:

‘	28.	A pleading point arose from the above finding, which is this.  It is the plaintiff’s pleaded case that the defendant uttered the Words to Ms Ho i.e. the reporter which were published of him.  Had I found in his favour that the defendant did utter the Words, the Words, which contained an express reference to his name, must have been published of him.  But the Defendant’s Words did not expressly refer to him.  In light of my finding and in order to make good his claim, the plaintiff must prove that the Defendant’s Words were published of him.  The question is whether the plaintiff should first plead in his pleadings (by way of Reply) that the Defendant’s Words were published of him.  At her closing submissions, I invited Ms Chan to make submission on this point.  She submitted that it was not necessary.  She said the test is whether the plaintiff may reasonably be understood to be referred to by the Defendant’s Words : Gatley on Libel and Slander, 10th Edn, para. 7.2 at p.183.  This proposition is well established.  But it is not an answer to the pleading point.
	29.	The requirement of a proper plea is set out in Gatley at para.26.25 at pp.825-826 thus :
		“	It is an essential part of the claimant’s case to show that he is the person referred to by the defamatory words.  Accordingly, where it is not absolutely clear on the face of the words that they refer to the claimant, e.g., where he is described by his initial letters, or by a fictitious name, or by the name of somebody else, or where he is not mentioned at all, the claimant must make clear in his particulars of claim the basis on which he claims to have been identified as the subject of the words complained of.  He should set out the connecting facts which establish the link between himself and the words used...  These are material facts which must be pleaded.  If the claimant does not plead such facts sufficiently, his claim will be struck out...”  (Emphasis supplied.)
	30.	Applying the above principles, I am of the view that the plaintiff must plead the connecting facts which establish the link between himself and the Defendant’s Words.  It is not sufficient for counsel to simply contend that the plaintiff may reasonably be understood to be referred to by the Defendant’s Words.  The circumstances and the factors that Ms Chan sought to rely on to make good her contention must be pleaded first.  In the absence of a proper plea, it is not open to the plaintiff to argue that the Defendant’s Words were published of him.
	31.	For the above reasons, I find that the Defendant’s Words were not published of the plaintiff.’

The ground of appeal

20.From these passages Mr. Pow S.C. who did not appear below mounted his first ground of appeal on behalf of the plaintiff.  He complained that the Judge erred in holding that on the basis of the pleadings it was not open to the plaintiff to argue that the Defendant’s Words were published of and concerning the plaintiff.

21.As pointed out earlier, the amended statement of claim did not rely on any alternative plea based on the Defendant’s Words.  One must then look to see whether there was an agreement or understanding between the parties that the plaintiff was relying on an alternative case.  Mr. Pow submitted that there was indeed such an agreement and this can be found in the ‘List of Agreed Issues’ (‘the Issues’) which the parties had formulated to cover the issues to be tried by the Judge pursuant to his direction in the pre-trial review.  For the sake of completeness I will set out the part of the Issues relating to liability

‘	1.	Did the Defendant say “the said words” (as defined in paragraph 4 of the Statement of Claim) when she was interviewed by reporter(s) of Apple Daily News?  If not, what did the Defendant actually say?
	2.	Were the Defendant’s words published of the Plaintiff?
	3.	What was/were the meaning(s) of the Defendant’s words?
	4.	Were the Defendant’s words capable of bearing the defamatory meanings (as pleaded in paragraphs 10 and 11 of the Statement of Claim)?
	5.	Were the Defendant’s words calculated to disparage the Plaintiff in his office, profession, calling, trade or business?  In other words, is the Plaintiff’s present action for slander actionable per se without proof of special damages?
	6.	Can the Defendant establish any of the pleaded defence, including  (1) justification, (2) fair comment on matters of public interest, and (3) qualified privilege?’

22.At first glance Item 2 of the Issues, namely ‘Were the Defendant’s Words published of the plaintiff?’ seems to suggest that the defendant knew the plaintiff was raising an alternative case.  However, Mr. Cheung, who appeared for the defendant before the Judge denied that this was the situation.  Indeed from his written closing submission it was clear that the defendant’s position on Item 2 of the Issues was that once the Court found that the Defendant’s Words were those said by her then the plaintiff’s claim must fail because the Defendant’s Words did not refer to the plaintiff by name.  This can be seen from the top of the overview diagram appearing on page 2 of Mr. Cheung’s closing submission :

Were the words published of P (what did D actually say)?	→→→	“有人係度派波仔...”，not“李躍輝...’→ P fails.
	→→→	Apple Daily News quoting D correct

23.The written closing submission of the former counsel for the plaintiff in the court below further confirmed that Item 2 of the Issues did not have the effect of the parties agreeing that the plaintiff was pursuing an alternative case.  Paragraph 2 of her written submission stated that,

‘	2.	Did the Words refer to P?
	2.1	Law: The words should be understood by reasonable readers as referring to the plaintiff.
	2.2	P was referred to by his Chinese name “李躍輝”.  Reference to P was direct.’

