Li Ching and Others v. Koo Too Shing and Others
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 1004 OF 1969 ________________________
Coram: Pickering, J. Date: 26th May, 1972. ________________________ JUDGMENT ________________________ 1. One can appreciate the dilemma of counsel who are stabbed in the back by their own lay client – if only because, in that position, the knife is so difficult to remove. 2. This is but one aspect of a many-faceted case but it is an unusual one and I will deal with it first, after which I must deliver a reproach to both firms of solicitors and to all three counsel engaged in this case before turning to the substance of the action, which is one for libel. 3. The seven plaintiffs sue for libel against the five defendants who in turn counterclaim for libel against the plaintiffs. The story revealed is one of strife between the members of a Clansmen’s Association in Yuen Long in the New Territories. 4. The conflict has raged over nine weeks with the protagonists displaying great bitterness towards each other. Face and pride have held the stage whilst commonsense has been relegated to the background by men who have demonstrated that they are possessed of more money than goodwill; this, as I am now informed, against the advice of counsel on both sides and also despite an early admonition from the Bench (freely agreed to by Mr. Bernacchi, who led for the defence) that the only persons likely to profit from this unhappy mutual tantrum were the lawyers involved in the case, whose costs and fees would inevitably be very heavy if the cross-actions were pursued to the bitter end. 5. But I must return to my analogy of the stab in the back. 6. On Sunday the 26th of March, during the course of the trial, two incidents occurred which were gravely to embarrass defence counsel. These events came to light on the morning of Monday the 27th, when a Mr. CHUNG Pui-yiu (P.W.12) was giving evidence. From January 1965 to May 1969 this witness had been the Treasurer of the Association but it was his complaint that during that period he had never been allowed to perform the functions of Treasurer, the accounts throughout, and especially those of certain chit funds and of a Literacy Class run by the Association, being kept respectively by a Mr. CHUNG Chun-kau, the Hon. Secretary of the Association, and a Mr. CHEUNG Pui-lam. The Treasurer’s evidence was that he had complained to both these gentlemen about not being permitted to handle the accounts. 7. The witness went on to describe how at about 1p.m. on Sunday, the previous day, Mr. CHUNG Chun-kau had called upon him at his shop in Yuen Long and said, “When you go to court as a witness, you can say that it was you who asked me to take care of the accounts for the Literacy Class and the daily and monthly chit funds.” The witness’ reply was, “As I am a witness I have to tell only the truth.” At this Mr. CHUNG Chun-kau left. 8. Subsequently, at about 2 p.m. on the same day, the witness received a telephone call from the 1st defendant who, for the past ten years has been Chairman of the Executive Committee of the Association and who may fairly be described as the person having the paramount influence in the Association. This telephone call ran, “Long time no see, boy. It will be all right when you appear in court next week that it was you who entrusted CHUNG Chun-kau to take charge of the accounts of the daily and monthly chit funds and the Literacy Class.” The witness’ reply was, “I am to tell only what I know,” whereupon the 1st defendant rang off. 9. This witness became confused in cross-examination about these incidents and agreed with defence counsel that the gist of both conversations was that he should stick to “the truth of having left the accounts of the chit funds to CHUNG Chun-kau.” In re-examination the witness contradicted himself as to whether the word “truth” had or had not been used in these two conversations. It was because I thought his evidence confusing that, at the close of his re-examination, I asked him to tell me as closely as he could remember, the actual two conversations and his version of them I have related above. 10. When the 1st defendant and Mr. CHUNG Chun-kau respectively came into the witness-box, their counsel, no doubt wisely, chose discretion as the better part of valour. There was a resounding silence about these incidents. Counsel for the plaintiffs for his part did not cross-examine about them; he had been presented with an unexpected bonus and saw no need to gild the lily. 11. Yet the hapless defence counsel could not wholly ignore this evidence as though, if they closed their eyes to it, it would go away. They were, inexorably though no doubt reluctantly, bound to refer to it in their final addresses. 12. They did their best but the knife was firmly implanted. 13. Mr. Liu said that if the court were to criticize CHUNG Chun-kau for approaching the other side, criticism might be confined to saying that he was unnecessarily keen to seek corroborating evidence of “the facts.” It was common ground that this witness CHUNG Pui-yiu had at one time donated $500 towards the defendants’ expenses of this litigation and the defendants did not now know who was friend or foe. No inducement had been offered to misrepresent any facts and the court might find it in its generosity and tolerance to forgive what Mr. Liu described as “this layman’s approach”. Mr. Bernacchi, stepping in where angels might have fear to tiptoe, suggested that his junior had made rather heavy weather of this matter of the approach to a plaintiffs’ witness which was, in any event, made before the witness gave evidence. 14. Let there be no mincing of words. This was attempted subornation of perjury and no amount of glossing over can remove the stain. The accounts, and the manner of their keeping, figured largely in the alleged libels and in the evidence and this cannot be regarded as an approach to a witness upon a matter which the defendants thought merely peripheral. 15. I must now approach an unpleasant but necessary task. I am constrained to comment, reluctantly but firmly and seriously, upon the conduct of all three counsel and both firms of solicitors in the case, regarding the estimate of the length of time required for the hearing as contained in the Application to Set Down for Trial. Under O.34 r.8 (2) it is the duty of all parties to an action entered in any list to furnish without delay, to the officer who keeps the list, all available information affecting the estimated length of trial. The estimate in this case was ten days; the hearing occupied thirty-eight working days. 16. As early as on the second day of the trial leading counsel for the Defence informed my court clerk that an additional two months might well be required for the trial; this was not a formal notification to the court but a mere casual remark during the morning interval; yet the fact that this need was apparent at such an early stage, indicates that the estimate given was unrealistic from the beginning and that the clerk of court could have been given vastly more accurate information before the hearing and so been enabled to avoid disruption of his lists. It goes without saying that estimates so wildly inaccurate affect the working not only of one judge’s court but, by a dominoe-process, that of all the courts and complicate immeasurably the task of the clerk of court. 