Woo Tak Yan v. Lam Sik Chuen

DCCJ 5381/2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION No. 5381 OF 2009 --------------------

BETWEEN

	WOO TAK YAN (胡德仁)	PLAINTIFF
	And
	LAM SIK CHUEN (林錫川)	Defendant

-------------------

Coram : Deputy District Judge Grace Chan in Chambers (open to public)

Dates of hearing : 23 & 29 March 2012

Date of decision : 5 April 2012

DECISION

Introduction

1.On 21 December 2011, I handed down my Judgment in this action dismissing the Plaintiff’s claim for damages for libel against the Defendant (“Judgment”). The Plaintiff now applies for leave to appeal against the Judgment (including the costs order that was made) to the Court of Appeal.

2.In the decision below, unless otherwise stated, I shall adopt the same abbreviations used by me in the Judgment.

3.The basic facts of the case are sufficiently set out in my Judgment and I do not intend to repeat them in length here. Stated very briefly, the Plaintiff and the Defendant were members of the management committee of the Incorporated Owners of Kai Tak Garden, situate at 121 Choi Hung Road, Kowloon. On 8 September 2011, a no-confidence motion (“Motion”) was posted up at the lobby and distributed to the residents of Kai Tak Garden. The Plaintiff alleged that defamatory words (divided into 3 categories) were contained in the Motion as follows:

Category (1)

“胡司庫在會議中曾向律師，其他委員及房協管理層面前先後確認已繳交管理費，事實上沒有，公然說謊。”

Category (2)

“未有履行司庫職務 (不接收有關文件)”

“本會於本年5月12日致函胡司庫及後6月29日管委會會議上向胡司庫交收有關文件，惟遭胡司庫拒絕。故此，胡司庫至今仍未有接收有關文件。”

Category (3)

“胡司庫曾於本年8月9日凌晨時份以法團名義於各座地下大堂信箱及樓層派發宣傳單張。惟本會從未有此安排，亦對有關單張內容一慨不知。”

4.I found that the Motion did contain defamatory words, but ruled that the Defendant was successful in his defences of justification, qualified privilege and under section 29A of the Building Management Ordinance (collectively “the said Defences”).

Hearing of 23 March 2012

5.In the trial, the Plaintiff was represented by two Counsel. But he acted in person in his application for leave to appeal. He filed an affirmation dated 18 January 2012 (“Affirmation”) to support his application. The Affirmation set out the following points:

(1)  Analysis of evidence had not been done in complete and full.

(2)  The justification had therefore been considered at fault and interpretation of evidence therein was not applied equally on parties;

(3)  The defence of qualified privilege was not held in the absence of duty discharged legally;

(4)  The malice and associated arguments had been considered at fault, otherwise, it should have defeated the qualified privilege if held above;

(5)  The defence of section 29A of BMO was not held since there is no defence of qualified privilege.

6.The Plaintiff did not provide any further elaboration in the Affirmation on how and why my analysis of the evidence was incomplete, and in what way my conclusion on the said Defences was at fault.

7.When invited to give his elaboration, the Plaintiff said that he would need 2 to 3 hours to make his oral submission. Yet the hearing was fixed for 1 hour only.

8.In view of the time constraint, I adjourned the hearing to 29 March 2012. I gave directions for the Plaintiff to file and serve a written skeleton submission (explaining how and why the Judgement was wrong), and the Defendant to file and serve a written skeleton submission in reply before the adjourned hearing of 29 March 2012.

Hearing of 29 March 2012

9.The Plaintiff filed his written skeleton submission on 27 March 2012 consisting of 60 paras. Save  and except paras 1, 2, 56 to 60, the rest of his written submission simply quote the excerpts of various paras of the Judgment without further or clear elaboration, for example, on why such paras were quoted; what was wrong about those paras; and how they were related to his grounds of appeal.

10.As such, the Plaintiff took almost 3-hour to orally elaborate each and every para of his written submission.

11.Further, the Plaintiff added 2 more grounds of appeal (in addition to the 5 grounds of appeal set out in the Affirmation) in his written submission, namely:

(1) the trial and the proceedings was conducted in an unfair and improper manner;

(2)The costs order made was unfair. 

