Fung Tak Keung v. Hiew Kwai Fook and Another
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DCCJ 5738/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5738 OF 2007 ____________ BETWEEN
____________ Coram : Her Honour Judge H.C. Wong in Court Dates of Hearing : 27th, 30th & 31st March 2009 and 6th April 2009 Date of Handing Down Judgment : 27th May 2009 JUDGMENT 1.The Plaintiff claimed against the two Defendants damages and injunction for slander against the 1st and 2nd Defendants, their agents or servants from publishing the same or any similar slanders upon the Plaintiff. 2.The two Defendants denied the words uttered should be construed in isolation and out of context from the contents of the words spoken on the occasion. In the alternative, the two Defendants pleaded the defence of justification and fair comments on matters of public interests. Further or in the alternative, the words were published on an occasion of qualified privilege. Background 3.The Plaintiff and the two Defendants were and are shareholders of Sai Kung P.L.B. (Maxicab) (Nos. 1 & 2) Company Limited (hereinafter referred to as “SKPLB”). On 6 February 2007, shareholders of the SKPLB held its Annual General Meeting at the Hung Kee Seafood Restaurant in Sai Kung. 4.It is not disputed that during the meeting, at about 2.30 p.m. the 1st and 2nd Defendants in the presence and hearing of other shareholders and shareholders’ representatives of SKPLB said the following words:-
5.It is not disputed that the 1st Defendant had uttered the 1st and 3rd sentences while the 2nd Defendant uttered the 2nd sentence of “the words”. It is further not disputed that the two Defendants were referring to the Plaintiff when they spoke those words. The Plaintiff’s Case 6.It is the Plaintiff’s case that the natural and ordinary meaning and/or inferential meaning of “the words” meant and were understood to mean that the Plaintiff had:
7.Consequently, the Plaintiff claimed that his reputation has been seriously damaged and he has suffered considerable hurt, distress and embarrassment. 8.At the trial, the Plaintiff played a video recorded at the 6 February 2007 AGM at Hung Kee Seafood Restaurant during which “the words” were spoken by the two Defendants. The record of the proceedings at the AGM set the tone and background when “the words” were spoken by the two Defendants. 9.The Plaintiff further referred to an incident on 15 January 2007 at the office of the SKPLB during a meeting between Madam Hiew Nyuk Yin (the younger sister of the 1st Defendant and the aunt of the 2nd Defendant) and the wife of the Plaintiff, Madam Wong, together with the chairman of the SKPLB, Mr. Pang Chi Keung. Madam Hiew alleged that she was assaulted by the Plaintiff at the meeting on 15 January 2007 after a heated argument with Madam Wong and Mr. Pang. The Plaintiff, Mr. Fung, denied he had assaulted Madam Hiew on that occasion on 15 January 2007. It is Mr. Fung’s case that the two Defendants were referring to that particular incident when they uttered “the words”. As he denied he had assaulted Madam Hiew, the uttering of “the words” amounted to slandering him in front of the shareholders and the representatives of the shareholders at the AGM of the SKPLB on 6 February 2007. The Defence Case 10.It is the two Defendants’ case that:-
The 15 January 2007 incident 11.Mr. Fung, the Plaintiff, was elected to the board of directors as a director and vice-chairman of the SKPLB at the Annual General Meeting of the company in February 2006. He and other directors of the company were put in charge of the management and the daily operations of the SKPLB. The chairman of the board of directors elected at the February 2006 Annual General Meeting was Mr. Pang Chi Keung (Mr. Pang). The Plaintiff’s wife Madam Wong Wai Yuk (Madam Wong) took over the duties as the operation assistant in charge of the accounts and income and expenditure of the company after 16 February 2006. 12.The 1st and 2nd Defendants are shareholders of the SKPLB; they were also employed as drivers of the SKPLB. Madam Hiew Nyuk Yin was a contract driver of the SKPLB in charge of driving green line minibus line No. 1A between Sai Kung and Choi Hung at the material time. She is the younger sister of the 1st Defendant, Hiew Kwai Fook, and the aunt of the 2nd Defendant, Hiew Man Ching. It is not disputed that the 2006 February AGM with new directors elected onto the board resulted in a change in the component of the board of directors as well as the management team in the company. After Mr. Pang and Mr. Fung and the new directors took over from the previous board of directors and the management team headed by the Hiew family members, changes in the management and operations were introduced. At the end of 2006, the board decided to terminate all existing employment contracts of the contact drivers to be replaced by new employment agreements with the same drivers within 14 days. Upon termination of the old employment contracts, all drivers were entitled to receive long service payments according to the law. 13.On 15 January 2007 at about 2.30 p.m., Madam Hiew and her husband Mr. Ma Chor Keung together with Madam Hiew’s niece Miss Hiew Po Ling and her husband Mr. Lam Yiu Kwok visited the office of the SKPLB in Sai Kung to discuss with the company’s management their long service payments and to sign the new employment contracts. The contracts of Madam Hiew and her husband Mr. Ma were handled by Madam Wong and the chairman Mr. Pang. The employment contracts of Ms. Hiew and her husband Mr. Lam were handled by Mr. Fung, the Plaintiff. While Madam Hiew and her husband were negotiating with Madam Wong and Mr. Pang inside the office, Mr. Fung was talking to Miss Hiew and Mr. Lam about their respective contracts of employment at the conference area of the company premises. Madam Hiew was not happy with the calculations of her long service payments done by Madam Wong, she became excited and the discussion with Madam Wong and Mr. Pang became heated. 