17. In fact the clerk of court set the case down for ten and a half days and at the expiration of that period, when the case for the plaintiffs was still incomplete, I was obliged to turn to other cases in my calendar and to attend a sessions in Brunei. At the expiration of the initial ten and a half days counsel visited me in my chambers and asked that the months of April and May be reserved for the resumption of this case since towards the end of March, the first available period in my diary, two of the three counsel were engaged in other courts. This request I refused partly because I am to leave the Colony on the 1st June and would have had no time to write this judgment had the case occupied all of April and May, and partly because it seemed to me desirable, in the interests of memory, that the earliest available dates be adopted for the continuation of the hearing. In the result I set March the 20th for the resumed hearing. This date was met with a letter from Messrs. H.M. So & Company, who instructed Mr. Robert Wei to my court clerk saying that both Mr. Wei and Mr. Bernacchi were engaged in other courts at the end of March and asking if the date of the 20th of March could be altered. This request I also refused. If counsel had to abandon certain briefs by virtue of the resumption of this case on March the 20th it cannot be said that they had anybody to blame except themselves. 18. I mention this matter at some length because this is by no means an isolated instance. In a recent case, O.J. 2350 of 1971, my brother Huggins had occasion to comment strongly upon the fact that whereas the estimate of the length of that trial provided by the legal advisers had been two days, the hearing had in fact occupied seven and a half days – again necessitating an interrupted trial; and it is within my knowledge that my brother Li has just concluded the hearing of a case the estimated length of which was given as eight days. The evidence and speeches in that case occupied twenty-seven and a half days. 19. The judges are aware that the task of estimating the length of a trial is a difficult one but divergencies of the order which occurred in these recent cases demonstrate that the fault lay not in miscalculation, but in a complete failure on the part of all concerned to make any responsible attempt at calculation. I trust that offenders on both sides of the profession will, in future, make serious efforts to estimate the time required for the trial of any action in which they are engaged. This is a statutory requirement, not a mere courtesy to the Court and if negligence of the order inherent in these three cases persists, it may be necessary to consider the imposition of penalties, perhaps related to fees and costs, upon all concerned. I have the authority of the Chief Justice for that last remark. 20. In O.J. 2350 of 1971 Huggins, J. also commented on the fact that he lacked the assistance of a court reporter since none was available. In the present case that has been my experience over thirty-eight days, a fact which underlines the urgent necessity for recruitment to the ranks of court reporters. 21. I turn to the substance of the action and doubtless, the documents which contain the alleged libels will be more readily comprehensible if, before setting them out, I relate something of the history and the activities of the Association. 22. The Wai Chow Yuen Long Residents’ Association was formed in 1957 with the object of promoting the welfare of natives of Wai Chow in Kwangtung Province who were also residents of Yuen long. Elections were held in 1958; there was no canvassing for office and the 1st defendant was elected Chairman of the Executive Committee, there being two committees, one Executive and one Supervisory. In 1958, however, the 1st defendant did not take up the post of Chairman of the Executive Committee which post was filled by the 1st plaintiff who, together with the 2nd and 4th defendants and a certain CHAN Chai-wah, had been appointed a Vice- Chairman of the Executive Committee. The 1st defendant, on declining to take up his post as chairman of the Executive Committee, also became one of the four Vice-Chairmen of that committee. 23. There was another election in 1959 at which, again, there was no active canvassing for votes for office and the result of this election was that the 1st plaintiff remained the chairman of the Executive Committee with the 1st and 2nd defendants and two other gentlemen as Vice-Chairmen. That is to say the 1st plaintiff and the 1st defendant, in 1959, kept their 1958 posts. 24. In 1962 there was a further election in which some canvassing for votes did take place. The result of this election was that the 1st defendant was elected Chairman of the Executive Committee and that the members of that Committee came primarily from his followers in the Association. The 1st plaintiff was on this occasion elected Chairman of the Supervisory Committee. 25. Further elections took place in 1964, 1967 and 1969 and the result of each of these elections was that the 1st defendant retained his post as Chairman of the Executive Committee and has thus been in that office since 1962. The 2nd and 3rd defendants have, at all material times been Vice-Chairmen of that Committee and the 4th and 5th defendants respectively Chairman and Vice-Chairman of the Supervisory Committee. 26. Whilst in the 1962 elections, the 1st plaintiff was elected Chairman of the Supervisory Committee, in 1964 he was elected to neither committee. Following the 1964 elections he and others sued all the members of the Executive and Supervisory Committees for an injunction to restrain the defendants from taking office in the Executive and Supervisory Committees, for a declaration that the election was null and void, for an order setting it aside and for a fresh election. In that action the plaintiffs alleged election rigging. The action was compromised upon terms which included the nomination of the 1st plaintiff to the post of Honorary President of the Association. 27. In the 1967 and 1969 elections the 1st defendant was, as I have already observed, re-elected Chairman of the Executive Committee but in neither of these elections was the 1st plaintiff elected to any post. The 2nd, 3rd and 7th plaintiffs were, at one stage, voted on to the Executive Committee and although in the 1969 elections the 7th plaintiff either lost or did not stand for this position, the 2nd and 3rd plaintiffs were, in March of that year, re-elected to that Committee. As will be seen, the 2nd and 3rd plaintiffs were thus members of that Committee at the date of all the libels alleged. 28. In 1959 the Association had paid a 50 per cent. deposit upon a flat which was to be used as the Association’s premises and, rather more than a year later, when the building was completed, moved into these premises. The remaining 50 per cent. of the purchase price was discharged by instalments over the years. This purchase was made during the period of office of the 1st plaintiff as Chairman of the Executive Committee and, the Association having little in the way of funds, the decoration of the premises was paid for by means of an interest-free loan from the 1st defendant. 