Applicable Legal Principles

12.Section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless this Court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

13.As Fok JA said in the case of Wing Tat Haberdashery Company Limited v. Elegance Development & Industrial Co Ltd, HCMP 357/2011:

“The test of whether an appeal has a reasonable prospect of success under the new statutory provision is the same test as applied before the amendment to Cap. 336, namely whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal (see per Leong JA in Ma Bik Yung v Ko Chuen [2009] 3 HKC 359 at §5). We agree with the view expressed by Her Honour Judge Marlene Ng in Commissioner of Inland Revenue v Nam Tai Trading Co Ltd [2009] 3 HKC 421 at §10 that the new section 63A of Cap. 336 merely codifies the pre-existing threshold test of a realistic or reasonable prospect of success as applied in cases such as Ma Bik Yung. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.

14.In Ho Yuen Ki Winnie v. Ho Hung Sun Stanley, HCMP1009/2009 the Court of Appeal considered an application for leave to appeal under section 14AA(4) of the High Court Ordinance which contains basically the same wording as that of section 63A(2) of the District Court Ordinance. Le Pichon JA (as she then was) stated at para 16 the following:-

“… For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.” (emphasis added)

The 5 Grounds of Appeal in the Affirmation

15.I shall in the below deal with all 5 grounds of appeal set out in the Affirmation altogether, for in substance these grounds boil down to a challenge of the findings of facts made by me.

16.In his oral submission of 29 March 2012, the Plaintiff meticulously commented on a number of paras of the Judgment.  Many, if not all, of the comments were already raised either in the evidence or in the final submission of the Plaintiff through his Counsel, to which I have considered and made a finding on (in so far as the same are relevant to the issues).

17.The Plaintiff repeatedly commented in his oral submission that I have failed to consider and cover all evidence before me in the Judgment. But it is trite to say that a trial judge is not required to recite all evidence that is heard in the trial in the judgment, nor is a trial judge required to deal with every factual dispute if the same is irrelevant to the issues. In any event, I have made this point very clear in my Judgment (para 48 of the Judgment refers).

18.The Plaintiff also pointed out at some length the facts that I have allegedly mistaken or mis-interpreted or wrongly analysed. Some of his points did not fall in line with the final submission given by his Counsel. Take an obvious example, the Plaintiff commented in para 22 of his written submission that I was wrong to say that Law Fu was a security guard by post. Yet Law Fu was named and defined as a security guard in para 33 of the Plaintiff’s final submission.

19.Take another example, the Plaintiff referred to para 146 of the Judgment and said that it was a mistake to say that the Motion was issued by the MC. He said that the truth was: the Motion was not issued by the MC, but by a group of 8 people [who attended the Internal Meeting of 8 September 2009] who abused their power.

20.One only needs to refer to the Statement of Issue in Dispute filed by the parties setting out an agreed list of issues to be determined by this court to find a reply to this allegation of the Plaintiff. The agreed list of issues does not appear to show that the Plaintiff disputed that the Motion was issued by the MC. For convenience, I repeat below issue (1) here:  

“(1) Whether Lam or the IO was the proper defendant to be sued in this action when the Motion, allegedly defamatory, was passed as a resolution of the MC of the IO at the meeting on 16^th October 2009.” (emphasis added)

21.That said, there are still 2 points made by the Plaintiff on mistake of facts that I wish to address here in this decision.

22.The 1^st one concerns the wording of the resolution passed in the 1^st MC Meeting on 20 March 2009. The Plaintiff said that I made a mistake to the wording of the resolution (para 51 and footnote 6 of the Judgement at p18 refer) and thus the conclusion made by me that the defence of justification in respect of Category (3) of the (defamatory) Words (paras 132 to 136 of the Judgment refer) was wrong.

23.The relevant part of para 51 of the Judgment reads:

“It was also resolved that all documents including letters were not to be issued or posted unless with the approval of the chairman of the IO or the approval by the MC in its meeting”(underlined added)

24.The Plaintiff pointed out that the resolution as amended and passed in the 1^st MC Meeting did not include “the approval of the chairman of the IO” and thus I made a mistake on facts.