24.Even at the closing the plaintiff’s case was still only on the basis that the defendant had mentioned the plaintiff by name in the interview.

25.If the plaintiff was pursuing an alternative case then I would agree with the Judge that the plaintiff must properly plead why he was the person who was being defamed despite the fact that his name was not mentioned at all because it is an essential part of the plaintiff’s case to show that he is the person referred to by the defamatory words.  As stated in Gatley on Libel and Slander 10^th Ed para 26.25 the plaintiff should set out the connecting facts which establish the link between himself and the words used, and he should make plain his case as to the existence of a person or persons who in fact linked him with the words by reason of their knowledge of those connecting facts.  These matters are material facts which must be pleaded.  If the claimant does not plead such facts sufficiently, his claim will be struck out.  The authority cited in support of this view Bruce v. Odhams Press [1936] 1 KB 697 at 713-74 per Scott LJ clearly confirmed this requirement and the likely consequence for the breach. 

26.My view is that the plaintiff’s case should properly be pleaded in the statement of claim and not, as the Judge suggested, in the reply.  The rationale for requiring the plaintiff to plead his case is simply one of fairness and practicality and not technicality : the other party must be aware of the plaintiff’s case so as to make a proper response to it.

27.The plaintiff in the Court below had not observed this requirement because it was abundantly clear that he did not rely on an alternative case.  It would be most unfair if the plaintiff was able to rely on an alternative case after the evidence was called and only during counsel’s closing submission.  In my view the Judge only raised the issue of pleading out of an abundance of caution.  The action could be dismissed once the Judge found that the defendant did not say the Words complained of.

The rule in Tournier v. National Provincial Bank

28.It is true that the plaintiff’s case against the defendant was based on slander and the principle set out in Tournier v. National Provincial Bank [1924] 1 KB 461 is that although precise words must be alleged in the particulars of claim, the claimant does not have to prove that these precise words were in fact published and it is sufficient if he proves a material and defamatory part of them or words which are substantially to the same effect.  However, this passage will not assist the plaintiff because the real issue in this case is about the absence of reference to the plaintiff in the Defendant’s Words.

The defence

29.I would further disagree that the plaintiff was absolved from the requirement of expressly pleading his case because by the way the defence was pleaded the identity of the plaintiff was no longer a live issue.  Responding to paragraphs 6 and 7 of the amended statement of claim, which referred to the Words as reported in the newspaper article, the defendant pleaded in paragraph 10 of the Re-Re-Amended Defence :

‘	10.	In further reply to paragraphs 6 and 7 of the Statement of Claim, the Defendant avers that the Plaintiff did infringe the Guidelines, or that there were reasonable grounds to believe that the Plaintiff had infringed the Guidelines.
		Particulars
		(1)	The Hong Kong Housing Authority sent a letter dated 15th January, 2004 to the Defendant stating that :-
			(a)	In accordance with the Guidelines issued by the Electoral Affairs Commission in September, 2003, advertising balloons with the name of the election candidate, election number and election slogan were election advertisements;
			(b)	Distributing the Balloons during the election period was advertising activity for the Election.
			(c)	All candidates for Election had to apply for approval from the Hong Kong Housing Authority for distributing advertising balloons in public housing estates of the Authority, and Wo Che Estate is one of such estates.
			(d)	The Plaintiff did not make any application to the Housing Authority for approval for distributing the Balloons on 16th November, 2003 within the areas of Wo Che Estate (including the commercial complex and the covered pedestrians fly-over).
			(e)	The Defendant will refer to the said letter of the Hong Kong Housing Authority at the hearings and trial of this Action.
		(2)	The voluntary workers distributing the Balloons were supporting the Plaintiff in the Plaintiff’s election campaign.
		(3)	By reason of the aforesaid, the Plaintiff infringed, or there was reasonable ground to believe that the Plaintiff had infringed, the Guidelines by sending or permitting his voluntary workers to distribute the Balloons in the commercial complex and the covered pedestrians fly-over of Wo Che Estate without obtaining any approval from the Hong Kong Housing Authority, and the said voluntary workers had infringed the Guidelines.
	11.	(1)	By reasons of the matters aforesaid, the Defendant’s Words in their natural and ordinary meanings are true in substance and in fact.
	11.	(2)	Further, by reasons of the matters aforesaid, if, which is denied, the Defendant’s Words referred to the Plaintiff, the Defendant pleads justification of the Defendant’s Words which in their natural and ordinary meaning are true in substance and in fact.’