29. Prior to the 11th of November 1964, the Association was unincorporated and in that form had been carrying on various activities designed to raise revenue; these included the operation of a Literacy Class for the purposes of teaching children to read and write and two Daily and one Monthly Loan Associations or “chit funds.” The unincorporated Association derived income from the Literacy Class by way of the excess of revenue (in the form of monthly fees charged to pupils) over expenditure and from the Daily and Monthly Loan Associations by way of a service charge for collecting the daily and monthly contributions of members of those funds. 30. In about 1964, the Association wished, with the assistance of a grant of land and a 50% subvention from the Government, to build a public school. Since no grant of land would be made to an unincorporated association, it was decided to turn the Association into a Limited Company and this was duly effected on 11th November 1964. The school was duly completed and is now in operation. It is a public school, which means that it is open to all and not merely to children of members of the Association. The same remark applies to the Literacy Class. 31. After the incorporation of the Association the revenue-raising activities which I have described, were operated, not by the Limited Company, but by a “management section” which was composed of all members of the Executive and Supervisory Committees although its actual working was the responsibility of only some seven or eight of such members. The reason for the separation of the activities of the Literacy Class and the chit funds from the Limited Company was, according to the defendants, that there were doubts as to the legality of the chit funds or Loan Associations, the activities of which were thought not to be covered by the Objects of the Limited Company; again the Literacy Class was operated in premises and under conditions such as to render it unregistrable either by the Education Department as a kindergarten or by the Social Welfare Department as a nursery. Whilst having had no apparent qualms about operating this class as on unincorporated association, the members, once incorporation had taken place, appeared to be squeamish about letting the Limited Company appear to be associated with it. 32. It is the plaintiffs’ case that although these activities were, on the face of it, operated by the management section, that section was in fact an extension of the Limited Company. 33. Although the Memorandum and Articles of Association of the Limited Company provided for separate meetings of the Executive and Supervisory Committees, no such separate meetings were ever held and in their place there were joint monthly meetings of the two Committees. At these meetings accounts, in the form of monthly accounts of the management section were presented to the members of the two Committees as also were monthly accounts of the Limited Company. In practice the profits derived from the management section were largely transferred to the Limited Company but the accounts of that Company do not contain any apparent reference to such income, such amounts as were transferred to the Limited Company being included in the fictitious name of “donations”. It is disputed whether or not there ever were any actual personal donations from members of the Executive and Supervisory Committees but the accounts certainly reveal that monthly sums transferred from the management section to the Limited Company were credited in that Company’s accounts in the form of small personal donations from large numbers of members of the two Committees and the total of these donations usually amounted to the sum transferred for the month to the Limited Company by the management section. This tedious method of concealing the true source of the Limited Company’s income by enumerating many small and, at least mainly, fictitious donations from members was later abandoned in favour of a single entry “donation from the Management Section”. It was not originally apparent in the annual accounts delivered to the Registrar of Companies that the income of the Limited Company was in fact derived from the activities of the management section. 34. At the joint monthly meetings of the two Committees each member had a file which contained (inter alia) the monthly statement of accounts of both the management section and the Limited Company but members were not permitted to take these files away from the premises of the Association where they remained between meetings. 35. A further source of income to the management section was a commission on contributions collected in connection with a longevity fund. There exists in the Colony a main Association of the Wai Chow clansman and the Yuen Long Association was only a branch Association; other branches also exist in the Colony. The main Association operated a scheme under which members who wished to join in, each contributed one dollar upon the death of any other member of the scheme and from the total sum collected a lump sum was donated to the relatives of the deceased member. The main Association considered it more economical to pay a commission to a member of the branch Association in Yuen Long for the collection of these contributions in that area, rather than to employ somebody specifically for that purpose. Mr. CHUNG Chun-kau, who was at that time clerk to the branch Association and, after its incorporation as a Limited Company its Honorary Secretary, collected these donations and received for his services a commission of twenty per cent. of the amount collected. This system continued until approximately December 1967 when, because the amount of the commission was said to have increased, it was agreed that Mr. CHUNG Chun-kau should retain seventy per cent. of the twenty per cent. commission, the remaining thirty per cent. thereof being paid to the management section. From that date such payments are reflected in the accounts of the management section. 36. In about spring of 1969 the manner in which the business of the management section was being conducted gave rise to doubts and suspicions in the minds of some of the members. They considered, rightly or wrongly, that they were unable to check the accounts and whereas under article 76 of the Articles of Association of the Limited Company, a printed copy of the accounts should have been sent to each member seven days before each annual general meeting no accounts, they claim, had been sent out and indeed the so-called annual general meetings were only held every second year. Members were also dissatisfied because no bank account existed in the name of either the management section or the association. These members suspected that a substantial part of the income had not been applied for the benefit of the Limited Company. These suspicions were not allayed when in March or April of 1969 a member, Mr. Cheung Sai-keung (P.W.10) asked the 1st defendant for the accounts of the management section for the past four years. This gentleman had been a Vice-Chairman of the Supervisory Committee during 1964, 1965 and 1966 and of the Executive Committee in 1967 and 1968, and considered that as such he was entitled to have that copy of the accounts which, during those years, had been prepared in his name for his use at monthly meetings of the joint committees. 