25.I have to agree that the amended resolution approved in the 1^st MC Meeting did not include “the approval of the chairman of the IO”, though this requirement of the approval from the chairman of the IO was expressly stated in the original agenda item and underlined as a topic in the minutes of the 1^st MC Meeting (p338 of trial bundle).

26.However, whether the resolution of the 1^st MC Meeting contained or not the requirement of the approval of the chairman of the IO will not affect my conclusion reached in para 136 of the Judgment for these reasons. First, even taken away the requirement of the IO chairman’s approval in issuance and posting of all documents, the amended resolution still posed a restriction on the distribution of pamphlets, namely the approval of the MC. Secondly, such restriction (of the required approval by the MC) was known to the Plaintiff at the material time. Thirdly, the evidence (that I accepted) shows that the Plaintiff identified himself as a MC member when he was stopped from distributing promotional pamphlets on 10 August 2009.  The same conclusion that the Plaintiff was effectively trying to abuse his capacity as a MC member to gain a freeway will be still reached.

27.The 2^nd point that I wish to address on relates to paras 77 to 82 of the Judgment in which I mentioned about a “30/4/2009 Letter”; yet the evidence shows that there was no such letter in existence. I would simply say that “30/4/2009 Letter” is obviously a typo which should be read as “16/4/2009 Letter” (in which the hand-over of documents from the Housing Society to the IO would take place on 30/4/2009 – defined by me as “30/4/2009 Hand-over”.

28.Put it simply, I do not think the above so-called mistake(s) of facts would avail the Plaintiff any reasonable prospect of success in his intended appeal.

29.The Plaintiff also submitted that I have unfairly treated the evidence by applying double standard in analysing the evidence of the Plaintiff and the Defendant. He explained that albeit there was insufficient evidence, I still ruled the Plaintiff abused his position as a MC member in distributing the promotional leaflets. Yet, I did not rule that the Defendant had abused his power and had failed to comply with the Building Management Ordinance in dealing with the Motion.

30.I would simply repeat what I have said in the Judgment (paras 132 to 136).  I also repeat what I have observed in Statement of Issue in Dispute and paras 21 and 22 above in this decision.

31.As to the submission that I have made wrong and unfounded conclusion on the said Defences, I say that there is no need for me to repeat here my analysis leading to the conclusion on the said Defences. Suffice to say that I have set out in great details in the Judgment my analysis of evidence in the chronological sequence of all relevant events of this case (see paras 42 to 109 of the Judgment). I have also set out in length my analysis on the each of the said Defences: paras 114 to 136 on justification; paras 144 to 149 and 154 to 166 on qualified privilege and malice; and paras 167 to 170 on section 29A of the Building Management Ordinance.

32.It is well established that an appellate court will not disturb any finding of facts at the court below unless it can be satisfied that the finding is manifestly wrong.

33.In Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336,  Bokhary PJ in para 35 of the Judgment cited from Benmax v Austin Mortor Co Ltd [1995] AC 370 at p 375 the following:

“Apart from cases where appeal is expressly limited to questions of law, an appellant is entitled to appeal against any finding of the trial judge, whether it be a finding of law, a finding of fact or a finding involving both law and fact. But the trial judge has seen and heard the witnesses, whereas the appeal court is denied that advantage and only has before it a written transcript of their evidence. No one would seek to minimize the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appellant could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness’s memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such consideration.”

34.The learned PJ then at para 41 of his Judgment went on to say:

“On an appeal against a judgment of a judge sitting alone” ¾ Lord Sankey LC said in Powell v. Streatham Manor Nursing Home[1] at p.249 ¾ “the Court of Appeal will not set aside the judgment unless the appellant satisfies the Court that the judge was wrong and that his decision ought to have been the other way”.  I would reinforce that by respectfully adopting what Lord Hoffmann said in Biogen Inc v. Medeva Plc [1997] RPC 1 at p.45 and repeated in Piglowska v. Piglowski at p.1372 D-F:

"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

(emphasis added)

35.In a nutshell, I am of the view that the Plaintiff has failed to show that I was plainly wrong in the findings of fact. I thus cannot see any reasonable prospect of success on these appeal grounds.