30.The defendant had in fact pleaded earlier in paragraph 9 that :

‘

9.

In reply to paragraphs 6 and 7 of the Statement of Claim, the Defendant avers that the Defendant did not say any words which were untrue, defamatory and referred to the Plaintiff, and the Defendant further avers that the Defendant was referring to the voluntary workers distributing the Balloons where she said the Defendant’s Words.’

31.This was an express denial that her words were referring to the plaintiff.  She put forward a positive case that she was referring to the voluntary workers distributing the balloons.

32.In my view what was pleaded in paragraph 10 could not be construed as an admission on the defendant’s part on the identity of the plaintiff otherwise paragraph 9 would be meaningless.  Reading paragraphs 9, 10, 11(1) and 11(2) as a whole, what was pleaded in paragraph 10 was in support of the plea of justification in paragraph 11(2).  It is not necessary to enter into a discussion on whether paragraph 10 was a plea on the meaning of the Defendant’s Words which, as the case of Prager v. Times Newspapers Ltd [1988] 1 WLR 77 shows, the defendant is not obliged to do so.

Other matters

33.Bearing in mind the narrow basis on which the plaintiff proceeded with his case, it is not necessary to address the further three issues namely, whether the Defendant’s Words actually referred to the plaintiff or his volunteer workers; whether the plea of justification should succeed and the interpretation of the relevant parts of the Electoral Affairs Commission (Electoral Procedure) (District Councils) Regulations (Cap. 541) and Public Health and Municipal Services Ordinance (Cap. 132) in respect of display of advertisements.

34.The only comment I wish to make on the issue of reference to the plaintiff is that this must be considered in the context of the case and not solely on the structure of the sentence uttered by the defendant.

Conclusion

35.I would dismiss the appeal with costs to the defendant.

Hon Yeung JA :

Introduction

36.The plaintiff, Lee York Fai (a doctor) and the defendant, Yue Shin Man, Anna (a volunteer worker), were candidates in the 2003 District Council Election (“the Election”), both running for the only seat in the Wo Che Estate Constituency in Shatin.

37.On 17 November 2003, the Apple Daily News (“the Apple Daily”), in covering the Election at the Wo Che Estate Constituency, published a report to the effect that the defendant had denied breaching the Guidelines on Election-Related Activities issued by the Electoral Affairs Commission (“the Guidelines”), by distributing election advertisements in public areas of Wo Che Estate without the prior permission of the Hong Kong Housing Authority (“HKHA”) (the report).

38.The Apple Daily’s reporters, Ms Ho Man Man (“Ms Ho”) and Mr. Law Wai Kwong (“Mr. Law”), further wrote in the report: “余倩雯反指對手李躍輝向街坊派發宣傳汽球，涉嫌觸犯選舉活動指引” (Yue Shin Man counter-alleged that her opponent – Lee York Fai distributes advertising balloons to kaifongs (neighbours), (is) suspected of having infringed the Guidelines”).

39.The plaintiff alleged that the report originated from the defendant, and that she had told Ms Ho that “李躍輝向街坊派發宣傳汽球，涉嫌觸犯選舉活動指引” (Lee York Fai distributes advertising balloons to kaifongs, (is) suspected of having breached the Guidelines)  (“the Plaintiff’s Words”), which, according to the plaintiff, were defamatory of him.

40.The plaintiff therefore commenced the present proceedings against the defendant for slander and libel.  He did not, however, include Apple Daily or its reporters as defendants in the proceedings.

41.The defendant’s case was that she only told Ms Ho, “有人係度派波仔，都涉嫌觸犯選舉規例啦” (Some people are distributing balloons here, (they are) also suspected of infringing the Guidelines”) (the Defendant’s Words”).