37. The 1st defendant refused to let Mr. Cheung have his own copy stating that the accounts could not be taken out of the premises of the Association and subsequently instructed Mr. CHUNG Chun-kau that Mr. Cheung was not to be given a copy of the accounts. A quarrel ensued, unpleasantries were exchanged and the matter ended in the police station without Mr. Cheung ever receiving a copy of the accounts. He subsequently received from the messenger of the Association the file of a deceased member of one of the Committees and it was partly on the basis of a study of the accounts contained in that file, that the suspicions of the plaintiffs crystallised. 38. The 4th plaintiff, WONG Sai-kit, also claimed that in May or July of 1964 he demanded accounts from the 1st defendant who refused them. 39. Accordingly, in about mid-April 1969, the plaintiffs and other members of the Limited Company held a series of meetings some of which were attended by Mr. CHEUNG Sai-keung (P.W.10) and in all, including Mr. Cheung, some 53 persons attended one of more of these meetings. The 52 (that is, excluding Mr. Cheung) instructed the plaintiffs, as their representatives, to instruct Mr. D.B. Gunston, solicitor, to make representations in writing to the 1st defendant and, as a result, on the 25th April 1969 Mr. Gunston wrote a letter on their behalf to the 1st defendant, the Chairman of the Executive Committee, conveying some of the grievances of the 52 and demanding explanations of various matters and in particular of the accounts. (Document 4 in the agreed bundle). To this letter to the 1st defendant, as Chairman of the Executive Committee of the Association, replied on the 3rd May 1969, describing the allegations as unfounded, groundless and fabulous and stating that if Mr. Gunston’s clients intended to resort to law he was prepared to accept that challenge. (Documents 5 and 6). 40. Thereupon the seven plaintiffs, together with two other gentlemen who are not parties to this action, wrote to various authorities such as the Education Department, the Registrar of Companies, the Police and the New Territories Administration stating that they were dissatisfied with the management of the Association by the 1st defendant and that they had written to him through Mr. Gunston but had received no satisfactory reply. (Document 179 dated 15th May 1969). Photostatic copies enclosed with these letters to Government departments included:-
41. In addition the nine requested the Companies’ Registry to refer their complaint to the police for consideration of investigation. (Document 180). Finally they instructed other solicitors (not Mr. Gunston) to write to the Financial Secretary to apply, under s.142 of the Companies Ordinance, for the appointment of an Inspector to investigate the affairs of the Company. This instruction was carried out on June 3rd 1969. (Document 9). 42. In May 1969 the 52 also resolved to write direct to the 1st defendant and Mr. CHEUNG Sai-keung drafted a letter which was approved by all seven plaintiffs, copied by the 7th plaintiff and sent to the 1st defendant by post. (Document 7). The letter was signed by the same nine individuals, that is, it was signed (inter alia) by the seven plaintiffs. Subsequently each of the 52 was given a copy of this letter and, according to the defendants, publication was not confined to the 52. The defendants allege that this letter is libellous and reflects on each of them in their official capacity in the Association. 43. The copies of the plaintiffs’ allegedly libellous letter sent to the 52 were each accompanied by a slip bearing certain words addressed to the recipient of the copy. These were: “with regard to the document which you have entrusted to us for the correction of the Association’s affairs, documents will be duplicated and continuously supplied to you and we do hope the members of the Association will understand. And also”. These words appear at the end of Document 8 which is an alternative translation of Document 7. Nothing turns upon the alternatives except the existence of this slip. There is some dispute as to whether the document actually received by the 1st defendant was also accompanied by such a slip. 44. However, that may be, on receipt of the letter the 1st defendant had copies of it made and caused these copies to be shown both to members and, according to the plaintiffs, to non-members. Each copy was accompanied by a copy of a circular letter signed by the defendants and it is this circular which is the first subject of the plaintiffs’ claim. (Document 18). 45. On or about the 19th June 1969 the 1st, 2nd and 3rd defendants in their respective capacities as Chairman and Vice-Chairmen of the Executive Committee circulated a notice to all the other members of that Committee. This letter is the second subject of the plaintiffs’ claim. In it the same allegation is made, in respect of the 1st plaintiff, namely that he, because of his failure in the previous election, intended to damage the reputation of the Company. The letter gave notice of an Extraordinary Executive Committee meeting convened for the purpose of considering the expulsion of the 1st plaintiff. 46. On the 27th of June 1969 the Executive Committee, having previously written to the 1st plaintiff requesting him to explain his conduct within a period of fourteen days, a challenge which was not taken up, passed a resolution expelling him from the Limited Company because of “unworthy conduct” and on the following day they wrote to the plaintiff informing him of his expulsion. On that day an announcement appeared on the front page of the newspaper Kung Sheung Yat Po notifying the public of the 1st plaintiff’s expulsion from the Limited Company. 47. It is the plaintiffs’ case that their suspicions have been confirmed as a result of subsequent investigation and study of books, documents and accounts disclosed by the defendants in these proceedings and they allege that the accounts show false entries and fictitious loans. 48. These investigations were carried out by the 6th plaintiff who described himself as a book-keeper, although it became clear that this occupation was merely ancillary to his foremanship of construction sites and was conducted in the evenings. The witness’s experience in book-keeping had been thus obtained and he had no other experience of book-keeping and no accountancy training. He agreed that his education was such as barely to allow him to read and understand the newspapers and that there were many Chinese characters which he could not understand. He painted a considerable picture of disinterest in the affairs of the Association which was oddly at variance with the fact that he, of all the plaintiffs, had concerned himself, without remuneration and for a period of more than a month in an investigation of Exhibit E (a file of a deceased member containing monthly accounts of the Management Section of the Limited Company obtained by CHEUNG Sai-keung (P.W.10) from the caretaker of the Association’s premises) and of the documents disclosed upon discovery by the defendants. The witness’s qualifications for undertaking the major accounting research into the plaintiff’s case were hardly adequate, and much of the material which he regarded as suspicious is no doubt explicable by the unorthodox system under which the Limited Association endeavoured to divorce its real activities from that Association by operating them under a separate Management Section. At the same time, the 6th plaintiff’s researches did reveal matters which were unorthodox and unconstitutional such as the payment of salary to a member of the Executive Committee in defiance of the Memorandum of the Limited Company. 49. Against this background of events I turn to the contents of the allegedly libellous documents. The defendants’ circular letter which the plaintiffs allege to be libellous was in the following terms: -