14.According to Madam Hiew, during the heated discussion with Madam Wong, she suddenly felt she was pulled back violently over her left shoulder. As a result of the sudden pull, she lost balance and fell back a couple of steps. She felt dizzy and realized the person who pulled her was Mr. Fung. She claimed Mr. Fung then crossed over to his wife’s side, taking his wife’s hand to confront Madam Hiew. Mr. Fung then said loudly to her “Do you want my wife to apologise to you?” Madam Hiew claimed she was very frightened because Mr. Fung was swearing at her and acting violently. She called the police who came within a few minutes after the call; later on, an ambulance also arrived and she was taken to the Tseung Kwan O Hospital. 15.At the hospital she was diagnosed to have suffered from left shoulder sprain and low back pain. She was given sick leave from 15 January 2007 to 18 February 2007, it was further extended from 21 February to 10 March, 12 March to 14 March and 11 April to 7 June 2007 by the doctors at the hospital. On 16 January 2007, she attended the police station in Sai Kung and made a police statement to assist police investigation of the incident. On 13 February 2007, she was informed by the Department of Justice that it was not going to lay charges against the Plaintiff. 16.According to Mr. Fung, when he was handling the employment contracts of Miss Hiew and Mr. Lam, he overheard heated exchanges between Madam Hiew and his wife and Mr. Pang. He decided to intervene in order to help to resolve the matter. He went into the office and crossed over to his wife, took her right arm, pulled her up, then put his right hand on top of the left arm of Madam Hiew and asked her to stand back to enable Madam Wong to move up from her seat. He then asked his wife to apologise to Madam Hiew. He claimed he had only put his hand over the arm of Madam Hiew and he had no intention to hurt Madam Hiew nor would the gesture cause her any injury. He claimed that Madam Hiew cried out about 2 minutes after he put his hand on her arm and shouted “why did you push me? I am afraid!” she then called the police. Subsequently, a month after the incident, Mr. Fung was informed by the police that the D.P.P. had decided there was insufficient evidence to lay any charges against him, that was the end of the matter. The Annual General Meeting of the SKPLB on 6 February 2007 17.According to Mr. Fung, there were 30 shareholders who attended the 2007 Annual General Meeting. The board decided to record on video the whole proceedings; after the meeting, Madam Wong would transcribe all the resolutions passed at the meeting. 18.At the meeting, while the issue of the term of office of the board of directors were being discussed, the 1st and 2nd Defendants pointed to him and uttered “the words”. As he was the only person with the surname Fung and the 1st and 2nd Defendants had pointed to him when they uttered “the words”, he had no doubt that they were addressing him. 19.Mr. Fung claimed that the two Defendants had uttered “the words” deliberately in order to defame him. He claimed he felt his reputation had been damaged and he felt unhappy, troubled and distressed because of it. He had never committed any criminal offence and in order to protect his reputation, he decided to take out the present action against the two Defendants. 20.Mr. Fung attributed the reason for the two Defendants’ action at the 2007 AGM to the differences he and Mr. Pang had with the 1st Defendant’s elder brother Mr. Hiew Mo Sau who was the chairman of the board of SKPLB in the year 2005. In 2005, he and other shareholders including Mr. Pang had taken out an action in the Court of First Instance (case no. HCMP852 of 2005) against the then board of directors for the poor management of the company. As a result, Mr. Hiew Mo Sau resigned from the board of directors of the company. 21.The Hiew family shareholders and the new board of directors elected at the 2006 February AGM under the chairman, Mr. Pang, and Mr. Fung, the vice-chairman, have not been able to see eye to eye for some time. Mr. Fung claimed that the two Defendants knew he did not assault Madam Hiew on 15 January 2007, yet they deliberately referred to that incident at the AGM on 6 February 2007 and slandered him in front of all the shareholders and their representatives at the AGM. The Law 22.At common law, libel is always actionable per se. “Generally speaking, slander is not so actionable and a person defamed can only succeed on proof of “special damage” arising as the direct and natural and reasonable result of the publication of the words. This is so no matter how malicious the publication, how disgraceful the imputation and however likely it is to cause damage to the claimant.” (para. 4.1 of Gatley on Libel and Slander 10th ed.). 23.In four classes of case slander is actionable per se and the claimant’s cause of action is complete upon proof of publication of the defamatory words. They are:
(para. 4.2 of Gatley on Libel and Slander) Findings A. Are the words actionable per se? 24.Mr. Fung did not suffer any special damage, it was not pleaded and there was no evidence that he had suffered any material loss or pecuniary loss capable of being estimated in money as a result of “the words” uttered by the 1st and 2nd Defendants. The Plaintiff’s Counsel Mr. Au Yeung, however, argued that the present case falls into one of the four categories of slander actionable per se, namely “the words” imputed a crime for which the claimant can be made to suffer physically by way of punishment i.e. imputing the criminal offence of assault. 25.It is important to examine “the words” uttered by the two Defendants: the 1st Defendant said “打人都會呀你,阿馮哥” followed by the 2nd Defendant’s “女人添呀”, and the 1st Defendant echoed “女人添呀”. 26.The true and literal translation of those words as pleaded in the Statement of Claim was:- 1st Defendant: “It is also possible for you to hit people , Brother Fung” 2nd Defendant: “even women.” 1st Defendant: “even women.” 27.The law has developed the concepts of two types of meanings in a defamation action (i) natural and ordinary meanings; and (ii) innuendo meanings. The natural and ordinary meaning of words in which the words would be reasonably understood by ordinary people using their general knowledge and commonsense. (see p. 9 of Duncan and Neill on Defamation, 2nd ed.) 28.Mr. Chung, Counsel for the 1st Defendant, submitted that the word 「會」 translated as ‘possible’ also has the meaning of ‘will’ and ‘may’. Therefore, an ordinary person would believe this statement was meant to be ironic and sarcastic rather than confirmative. It follows, there was no evidence that the Defendant had imputed an offence with “the words”. 29.Adopting the first type of meaning i.e. the natural and ordinary meaning for “the words” that an ordinary reasonable person hearing those comments would understand, I find the words connoted an act that will be or may be committed in the future. The word 「會」 has a futuristic meaning of “will” or “may”. The words were plain and simple and carried no innuendoes by themselves, therefore, the second type of meaning does not apply. 30.Para. 4.8 of Gatley on Libel and Slander stated the following:-
It also stated in the same paragraph:-
31.I therefore conclude that “the words” uttered by the two Defendants are not slander actionable per se for they imputed an act which Mr. Fung may commit in future. B. Justification 32.Para. 11.7 of Gatley on Libel and Slander at p. 318:-
33.The Defendant pleaded the defence of justification as an alternative defence. Even if I were wrong and the slander was actionable, “the words” uttered, if according to Mr. Fung’s understanding, were references to the 15 January 2007 incident at the SKPLB office, Mr. Fung would have to show that the two Defendants knew and believed Mr. Fung was innocent of any criminal offence. 34.From the evidence of Madam Hiew and Miss Hiew Po Ling, it is clear that Madam Hiew was taken to the hospital soon after she called the police. At the hospital, according to the medical report of the A&E Department of Tseung Kwan O Hospital (p. 178), the doctor recorded the history and symptoms of Madam Hiew as:-
Under “examination findings”, the doctor recorded:-
Under “provisional diagnosis”, the doctor recorded:
The doctor then prescribed to her medication consisting of painkillers and analgesic balm. 35.There are therefore ample evidence to show that Madam Hiew did suffer injuries to her left shoulder, left upper arm and back; otherwise, the doctor would not have given her medication and recorded those remarks in the medical report. 36.As to the incident at the office of the SKPLB in the afternoon of 15 January 2007, Madam Hiew’s version of the incident differed greatly from Mr. Fung’s version. The evidence from Mr. Pang who was inside the office at the time was ambiguous and did not offer much assistance. Apart from Mr. Fung’s and Madam Hiew’s version of the incident, there were the medical report and the evidence of Miss Hiew Po Ling and her husband Mr. Lam. They claimed they witnessed Mr. Fung rushing into the office from the conference area three times before the incident took place. It is clear to me that Mr. Fung was agitated and angry when he overheard the exchanges between his wife, Mr. Pang and Madam Hiew. As to the two Defendants, they heard only the version of Madam Hiew and learned that she had reported the matter to the police, they obviously believed Madam Hiew’s version to be true. Consequently, at the time they uttered “the words”, I find they truly believed that Mr. Fung did pull at Madam Hiew’s left shoulder causing her injuries. They had also seen the marks left on Madam Hiew’s left upper arm as shown in the photograph exhibited. The marks left on Madam Hiew’s left shoulder clearly showed finger marks from a large hand. Therefore, I find the two Defendants did genuinely believe Mr. Fung had inflicted the injuries on Madam Hiew’s left shoulder on 15 January 2007. Furthermore, on the day of the AGM, the police was still investigating the complaint lodged by Madam Hiew against Mr. Fung. C. Words spoken in heated argument 37.It is the Defendant’s defence that not only did they believe the Plaintiff had assaulted Madam Hiew on 15 January 2007, they also reacted strongly and uttered “the words” at the AGM in the heat of the moment as a result of the chairman of the board’s motion to amend the constitution to extend the term of office of the directors on the board from 1 year to 5 years. 38.I have been referred to para. 308.522 of Halsbury’s Laws of Hong Kong vol. 25 which stated:-
