Wong Wing Ho v. Chong Lai Wah and Another
Read the full judgment text of CACV 212/2007 on BabelCite. This Court of Appeal judgment was delivered on 13 February 2008 before Tang VP and Cheung JA.
Civil procedure – defamation – striking out – statement of claim – whether disclosing no reasonable cause of action – appropriate test for striking out in defamation – whether words capable of bearing defamatory meaning – plaintiff owner of shop in industrial building – defendants chairlady and committee member of Incorporated Owners of building – two letters issued by Incorporated Owners to plaintiff and copied to all owners alleging illegal occupation of car park space and three years of unpaid water charges – plaintiff sued defendants for defamation – defendants applied to strike out – test for striking out in defamation is whether it is plain and obvious that the words are incapable of bearing a defamatory meaning of the plaintiff, not whether the words are not defamatory – Drummond-Jackson v British Medical Association; Morgan v Odhams Press Ltd – Jameel v Dow Jones not followed as Hong Kong has not adopted the English CPR – Chu J applied the wrong test by considering whether the words bore defamatory meaning rather than whether they were capable of doing so – on the correct test, the 1st letter's heading and first paragraph alleging illegal occupation of car park space and the 2nd letter's heading and content regarding unpaid water charges were arguably capable of bearing defamatory meaning – whether qualifying words neutralise the defamatory sting is for the jury – defendants also participated in publication of letters in their capacity as chairlady and committee member – no respondent's notice challenging this point – appeal allowed with costs here and below.
Legal issues: Whether the statement of claim should be struck out for disclosing no reasonable cause of action in a defamation action
Outcome: Appeal allowed; the order of Chu J striking out the statement of claim is set aside and the plaintiff is permitted to proceed with his defamation action.
Cited by 14 cases
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CACV 212/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 212 OF 2007 (ON APPEAL FROM HCA 1948 OF 2005) ------------------------------ BETWEEN
------------------------------ Before : Hon Tang VP and Cheung JA in Court Date of Hearing : 29 January 2008 Date of Judgment : 13 February 2008 ------------------------------ JUDGMENT ------------------------------ Hon Tang VP: 1.For the reasons given by Cheung JA, I have reluctantly come to the conclusion that the appeal must be allowed. That is so, although I share Chu J’s view that:
Unfortunately, the test is: is it
2.This appeal illustrates the danger in defamation actions of trying to strike out what may appear to be an extremely weak case. Such cases normally do not proceed to trial but the temptation to hasten its demise should be resisted. 3.The 2nd defendant submitted that the plaintiff should not have sued him personally, that the letters were duly authorized by the Incorporated Owners and issued pursuant to a resolution passed at the Management Committee Meeting. On this, the learned judge decided against the 2nd defendant, and rightly so in my view. The plaintiff’s tactic may smack of victimization but the 2nd defendant is probably entitled to an indemnity by the Incorporated Owners, although that is not a matter for decision today. 4.In any event, I agree with Chu J that it is arguable that the 2nd defendant:
5.So even if the point had been properly raised, it would not have succeeded. 6.The appeal is allowed with costs here and below. Hon Cheung JA : Background of the case 7.The plaintiff is the owner of Shop I on the 1st Floor of Century Industrial Centre situated at 33-35 Au Pui Wan Street, Fo Tan, Shatin, New Territories (‘the building’). 8.The owners of the building had been registered as a corporation under the Building Management Ordinance (Cap. 344) (‘BMO’). In July 2005 the 1st defendant was the chairlady of the corporation and the 2nd defendant was a committee member of the 8th Management Committee of the corporation. 9.In July 2005 the corporation issued two letters to the plaintiff with copies sent to the other owners of the building. The first letter was dated 11July 2005 and the content is as follows :
10.The 2nd letter was dated 15 July 2005 and the content is as follows :
11.The plaintiff claimed that in respect of the 1st letter, the heading and the first paragraph were defamatory of him. The translation of the relevant parts is as follows :
12.In respect of the 2nd letter the plaintiff claimed that the whole letter was defamatory of him. The translation of the 2nd letter is as follows :
13.The plaintiff sued the defendants for defamation. The defendants applied to strike out the statement of claim on the ground that it disclosed no reasonable cause of action and succeeded before Chu J. The plaintiff now appeals to this Court. Could the plaintiff sue the defendants? 14.Chu J first of all held that while the two letters were issued and authorised by the corporation and that the plaintiff could have sued the corporation as well, he could also sue the defendants because arguably the defendants had, in their capacity as the chairlady and a member of the 8th Management Committee of the corporation, taken part in authorising the issue of two letters to the plaintiff. And thus they had caused or participated in the publication of the letters. There was no Respondent’s notice filed by the defendants challenging this particular issue. 15.Although the 2nd defendant who now acts in person submitted that the plaintiff should not have sued him, this is not a matter that he is entitled to raise in the plaintiff’s appeal. In any event, I agree with Chu J’s view on this matter. The issue 16.The sole issue in this appeal is whether Chu J was correct to strike out the statement of claim on the ground that it disclosed no reasonable cause of action. The appropriate test 17.In defamation cases the practice is that at the close of the plaintiff’s case the defendant may make a submission of no case to answer and invite the judge to withdraw the case from the jury. The judge will then consider whether the words complained of are capable of bearing a defamatory meaning of the plaintiff. If the judge so decides then he will leave the matter to the jury who will then decide whether the words complained of are actually defamatory of the plaintiff, see : Morgan v. Odhams Press Ltd [1971] 1 WLR 1239. As Lord Morris of Borth-y-Gest observed at pg 1251 :