42.The defendant suggested that when she spoke the Defendant’s Words to Ms Ho, voluntary workers assisting the plaintiff were distributing balloons bearing the plaintiff’s caricature, his Chinese name 李躍輝 (Lee York Fai), “請投一票” (Please cast a vote) (“the Balloons”).

The Plaintiff’ s Case

43.The plaintiff alleged that the defendant published the Plaintiff’s Words to Ms Ho and Mr. Law orally on 16 November 2003 and further caused the publication of the report on 17 November 2003, and that the Plaintiff’s Words, in their natural and ordinary meaning, meant and were understood to mean :

(a)	that the plaintiff had paid no attention to the Guidelines in conducting the election campaign;
(b)	that the plaintiff had paid attention to the Guidelines, but nevertheless acted wrongfully and in breach of them recklessly or intentionally; and
(c)	that the plaintiff might run the Election without due regard to the Guidelines.

44.The plaintiff further pleaded, by way of innuendo, that the Plaintiff’s Words were understood to mean :

(a)	that the plaintiff is, being a doctor and/or a member of the Shatin District Council, a person who does not follow rules or guidance fixed by authority;
(b)	that the plaintiff, being a doctor and/or a member of the Shatin District Council, a person who wishes to achieve result without due regard to rules or guidance fixed by authority;
(c)	that the plaintiff is, being a doctor and/or a member of the Shatin District Council, a person who wished to advance his own interest and/or prejudice the interest of his competitors without due regard to rules or guidance fixed by authority;
(d)	that the plaintiff is a doctor and/or a member of the Shatin District Council who has acted in a manner below the standard expected or required of a doctor and/or a member of the District Council; and
(e)	that the plaintiff may not be a person of good character and/or may not have achieved such character as expected or required of a doctor and/or a member of the District Council.

The Defence Case

45.The defendant suggested that when talking to Ms Ho, she was referring not to the plaintiff, but to his voluntary workers who were distributing the Balloons.  The defendant, in paragraph 4 of the re-re-amended defence, stated :

“	The new(s) reporter did not quote the Defendant’s Words accurately.  The Defendant did not mention the name of the Plaintiff or referred to the Plaintiff.”

46.The defendant also pleaded justification that the plaintiff did infringe the Guidelines or that there were reasonable grounds to believe that he had done so.

47.In her re-re-amended defence, the defendant averred :

‘	10.	In further reply to paragraphs 6 and 7 of the Statement of Claim, the Defendant avers that the Plaintiff did infringe the Guidelines, or that there were reasonable grounds to believe that the Plaintiff had infringed the Guidelines.
		Particulars
		(1)	The Hong Kong Housing Authority sent a letter dated 15th January, 2004 to the Defendant stating that :-
			(a)	In accordance with the Guidelines issued by the Electoral Affairs Commission in September, 2003, advertising balloons with the name of the election candidate, election number and election slogan were election advertisements;
			(b)	Distributing the Balloons during the election period was advertising activity for the Election.
			(c)	All candidates for Election had to apply for approval from the Hong Kong Housing Authority for distributing advertising balloons in public housing estates of the Authority, and Wo Che Estate is one of such estates.
			(d)	The Plaintiff did not make any application to the Housing Authority for approval for distributing the Balloons on 16th November, 2003 within the areas of Wo Che Estate (including the commercial complex and the covered pedestrians fly-over).
			(e)	The Defendant will refer to the said letter of the Hong Kong Housing Authority at the hearings and trial of this Action.
		(2)	The voluntary workers distributing the Balloons were supporting the Plaintiff in the Plaintiff’s election campaign.
		(3)	By reason of the aforesaid, the Plaintiff infringed, or there was reasonable ground to believe that the Plaintiff had infringed, the Guidelines by sending or permitting his voluntary workers to distribute the Balloons in the commercial complex and the covered pedestrians fly-over of Wo Che Estate without obtaining any approval from the Hong Kong Housing Authority, and the said voluntary workers had infringed the Guidelines.
	11.	(1)	By reasons of the matters aforesaid, the Defendant’s Words in their natural and ordinary meanings are true in substance and in fact.
	11.	(2)	Further, by reasons of the matters aforesaid, if, which is denied, the Defendant’s Words referred to the Plaintiff, the Defendant pleads justification of the Defendant’s Words which in their natural and ordinary meaning are true in substance and in fact.’

48.The defendant further averred that she did not know and could not have known that Ms Ho and Mr. Law would not quote her words accurately.