50. The words complained of are those underlined and the plaintiffs claim that these words in their natural and ordinary meaning meant: -
51. It is the 1st plaintiff’s further complaint that on or about the 19th of June 1969 the 1st, 2nd and 3rd defendants falsely and malicious wrote and published to all the members of the Executive and Supervisory Committees of the Association the letter to which I have already referred as convening an Extraordinary Executive Committee meeting and which is translated as follows:-
52. The plaintiffs allege that this letter in its natural and ordinary meaning meant:-
53. By way af counterclaim the defendants allege that on or about the 6th of May 1969 the plaintiffs falsely and maliciously wrote and published or caused to be written and published of the defendants and each of them in the way of their office in the Association, in a circular letter sent to the defendants and other members of the Association words in the Chinese language which are translated as follows:-
54. The passages complained of in that document are likewise underlined. 55. The defendants say that by these words the plaintiffs refer and were understood to refer to the defendants in the way of their respective offices in the Association and were understood to mean
56. The defences to both claim and counterclaim are, perhaps predictably, very similar. The defendants plead the rolled-up plea, rely on section 27 of the Defamation Ordinance and plead justification coupled with reliance on section 26 of that Ordinance. To this they add a plea of qualified privilege and finally deny that the words complained of are libellous per se and/or in their natural and ordinary meaning. They also allege express malice. 57. The plaintiffs allege express malice on the part of the defendants, deny that the words complained of are capable of bearing any of the meanings alleged by the defendants or any other defamatory meaning, put forward the rolled-up plea to which they add justification, and also rely on sections 26 and 27 of the Defamation Ordinance. Inevitably qualified privilege is further pleaded. 58. Let me say at once that neither the plea of qualified privilege nor that of fair comment upon a matter of public interest can be sustained by either side in this case. The question of public interest is one upon which there is not a great deal of authority and defence counsel sought to rely upon the case of South Hetton Coal Company Limited v. North Eastern News Association Limited ([1]), in which it was held that the sanitary condition of a large number of cottages let by the proprietors of a colliery to their workmen was a matter of public interest, the comment upon which was not libellous. In that case the population housed by the Company was in excess of two thousand and the sanitary condition of the dwellings of such a large number of persons was clearly a matter of public interest. 59. The South Hetton colliery case was approved in 1969 in London Artists Limitedv. Littler ([2]) in which case, although the plea of fair comment failed, it was considered that comment on the possibility of the withdrawal of a play running successfully in London, was a matter of public interest. 60. There is a vast difference between these two cases, which were the only assistance counsel could offer me on this subject of public interest, and the present case. In each instance of an alleged libel in which this defence is raised, the burden is upon the defendant to show that a matter of public interest has arisen for comment. In my view there is no comparison between the cases quoted and the affairs of this tightly-knit local Association of clansmen with its very limited membership of two hundred odd and its inward looking concern with its own members. The affairs of the Association are of supreme indifference to outsiders and I hold that there is no question of public interest involved and that the defence of fair comment is inapplicable and cannot be raised by either party. 61. Qualified privilege is not a plea which is open to the plaintiffs. Their contention is that their circulation of the letter which they had addressed to the 1st defendant was confined to the fifty-two members who had held a series of meetings in connection with the affairs of the Association and that these fifty-two had a common interest in the subject matter of that letter. This was true only to a very limited extent and it became apparent very early in the trial that the plaintiffs could not sustain their claim to have been authorised by a power of attorney, from the fifty-two, to seek production of accounts of the Association “and to take all steps necessary to put the affairs of the Association in order.” The alleged power of attorney was never produced and the 1st plaintiffs admitted that his written mandate from the 52 was to request production of accounts. Various of the fifty-two (D.Ws. 12 to 17) also gave evidence that their authority to the plaintiffs had been merely to request production of accounts. Clearly, the plaintiffs’ letter of which the defendants complained goes far beyond that, raising as it does, allegations of financial deprivations, the running of a black market school, general complaints as to the method of running the organization and to the condition of the Association, of using official duties to accomplish self interest, and of members of the Executive and Supervisory Committees holding stipendiary posts – none of which were matters authorised by the fifty-two as the subject of investigation and complaint by the plaintiffs. It may be said that all these matters were matters of interest to the fifty-two since they were members of the Association but that is not the basis of the plaintiffs’ claim to qualified privilege. Had it been, the plaintiffs would no doubt have circulated not merely the fifty-two but all the members of the Association. The basis of the plaintiffs’ claim to qualified privilege is that the fifty-two had authorised them to request production of accounts and to take all such measures as might be necessary to put the affairs of the Association in order. The former mandate was a valid one but the second never existed so that much of the material contained in the plaintiffs’ letter (Document number 7) was not the subject of qualified privilege between the plaintiffs and the remaining members of the fifty-two. If that view be wrong, and it can be argued that although the plaintiffs exceeded their mandate they were still concerning themselves with the affairs of the Association of which the fifty-two were members who therefore had a common interest in all such affairs, the plaintiffs still sub their toes against the fact of publication to a non-member. 