18.Consistent with this practice, for the purpose of a striking out application of a statement of claim based on defamation, the test is not whether it is plain and obvious that the words are not defamatory but rather whether it is plain and obvious that the words are incapable of bearing a defamatory meaning of the plaintiff. This approach can be gathered from the majority decision of Lord Pearson and Sir Gordon Willmer in Drummond-Jackson v. British Medical Association [1970] 1 WLR 688. The case was concerned with the striking out of a statement of claim on defamation. 19.Lord Pearson after referring to the plain and obvious requirement in a striking out application stated at page 697 that,
20.Lord Pearson further expanded on this in Morgan at page 1268 :
21.On the issue of what is plain and obvious Sir Gordon Willmer in Drummond-Jackson at page 700 held that :
22.The test propounded in the two cases is the appropriate test that the Hong Kong courts should apply. Recent English development 23.Ms Lau, counsel for the 1st defendant, who also did not appear in the court below, relied on the recent English Court of Appeal decision of Jameel (Yousef) v. Dow Jones & Co. Inc [2005] QB 946 in which the Court applied the proactive approach required by the overriding objective of the English Civil Procedure Rules and struck out a statement of claim in a defamation action as an abuse of process. Hong Kong has not adopted the same rules and the implication of the English approach has not been canvassed. In the circumstances I will continue to adopt the traditional test I have addressed earlier. The approach before the Judge 24.In the present case the appropriate test was apparently not referred to Chu J. In fact the cases of Morgan and Drummond-Jackson were only referred to by Mr. Lin, counsel for the plaintiff, in the morning of the appeal. Mr. Lin did not appear before the Judge. From the judgment one can discern that Chu J was invited by counsel for the defendants to consider whether the words were defamatory and not whether the words were capable of bearing the defamatory meaning of the plaintiff. This can be seen in the following passage of the judgment :
25.It is clear when a judge exercised a discretion in a striking out application this Court will not interfere with the exercise of the discretion unless the judge had erred, for example, by adopting a wrong principle in making the decision. It is clear that because the parties had not properly addressed Chu J as to the correct test to apply, the exercise of the discretion by her was proceeded upon on a wrong basis and hence this Court is entitled to exercise the discretion again. My approach 26.The test I will adopt is whether it is plain and obvious that the relevant parts of the two letters are incapable of bearing a defamatory meaning of the plaintiff. If it is incapable then the defendants are entitled to succeed in striking out the statement of claim, otherwise the plaintiff must be entitled to proceed with his action. What is defamatory? 27.A statement is defamatory if, among other things, it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally, see Gillick v. the British Broadcasting Corporation [1996] EMLR 367, the Times 20 October 1995. The 1st letter 28.In my view the wording of the heading and the first paragraph of the 1st letter arguably is capable of bearing a defamatory meaning of the plaintiff. The words ‘Illegal Occupation of Car Park Space’ and the statement that the plaintiff was also involved with the illegal trespass and occupation of the car park space are capable of conveying the meaning relied upon by the plaintiff, namely, that he has been and still is wilfully trespassing and unlawfully occupying or using a portion of the car park area of the building. This will fulfill the test in Gillick. Whether the qualifying words in the first paragraph that ‘Please clarify your position with the Incorporate Owners to avoid any misunderstanding’ will remove the stink of the defamation will be a matter for the jury to decide. 29.As Lord Bridge of Harwich in Charleston v. News Group Newspaper Limited [1995] 2 AC 65 observed at page 72 :
30.Lord Nicollas of Birkenhead further observed that,
31.I would add that arguably if the 1st letter was merely trying to seek a clarification from the plaintiff on the illegal occupation of the car park space than one would not expect the letters to be sent to the other owners of the building as well. The 2nd letter 32.It was held in Winstanley v. Bampton [1943] 1 KB 319 that a mere statement that the plaintiff was indebted to the defendant could not be held to be defamatory apart from some special circumstances but where the statement also included the following namely, ‘should the plaintiff assist in refusing payment there seem to be no alternative to the very unpleasant one of taking the matter to court the statement were defamatory of the plaintiff’. 33.In my view the heading of the 2nd letter namely ‘3 years of water charges owed’, and the rest of the letter, namely, that the plaintiff had written nine letters to the corporation, had made unreasonable demands, and that the corporation was considering to resolve the matter by legal means are also arguably capable of suggesting a defamatory meaning of the plaintiff in that the plaintiff despite being liable to pay for the charges had wilfully and unreasonably refused to pay the water charges for three years. Again such a meaning may affect the reputation of the plaintiff. Conclusion 34.In my view the defendants had failed to show that it was plain and obvious that the two letters were incapable of bearing any defamatory meaning of the plaintiff. In the circumstances the statement of claim should not be struck out. I would allow the appeal and order the defendants to pay the costs of the appeal and below to the plaintiff.
Mr. Kenny Lin, instructed by Messrs Hampton, Winter & Glynn, for the Plaintiff Ms. Lorinda Lau, instructed by Messrs Darin Leung & Partners, for the 1st Defendant 2nd Defendant : in person, present | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other judgments that cite this case
Further hearings and rulings under CACV 212/2007