49.In any event, the defendant alleged that the plaintiff’s action for slander was not actionable without proof of special damage as the Defendant’s Words were not calculated to disparage the plaintiff’s profession as a doctor or his office as a District Councillor.

The Issues

50.Poon J, the trial judge, framed the following issues of fact for determination :

(1)	What did the defendant actually say to Ms Ho? Was it the Plaintiff’s Words or was it the Defendant’s Words?
(2)	Were the words spoken by the defendant to Ms Ho published of the plaintiff?
(3)	Did Apple Daily accurately republish what the defendant told Ms Ho in the Report?

The Judge’s Findings on the issues of fact

51.The judge, having carefully considered and analysed the evidence, concluded that :

(1)	What the defendant said to Ms Ho was the Defendant’s Words, and not the Plaintiff’s Words.
(2)	When the defendant uttered the Defendant’s Words, she was referring not to the plaintiff, but to those who were distributing the Balloons.
(3)	The Apple Daily did not report what the defendant said accurately and she could not be held liable for the Plaintiff’s Words published by the Apple Daily.

52.The judge rejected the plaintiffs’ contention that the Defendant’s Words, which the judge found to have been uttered by the defendant, were published of the plaintiff when there was no pleaded facts or particulars connecting him to the Defendant’s Words.

53.The judge concluded that in the absence of proper pleadings to such an effect, it was not open to the plaintiff to argue that the Defendant’s Words were published of him.

54.The judge expressly accepted the defendant’s evidence and found that when she uttered the Defendant’s Words, she was referring to those who actually distributed the Balloons and not to the plaintiff.

55.In any event, the judge found that the plaintiff did distribute the Balloons to the kaifongs of Wo Che Estate on 16 November 2003 as contended by the defendant without the prior approval of HKHA, and he was therefore in breach of the Guidelines.

56.The judge pointed out that on 16 November 2003, the defendant had not found out that the plaintiff had not obtained the requisite approval from HKHA, and therefore when she told Ms Ho that the distribution of the Balloons might involve a breach of the Guidelines, what she said was true. The judge found the plea of justification established.

57.The judge dismissed the plaintiff’s claim.

Grounds of Appeal

58.Mr. Jason Pow SC, on behalf of the plaintiff, puts forward a number of grounds with a view to set aside the judgment.

59.Mr. Pow suggests that the plaintiff was entitled to argue, on the pleadings, that the Defendant’s Words referred to him as the defendant had effectively alleged that the plaintiff had infringed the Guidelines or alternatively, there was reasonable grounds to believe so.

60.In so far as the defendant further pleaded that the Defendant’s Words did not refer to the plaintiff, Mr. Pow argues that there was an implied joinder of issues.  Mr. Pow refers to the “List of Agreed Issues”, which included the issue of “Were the Defendant’s Words published of the Plaintiff?”

61.Mr. Pow contends that the judge should have proceeded to consider and then resolve the issues of whether the Defendant’s Words were published of and concerning the plaintiff, and whether they were defamatory.

62.Mr. Pow further contends that in all the circumstances of the case, and whether the defendant intended the Defendant’s Words to refer to the plaintiff, a reasonable hearer was likely to understand them as referring to the only other candidate in the Election, namely the plaintiff.

63.Mr. Pow suggests that the judge was wrong not to find that the Defendant’s Words were published of and concerning the plaintiff.

64.On the issue of justification, Mr. Pow argues that the judge should have decided whether the defendant, by publishing the Defendant’s Words, intended to mean “that the plaintiff did infringe the Guidelines”, or whether “that there were reasonable grounds to believe that the plaintiff had infringed the Guidelines”.

65.Mr. Pow contends that if the judge should find the former, he should then decide, on the evidence, if the plaintiff did infringe the Guidelines, and if the judge should find the latter, he should then decide, at the material time on 16 November 2003, if the defendant had reasonable grounds to believe that the plaintiff had infringed the Guidelines.

66.In any event, Mr. Pow argues that on the proper construction of the relevant regulation, the distribution of the Balloons by the plaintiff did not constitute a breach of the Guidelines, and in so far as the judge so found, he had erred.

67.Mr. Pow further argues that there was no ground or no sufficient ground for the defendant to reasonably believe that the plaintiff had infringed the Guidelines.  On this issue, Mr. Pow suggests that the letter dated 15 January 2004 from HKHA was inadmissible and irrelevant.

68.Mr. Pow emphasizes that the plaintiff had made proper declaration to the Election Affairs Commission that he would be distributing balloons to electors as election advertisements and that the distribution of balloons was not in breach of the Guidelines.