62. Whereas the defendants did not at first seek to reply upon any allegation of publication of the plaintiffs’ letter to non-members of the Association, as a result of amendments to the plaintiffs’ pleadings, sought and obtained by Mr. Wei at the close of the evidence, amendments were also allowed to the defendants’ pleadings and the defendants do now rely upon publication of the plaintiffs’ letter to non-members as defeating the plaintiffs’ plea of qualified privilege. Specifically they rely upon publication to a Mr. WONG Tim, a former member of the Association, and to Mr. TANG Tung-kwok who described himself as being not a member of the Association but an adviser to it. Precisely what this anomalous-sounding status involves, I do not know but presumably it carries with it some duties towards the Association and, that being so, I incline to the view that publication by the plaintiffs to Mr. Tang was privileged. 63. It is unnecessary to pursue that issue in regard to Mr. Tang however since it is rendered somewhat academic by my finding, as I do, that there certainly was publication to Mr. WONG Tim. Mr. Wei argued that such publication had been insufficiently proved, and that in any event, as a former member, Mr. Wong should be regarded as an interested person covered by the plea. With that latter contention I am unable to agree for Mr. Wong had ceased to be a member of the Association at the time of its incorporation as a Limited Company which was in November 1964, that is, some 4½ years before the publication to him. He cannot conceivably be regarded as a person having an interest within the meaning of the law relating to qualified privilege. 64. As to Mr. Wei’s former argument that there was no sufficient evidence of publication to Mr. WONG Tim, this witness was very explicit that in the month of May, 1969, the 5th plaintiff, in the Lung Cheung Tea House in Yuen Long, had handed to him a copy of the plaintiffs’ libellous letter. In examination-in-chief he said that the 5th plaintiff had a bundle of documents, which the witness demonstrated to be about four inches thick, in his hands and distributed one of the documents to each person present. In cross-examination he retracted the suggestion that he had seen a copy distributed to each person present, but was emphatic that he himself had been given a copy by the 5th plaintiff. Mr. Wong Tim is only partly literate and he took the copy to the headquarters of the Association where, he says, it was explained to him by Mr. CHUNG Chun-kau and where the messenger of the Association wrote upon it the characters in Chinese “at the Lung Cheung Tea House from Kwok Tung to”. That sentence continues with the words “Wong Tim”, which Mr. WONG Tim said were in his own hand. Kwok Tung is, of course, the name of the 5th plaintiff. The 5th plaintiff denied handing out a copy of the plaintiffs’ letter to Mr. WONG Tim in the Tea House and admittedly, in his evidence, Mr. Wong got the name of the Association’s messenger wrong. He was however quite emphatic about this matter and, moreover, the copy which he claims to have had handed to him has been produced in court bearing his signature inscribed thereon almost simultaneously with his acquisition of the document. I have no hesitation in finding publication to Mr. WONG Tim proved and this in itself is sufficient to destroy any plea of qualified privilege by the plaintiffs. 65. For the above reasons I hold that neither the plea of qualified privilege nor that of fair comment on a matter of public interest is available to the plaintiffs. 66. The defendants also allege that the plaintiffs were activated by express malice. It must be acknowledged that this was something of an afterthought coming as an amendment to the defence and counterclaim at the conclusion of all the evidence. I do not find the existence of express malice on the part of the plaintiffs. It is true that they wrote to various Government departments complaining about the administration of the Association, and did this before they wrote Document 7, the letter to the 1st defendant which the defendants allege to be libellous. It is also to be remembered, however, that the letters to the Government departments were written only after a formal solicitor’s letter had been addressed, on behalf of the plaintiffs, to the 1st defendant and had met with a blank refusal of any explanation of the matters upon which explanation was sought. The plaintiffs, who may have been muddle-headed about their complaints but were basically genuine in their concern for the affairs of the Association, were at that stage, justified in seeking the adjustment, on proper lines, of those affairs by Government departments since it was apparent that the 1st defendant, who virtually controlled the Association, was unwilling to make such adjustments himself or through the medium of the two Committees which he virtually controlled. The same comment applies to the action of the plaintiffs in getting another firm of solicitors to write to the Financial Secretary applying under section 142 of the Companies Ordinance for the appointment of an inspector of investigate the affairs of the Company. The action of the 1st plaintiff in complaining of the non-registration of the Literacy Class when he must have been aware that the class operated under conditions prohibitive of registration and when he himself had started that class under those same conditions, possibly approaches the borderline of the malice but, in the context of so many matters which genuinely disturbed the plaintiffs and others in the conduct of the affairs of the Association, I am disinclined to say that this excessive zeal was, of itself, evidence of express malice which, in any event, could contaminate nobody except the 1st plaintiff. 67. There can, however, be no question that the defendants and all of them were guilty of express malice. All the defendants were members of either the Executive or Supervisory Committees of this Association and those Committees worked hand in glove in the conduct of the operations of the Association. Now the second and third plaintiffs were members of the Executive Committee and had been re-elected to that Committee as recently as March 1969. To say of them in June, as the defendants did, that these two “because they had failed in the election” felt ashamed and got so angry that they confounded right and wrong and muddled up everything thus damaging the reputation of the Association to an unparalleled extent, was clear evidence of express malice. This statement was made by persons who were fellow committee members of the second and third plaintiffs and who must have known that the second and third plaintiffs held that status and had been re-elected to the Executive Committee as recently as March 1969. 68. There is further evidence of express malice on the part of the defendants and all of them in the fact that Document 18, the circular letter complained of by the plaintiffs, was published before Document 11 was sent to the first plaintiff asking him to submit a defence, in regard to the issue of Document 7, within 14 days. Clearly, the minds of the defendants and all of them were made up so that they castigated the plaintiffs including the first plaintiff in a circular letter before even conveying to him the opportunity to defend himself which, under article 11 of the Articles of Association, was mandatory. 