39.Mr. Chung submitted that the atmosphere of the AGM on 6 February 2007 was tense and heated, the Defendants were very angry with the way the current board of directors had conducted the meeting. They believed the Plaintiff who was the vice-chairman of the board of directors had misled the majority of shareholders and monopolized the meeting. Consequently, the 1st Defendant before uttering “the words” were complaining about the manner the current board had conducted the meeting and the proposed extension of the directors’ terms. He was using abusive language repeatedly before uttering “the words”. Therefore “the words” were spoken not intended literally but as insults and should be interpreted as words spoken ironically and sarcastically not to be construed as defamatory. 40.When considering if the Defendants had intended the words to be sarcastic or ironic, I am aware that both of them had referred to the incident on 15 January 2007 which involved Mr. Fung having so conducted himself as to hurt Madam Hiew leaving marks on her forearm that required medical attention and the incident being investigated by the police. I accept the tone and manner when “the words” were spoken would appear to those who knew of the incident that the Defendants were being sarcastic and mocking Mr. Fung. D. Fair Comment 41.At Para. 12.2 of Gatley on Libel and Slander at p. 336 the author said:-
42.“The words” uttered by the two Defendants may be construed as comment rather than reference to the truth as opposed to the plea of justification where the Defendants must show the comment is correct. In a plea of fair comment, the Defendant must show the comment is on a matter of public interest or the public has a legitimate concern. Unlike cases of defamation alleged to have been committed by a newspaper or a broadcaster to the public, in the present case, there is no public concern or public interest involved. E. Qualified Privilege 43.Mr. Cheung referred to Lord Atkinson’s dictum in Adam v Ward [1917] AC 309 at p. 334:-
44.The common law of qualified privilege was reviewed by Lord Diplock in Horrocks v Lowes [1975] A.C. 135 at p. 150 to 151, it was adopted by the Court in Chan Chook Tim v. Wong Kwok Hung [2004] 1 HKC at pp. 34-35:-
45.Mr. Chung asked the Court to consider the following:-
46.Again, the defence of qualified privilege is frequently used in cases against a publication of comments in a newspaper or in a radio or television broadcast. In the present case, “the words” were spoken in a gathering of shareholders and shareholders’ representatives at an AGM of a private company. I can find no justification in the words being uttered on an occasion such as the AGM. The words did not involve any duty, legal, social or moral for the Defendants to make them nor would the person against whom it was made have the corresponding interest or duty to receive it. For the aforesaid reason, I do not think the defence of qualified privilege can be sustained in the present case. Conclusion 47.For reasons set out above, I find the Plaintiff’s claim of slander is not actionable per se because he had failed to show any special damage arising from “the words”. “The words” as interpreted literally referred to a future event, it is yet to take place. Therefore, even though the act if conducted may amount to a criminal offence, an act such as assault which has not yet happened is not a criminal offence. I further find that even if “the words” were actionable, the Defendants have a defence under justification because Madam Hiew did lodge a complaint with the police against the Plaintiff and the case was still under investigation by the police at the time of the AGM. Furthermore, the Defendants did truly believe that the Plaintiff was the culprit that had inflicted the injuries on Madam Hiew’s left shoulder and arm. They were being sarcastic when they referred to it at the AGM. 48.For the aforesaid reasons, I am satisfied the Defendants have a full defence against the Plaintiff’s claim. I therefore dismissed the Plaintiff’s claim against the Defendants. Costs 49.Costs should follow the event. I make a cost nisi order against the Plaintiff to pay the Defendants’ costs to be taxed if not agreed with certificate for counsel.
Parties Mr. Herbert Au-Yeung instructed by Messrs. Hau, Lau, Li & Yeung for the Plaintiff. Mr. Hylas Chung instructed by Messrs. Massie & Clement for the 1st Defendant. Mr. Samuel Chien instructed by Messrs. Massie & Clement for the 2nd Defendant. |