69.In so far as the plaintiff stated in paragraph 5 of his witness statement, “I clearly understood that giving out advertising balloons constituted (to) election advertisement under the Guidelines that required application to and approval from the relevant authorities”, Mr. Pow suggests that the plaintiff was just referring to his “Declaration of Election Advertisements” dated 23 November 2003, in which he declared that 5,000 balloons would be distributed on 1 November 2003 by hand.

70.Mr. Pow refers s 103(9) of the Electoral Affairs Commission (Electoral Procedure)(District Council) Regulation, which stipulates, “The candidate must before he or she displays, distribute or otherwise uses an election advertisement, deposit with the Returning Officer a copy of the permission or other authorization given or obtained for the purposes of section 104A of the Public Health and Municipal Services Ordinance (Cap 132), and s 104A(1) of the Public Health and Municipal Services Ordinance, which stipulates : “No bill or poster shall be displayed or affixed-(a) on any private land, except with the written permission of the owner or occupier thereof; (b) on any Government land, except with the written permission of the Authority.”

71.Mr. Pow argues that the distribution of the Balloons did not fall within the ambit of s 104A(1) of the Public Heath and Municipal Services Ordinance because “a balloon” is not “a bill or poster” and the distribution of it does not constitute “displayed or affixed”.

72.Mr. Pow’s argument rests on his suggestion that “affixed” must involve a certain degree of “attachment” and “displayed” must also involve a certain degree of “permanence” or “maintenance”.

73.Mr. Pow suggests that the distribution of balloons in the circumstances of the present case is synonymous with a person wearing a T-shirt with a prominent print of a letter or a word and walking past Government land.

The Respondent’s Notice

74.By a respondent’s notice dated 4 July 2007, the defendant contends that even if the plaintiff was entitled to argue that the Defendant’s Words were published of him, they were in fact not published of him.  The defendant further argues that even if the Defendant’s Words were actually published of the plaintiff, those words were not defamatory of him.

Discussion

75.The plaintiff’s case against the defendant rested on the suggestion and the only suggestion that on 16 November 2003, the defendant orally published to Ms Ho and Mr. Law that“李躍輝向街坊派發宣傳汽球，涉嫌觸犯選舉活動指引” (Lee York Fai distributes advertising balloons to kaifongs, (is) suspected of having infringed the Guidelines).

76.There is no indication that the plaintiff’s case included the suggestion that the Defendant’s Words, in the circumstances of the case, must be published of the plaintiff.

77.Even at her closing submission, counsel for the plaintiff at trial, made clear that the plaintiff rested his case on the sole basis that the defendant had, by the Plaintiffs’ Words, made direct reference to him.

78.In response, counsel for the defendant submitted in his closing speech that if the court found that what the defendant said was the Defendant’s Words, then the plaintiff’s claim failed.

79.The defendant had completely denied the plaintiff’s allegation against her.  The defendant categorically stated in her defence that she only said “有人係度派波仔，都涉嫌觸犯選舉規例啦” (Some people are distributing balloons here.  (They are) also suspected of infringing the Guidelines).

80.The defendant expressly averred that by saying some people, she was only referring to those voluntary workers who were actually distributing the Balloons.  By paragraph 11(2) of the re-re-amended defence, the defendant also expressly denied that the Defendant’s Words referred to the plaintiff.

81.Whilst the defendant did further plead by way of justification that the plaintiff infringed the Guidelines, or that there were reasonable grounds to believe that he had done so, such averment was clearly by way of alternative defence only.

82.If it was the plaintiff’s alternative case that by saying, “有人係度派波仔，都涉嫌觸犯選舉規例啦” (Some people are distributing balloons here, (they are) also suspected of infringing the Guidelines), the defendant was referring to him, the plaintiff should have so pleaded in his reply, with particulars in support.

83.The Defendant’s Words, as found by the judge to have been uttered by the defendant to Ms Ho, did not, on their face, refer to the plaintiff.  It was never the plaintiff’s case that the Defendant’s Words referred to him and his case against the defendant was not conducted on such a basis.

84.Mr. Pow suggests that a plaintiff’s claim for slander will not fail just because he could not establish that the words uttered by the defendant were exactly as the plaintiff has pleaded.

85.Mr. Pow, relying on Tournier v National Provincial Bank [1924] 1 KB 461, suggests that it is sufficient if the plaintiff proves a material and defamatory part of the words which are substantially to the same effect.