69. These two matters were evidence of express malice on the part of all five of the defendants and there is additional evidence of malice which perhaps cannot be attributed to each and every defendant. Thus, the first plaintiff having been expelled from the Association, that fact was on the next day advertisied on the front page of a popular newspaper. When the first defendant was asked why this should have been done when it was admitted that the normal method of communication with members was by letter, he was unable to offer any explanation but said that the decision was reached by a resolution at a meeting. In fact, there was no such resolution; the minutes of the meeting of the 27th of June, 1969 at which the decision was taken to expel the first plaintiff contained no reference to the advertising of that fact in any newspaper and since the advertisement in question appeared on the very next day there could no other meeting at which this matter was decided upon. Such advertisement was the usual method of communicating with members and was not specifically called for under article II of the Articles of Association dealing with expulsion. There is an overwhelming inference that the first defendant, Chairman of the Executive Committee of the Association and the dominant hand in its affairs, was responsible for this advertisement and this also amounted to express malice. 70. I have already referred to the attempted subornation of perjury on the part of the first defendant and of Mr. CHUNG Chun-kau. This again was undoubtedly express malice on the part of the first defendant. 71. It follows that neither the plea of qualified privilege nor that of fair comment upon a matter of public interest, is available to either side and if the matter complained of be libellous, each side must fall back upon justification. 72. I ought, perhaps, to add that had it not been for the holding of express malice on the part of the defendants, I would have found them to be covered by their plea of qualified privilege. The publication was confined, so far as they were concerned, to members of the Association. It is true that Mr. Wei was able to point to publication to a non-member namely, Mr. TSANG Wai-leung (P.W.13) a former member of the Association who had sought to rejoin. It was the evidence of this witness that, having written a letter of application to rejoin the Association and having received no reply thereto, he visited the premises of the Association when he was told by Mr. CHUNG Chun-kau that his application could not be processed because of the dispute within the Association. The witness said that upon his enquiry as to the nature of the disputes, Mr. CHUNG Chun-kau gave him copies of both Documents 7 and 18, that is, the plaintiff’s letter the subject of the defendants’ counterclaim, and the defendants’ circular letter, the initial subject of the plaintiffs’ claim. It is to be observed however, that this publication to Mr. TSANG Wai-leung was not publication by any of the defendants. Mr. CHUNG Chun-kau was not a defendant but the Honorary Secretary of the Association which Association, in turn, was not made a defendant. It follows that there is no proof any publication outside the circle of membership of the Association by any of the defendants and, as I have said, but for the existence of express malice, I would have held the defendants covered by their plea of qualified privilege. 73. Document 18, the defendants’ circular letter, which the plaintiffs allege to be libellous, does not mention each of the plaintiffs by name but so refers to the 1st plaintiff at the beginning and elsewhere mentioning “LI Ching and others”. It is the plaintiffs’ contention that the words “and others” refer (inter alia) to the 2nd to 7th plaintiffs, a contention which is disputed, though perhaps not very seriously, by the defendants. That the reference was in fact to the 2nd to 7th plaintiffs, is demonstrably clear. The plaintiffs’ letter, which had prompted the issue of the defendants’ circular, was signed by all the plaintiffs and by two other gentlemen and was enclosed by the defendants in their own circular letter. No reader of that circular letter and its enclosure could have been in any doubt that the phrase “LI Ching and others” was intended to refer to the 1st plaintiff and the eight other signatories to the plaintiffs’ letter, the subject of the defendants’ counterclaim. 74. In analyzing the defendants’ circular, it has to be recognized that its issue was prompted by the issue of the plaintiffs’ letter (Document 7) criticizing the administration of the Association. That fact, however, does not excuse the venom of the defendants’ circular, the sting of which, as Mr. Wei rightly said, lies primarily in the opening caption and the preamble to the document. The first words of which the plaintiffs complain are
75. The plaintiffs say that these words in their natural and ordinary meaning meant that the plaintiffs were spiteful persons and that as a result of their failure to secure election, they had spread rumours and told lies with intent to injure the reputation of the Association. In his final address Mr. Bernacchi said that LI Ching had admitted that he had stood for election in 1969. When Mr. Wei’s turn came, he stated with equal conviction that Mr. LI Ching had denied having so stood for election. I can find no record in the evidence of LI Ching having made any such admission: on the contrary he denied that in fact he had stood for election in 1969 and there was not a scintilla of reliable evidence to the contrary; it follows that the motivation attributed to him in the defendants’ circular was without foundation. Still more outrageous is the defendants’ suggestion that the 2nd and 3rd plaintiffs had failed in the 1969 elections. In fact, as a result of those elections, both these gentlemen were elected to the Executive Committee, were fellow members of that Committee under the leadership of the first three defendants, and held joint meetings with the 4th and 5th defendants who were respectively the Chairman and Vice-Chairman of the Supervisory Committee. The first three defendants were respectively Chairman and Deputy Chairmen of the Executive Committee. All five must have been perfectly well aware that the 2nd and 3rd plaintiffs had not only not failed to get elected in 1969 but had successfully stood for election. There is no reliable evidence that any of the remaining plaintiffs stood for election in 1969 although one witness did say that the 1st and 2nd plaintiffs had on one occasion called at his home soliciting votes, but the witness was unable to say for whom they were so soliciting. Moreover there was no evidence that the plaintiffs had spread rumours and told lies with intent to injure the reputation of the Association and this was admitted by leading counsel for the defendants. The allegation that they had done so and had done so as a result of their failure in the 1969 elections is clearly libellous and carries the imputation of which the plaintiffs complain, namely they were spiteful and deceitful persons in that by reason of their failure to be elected they had spread rumours and told lies with the intention of injuring the reputation of the Association. 76. The next allegedly libellous passage of which the plaintiffs complain runs