Unfair and Improper Trial and Proceedings

36.This ground is further divided into 2 aspects by the Plaintiff, being (1) unfair and improper handling of the pleadings, evidence and submission; and (2) unfair and improper proceedings.

37.Sub-ground (1), the Plaintiff submitted, meant that (i) it was unfair of me to apply double standard to the Plaintiff’s and the defence evidence; (ii) it was improper and wrong of me to accept the evidence of the defence; (iii) it was improper of me to arrive at certain findings when there was no basis to so find. I think I have already sufficiently dealt with these points in the preceding paras of this decision.

38.By sub-ground (2), the Plaintiff referred to what happened during trial. Some defence witnesses were found to be sitting inside court when the Plaintiff and the Defendant were giving evidence. And somebody from the Defendant’s side was found taking notes during the trial. The Plaintiff complained that I have not made any reference or given any consideration to these episodes in the Judgment.

39.I recall (and the records also show) that the evidence of this case started on the 2^nd day of the trial. On the 2^nd day, the Plaintiff (just started to give his evidence in the witness box and was only up to the point when he confirmed the truth of his witness statement and agreed to adopt the same as evidence in chief) complained about the presence of defence witnesses sitting in court. The defence indicated that Mak (the chairlady of the IO) was in fact sitting in court, but not the other defence witness such as Lui (the secretary of the IO) and Law Fu.  Argument was made by Counsel for both sides on whether Mak should be sitting in court while the Plaintiff was giving evidence. At the end, I directed that she should wait outside court. I can see no prejudice caused to the Plaintiff in this episode.

40.Then, in the same afternoon, I found out that somebody sitting in the public gallery around the Defendant seemed to be taking note and passing the note around. I thus made enquiry with Counsel for the Defendant. Upon enquiry, it was found that the note was just a reminder to somebody from the Defendant’s camp to take medicine. Counsel for the Defendant also undertook to make sure that no further note-taking would be made by the observer from the Defendant’s camp. I cannot see anything suspicious or prejudicial that would warrant any discussion in the Judgment.

41.On the 4^th day of the trial, the Defendant started to give his evidence at about 9.35 am. At about 10.50 am, the Plaintiff, through his Counsel, complained that Mak was sitting in court. Counsel for the Defendant said that there was mis-understanding to the direction of the court. The defence thought that Mak was not allowed to sit in court only when the Plaintiff was giving evidence. The defence made it clear that Mak entered the courtroom at 9.40 am only and went out for 10 minutes in between (which meant she stayed in court for roughly an hour).

42.In response, Counsel for the Plaintiff said that he would not make an issue of Mak’s presence in court unless he had such instruction to do so, but he dared say that Mak’s presence would not affect the evidence that much. I totally agree with this fair comment of Counsel for the Plaintiff.

43.It is also pertinent to point out that no submission was made on this sub-ground (2) in the final submission of the Plaintiff.

44.Frankly, I fail to see any reasonable prospect of success on this ground.

Unfair costs order

45.The Plaintiff says that since I have ruled that the Words were defamatory, I should not have ordered costs against him.

46.I cannot see why the Defendant, having found to succeed in all of the said Defences in this case, should not be allowed costs of the case, as costs should usually follow the event. There is plainly no reasonable basis for the Plaintiff to raise this point.

Conclusion

47.I do not find any reasonable prospect of success in any of the appeal grounds put forward by the Plaintiff in the Affirmation, written or oral submission. There is no other reason which in the interests of the justice that the appeal should be heard.

48.In the circumstances, I refuse to grant leave to the Plaintiff to appeal and dismiss the Plaintiff’s summons filed herein on 18 January 2012.

49.Costs should normally follow the event. I thus order that the Plaintiff shall bear the Defendant’s costs of and incidental to this application, such costs is to be taxed if not agreed.

Grace Chan Deputy District Judge

The Plaintiff present and acting in person

Mr Shum Cheuk Pan of Messrs Woo, Kwan, Lee & Lo for the Defendant

[1][1935] AC 243