86.With respect, the well-known principle enunciated in Tournier (supra) applies only to the alleged defamatory words; that “the plaintiff was entitled to put before the jury his case that the words proved, though not the very words pleaded, were words substantially to the same effect”, and it has no application when the issue is the identity of the plaintiff alleged to have been slandered.

87.A plaintiff cannot argue that the identity of the person alleged to have been slandered, thought not proved to be his, was substantially that of his.

88.Whilst it is possible to argue, depending on the supporting facts, that as the plaintiff was the only other candidate in the Election and that the “some people” mentioned by the defendant were voluntary workers assisting the plaintiff, a reasonable interpretation is that the defendant was referring to the plaintiff, it is equally possible that those voluntary workers were just being over-zealous and were infringing the Guidelines without the plaintiff’s approval or knowledge.

89.The Defendant’s Words “有人係度派波仔，都涉嫌觸犯選舉規例啦”(Some people are distributing balloons here, (they are) also suspected of infringing the Guidelines), properly understood in accordance with Chinese grammar, mean “有人係度派波仔，（有人或那些人）都涉嫌觸犯選舉規例啦” (Some people are distributing balloons here, (some people or those people) are also suspected of infringing the Guideline). The Defendant’s Words do not refer to the plaintiff.

90.As the judge quite rightly emphasized the requirement of a proper plea as set out in Gatley at para 26.25 at pp 825-826 :

‘

It is an essential part of the claimant’s case to show that he is the person referred to by the defamatory words.  Accordingly, where it is not absolutely clear on the face of the words that they refer to the claimant, e.g., where he is described by his initial letters, or by a fictitious name, or by the name of somebody else, or where he is not mentioned at all, the claimant must make clear in his particulars of claim the basis on which he claims to have been identified as the subject of the words complained of.  He should set out the connecting facts which establish the link between himself and the words used…These are material facts which must be pleaded.  If the claimant does not plead such fact sufficiently, his claim will be struck out…’

91.The defendant only said to Ms Ho that “Some people are distributing balloons here.  (Some people or those people) are also suspected of infringing the Guidelines”.

92.If it was the plaintiff’s case that by the Defendant’s Words, the defendant was actually targeting the plaintiff, or a reasonable hearer in all the circumstances of the case were likely to understand them as referring to the plaintiff, he should have expressly said so and supported his assertion by setting out the full particulars and the circumstances that he wished to rely on. The plaintiff did not do it.

93.As pointed out by the judge, the plaintiff did not even explain in his evidence how “some people” as mentioned by the defendant in the circumstances of the case could be understood as referring to him.

94.The judge, having examined closely the evidence, concluded that the Defendant’s Words only referred to those who actually distributed the Balloons and not to the plaintiff.

95.According the defendant, whose evidence the judge accepted, at the time when Ms Ho asked her questions, she saw people in the vicinity of the fly-over distributing balloons to advertise the plaintiff’s election campaign and she therefore said to Ms Ho, “有人係度派波仔，都涉嫌觸犯選舉規例啦” (Some people are distributing balloons here, (they are) also suspected of infringing the Election Activities Guidelines).

96.The plaintiff was not present during the conversation between Ms Ho and the defendant.  He was unable to say how and why “some people” as mentioned by the defendant could and should be understood as referring to him.  There is no valid basis upon which the judge could have found that the Defendant’s Words were published of and concerning the plaintiff.

97.I agree with the judge’s approach to the pleading issue.  I also agree with the submission of Mr. Kam Cheung, counsel for the defendant, that if the judge had considered the issue, he would have concluded that the Defendant’s Words were not published of the plaintiff.

98.On the fact as found by the judge, the plaintiff’s defamation action, as pleaded by him, simply had nothing to rest upon.

99.Mr. Pow’s argument on the ambit of s 104A(1) of the Public Health and Municipal Services Ordinance is interesting, but I do not agree with it.

100.It is neither necessary nor desirable to refer to extreme examples and I do not therefore wish to say whether wearing a T-shirt with a prominent print of a letter or of a word and walking past Government land constitutes a breach of this section.

101.If a large number of people, all wearing the same T-shirts depicting the same print of a letter or of a word, gathering in the public area of a housing estate without the written permission of the HKHA, it could well be an infringement of s 104A(1) of the Public Health and Municipal Services Ordinance.

102.This, however, is not an issue that concerns us in this appeal.

103.Balloons, in large numbers, were being distributed freely to kaifongs in public areas of Wo Che Estate as part of an election campaign.  In his “Declaration of Advertisements”, the plaintiff stated that the number of balloons intended for distribution was 5,000.  Clearly the balloons were part of the advertisements for the promotion of a candidate of the Election.

104.There were people giving out the Balloons to passers-by who were then holding the Balloons and passing them to and from.  One of the defendant’s volunteer, Ms Lau saw people distributing the Balloons in Wo Che Estate and she was able to get one herself.  The pictures she took, of the distribution of the Balloons, indicated that quite a large number of balloons were involved.

105.I do not agree with Mr. Pow’s submission that the Balloons were not “bill or poster” or that their distribution in the circumstances of the case did not constitute “displayed or affixed”.

106.The Balloons, in my view, certainly falls within the definition of “bill or poster” of “word, letter, model, sign, placard, board, notice, device or representation” under s 104E(4) of Public Health and Municipal Services Ordinance.  The Balloons certainly intended and did “make a prominent exhibition of something in a place where it can be easily seen”.

107.Under s 104A(1) of the Public Health and Municipal Services Ordinance, there is no requirement of “permanence” as suggested by Mr. Pow.  If “permanence” is intended by the Legislature as a prerequisite before s 104A(1) bites, the definition of “bill or poster” would not have included “placard, sign, notice”.

108.I do not accept Mr. Pow’s submission that the distribution of the Balloons in the circumstances of the present case did not require written permission from HKHA.

109.The plaintiff himself must have thought that the distribution of the Balloons was a breach of the Guidelines or else he would not have attempted to convince the judge that he only intended to and did only distribute the Balloons on the Election Day, that is, 23 November 2003 and not on the day in question.

110.The plaintiff further claimed that prior to 23 November 2003, he had only given away a small amount of the Balloons at his office internally to his volunteer helpers.

111.In paragraphs 5 and 6 of his witness statement, the plaintiff stated :

‘	5.	I clearly understood that giving out advertising balloons constituted (to) election advertisement under the Guidelines that required application to and approval from the relevant authority.  Giving balloons, judged from the activity itself would not infringe the Guideline if necessary application had been made and the relevant approval was granted.
	6.	However, I had not organized my advertising balloons giving activities within the area of Wo Che Estate Shatin on or before the date of 16 November 2003.  So far as I was aware, none of my campaign personnel or voluntary workers had given out advertising balloons in any activities within the area of Wo Che Estate on or before the date of 16 November 2003.’

112.Mr. Pow’s suggestion is that by “application to and approval from the relevant authorities”, the plaintiff was referring to his Declaration of Election Advertisements.  I do not find the suggestion convincing.

113.A declaration is neither an application nor an approval. There is no indication that the use of balloons, per se, in an election campaign requires any application or approval although it has to be declared.

114.As the judge observed in paragraph 4 of the judgment, “Under the Guidelines, distribution of election advertisements including balloons required the prior permission of the relevant authorities.  In the present case where distribution of election advertisements took place in the public area of Wo Che Estate such as pedestrians fly-over, the relevant authority was the HKHA, which manages the estate.  An application for permission for distribution of election advertisement had to be made to HKHA in advance.  Then a copy of the permission given by HKHA had to be provided to the Returning Officer.  Otherwise, it might constitute a breach of the Guidelines”.

115.The judge had further observed, “It was common ground that the distribution of balloons without prior approval of HKHA would constitute a breach of the Guidelines”.

116.If the plaintiff contended before the judge that the distribution of the Balloons without prior approval of HKHA would not constitute a breach of the Guidelines, evidence could be adduced on this aspect. May be the Election Affairs Commission and the HKHA could be summoned to give evidence on the issue of it was or was not so.

117.The plaintiff did not so contend and it is, in my view, unrealistic for Mr. Pow now to suggest that the distribution of the Balloons did not infringe the Guidelines.

118.I have considered carefully the grounds ably advanced by Mr. Pow on behalf of the plaintiff.  I am not persuaded that any of those grounds is well founded.

119.I would dismiss the appeal with costs.

Hon Lam J :

120.I agree with the judgments of Cheung and Yeung JJA.

Mr. Jason Pow, S.C. instructed by Messrs Fung Wong Ng & Lam, for the Plaintiff

Mr. Kam Cheung, instructed by Messrs Chiu, Szeto & Cheng, for the Defendant