77. These words, the plaintiffs claim, meant that the 1st plaintiff had done no welfare work as Chairman of the Executive Committee and had therefore neglected his duties as such Chairman. 78. It has to be recognised that the taunt here contained in the defendants’ words was intended as a refutation of the suggestion, contained in the plaintiffs’ letter, that whereas the Association had a relatively large income, nothing was being done for the welfare of members. The temptation to reply in kind, with a reference to the welfare work accomplished during the 1st plaintiff’s two terms of office as Chairman of the Executive Committee, was obvious but it should have been resisted. An analysis of the evidence shows that at least as much was done for the welfare of members under Mr. LI Ching’s tenure of office as was done under that of the 1st defendant, Mr. Koo. Thus the medical clinic, the precise nature and services of which are admittedly obscure, was commenced during Mr. LI Ching’s term of office; premises for the Association were obtained and sources of income such as the Literacy Class and the chit funds were initiated. It may well be that these latter activities did not flourish to the extent of later days but the initial impetus for them came during the 1st plaintiff’s term of office and it was he and his Committee who took the strain of putting these activities into motion – a task no doubt more difficult than merely sustaining or even increasing the momentum in later years. 79. The suggestion that the 1st plaintiff had done no welfare work as Chairman of the Executive Committee and had therefore neglected his duties as such Chairman is very clearly present in the defendants’ letter but has been refuted and the words complained of are libellous. A further meaning ascribed by the plaintiffs to this particular passage in the defendants’ circular letter is that the 1st plaintiff was biased and prejudiced and was a person without any moral sense of right and wrong. I am unable to interpret the language used by the defendants in this sense. 80. The next words complained of by the plaintiffs are
81. These words were used in purported refutation of the suggestion in the plaintiffs’ letter that, in dealing with the main Association in correspondence, the defendants sometimes used the name of the limited Association and sometimes that of the defunct branch Association. The plaintiffs claim that these words meant they intended to sow the seeds of dissension among the members of the Association and meant to harm the Association. The words undoubtedly do contain an explicit imputation of an attempt to sow dissension within the Association and to that extent I do not think they are justified. It emerges from the evidence that it is undoubtedly true that in correspondence the name of the limited Association and that of the defunct branch Association were, to some extent, used apparently indiscriminately by the defendants’ Honorary Secretary and the plaintiffs comment in their letter that this was a slovenly method of dealing with matters, was not without force. In bringing this matter to the attention of the remaining members of the fifty-two the plaintiffs were not, as I see it, attempting to sow dissension but displayed a genuine and somewhat muddle-headed attempt to rally the ranks in respect of what they considered to be loose and inept administration on the part of those responsible for the affairs of the Association. I am unable to agree with the plaintiffs that these words can be construed as meaning that they wished to do harm to the Association though, as we shall see, there was an element of intention to harm Mr. Koo, the 1st defendant. 82. The phrase, next the subject of complaint by the plaintiffs, is the brief “such was their dishonesty”. These words occur at the end of paragraph 4 of the defendants’ letter which paragraph described as ridiculous the plaintiffs’ suggestion that the Literacy Class should be registered with the Education Department, pointed out that the class was started when the 1st plaintiff was Chairman of the Executive Committee, that the defects of the class existed equally at that time and that its motive then as now was to produce income for the Association. The words undoubtedly impute that the 1st plaintiff is a dishonest person but I think they are justified for it was dishonest that Mr. LI Ching should attack the existing committee members for the condition of the Literacy Class and the failure to have it registered when he was aware that that condition was such as to render registration impossible and when he had himself started the class without registration and under conditions likewise inimical to registration. 83. Paragraph 5 of the defendants’ letter, after commenting on the plaintiffs’ suggestion that the Daily Money Loan Association should be banned and referring to the Loan Association as a source of income for the limited Association, goes on
84. The plaintiffs claim that this means that they are stupid and ignorant persons. So it does, but I cannot agree that in the context in which the words were used they were libellous. It is one thing to say of a professional man that he is stupid and ignorant in the exercise of his profession but quite another to use those words merely in the context of a dispute between members of an Association as to whether a particular activity of that Association should or should not be terminated. I do not find these words libellous. 85. Paragraph 6 of the defendants’ letter refers to the comment in the plaintiffs’ letter that none of the Executive or Supervisory Committee members should receive salary or remuneration, invites attention to the accounts of the limited Association and suggests that no entries will be found there to support any implication of remuneration to such members. The paragraph concludes:-
86. There was, as we shall see, substance in the plaintiffs’ comment in that at any rate one member of the Executive Committee was receiving a salary from the Association in defiance of the Memorandum of the Limited Company. The man who drafted the defendants’ letter and chose to employ the above phrase was the very man who was receiving such salary and that was unquestionably known to the 1st defendant. In those circumstances to allege that the plaintiffs had lost all claim to respectable character because they had pointed this out, was libellous. 87. Paragraph 7 of the defendants’ letter refers to the fact that the plaintiffs’ letter had been signed (inter alia) by a member who had only joined the Association three months before its issue and the paragraph concludes with the words
88. These words, the plaintiffs say, mean in their natural and ordinary meaning, that the plaintiffs or some of them had improperly induced one CHEUNG Tam-sang to sign the plaintiffs’ letter as part of their plot to do damage to the reputation of the Association. That is precisely the imputation which I should put upon the defendants’ words. It has not been substantiated and the words libellous. 89. The first sentence of paragraph 8 of the defendants’ letter runs
90. It is the words “so that he may not be hoodwinked by others” of which the plaintiffs complain saying that this means that they were attempting to deceive members of the Association as to the state of its affairs. The phrase is marginal but on balance I am not inclined to say that is libellous. 91. On the 19th of June, 1969, the first three defendants addressed a letter to Mr. AU-YEUNG Lam, described therein as “member of the Executive and Supervisory Committee”. I have recited that letter much earlier in this judgment but it will be convenient to set out its terms again: -
To: Mr. Au Yeung Lam
92. That, at any rate, is the one such document which has been produced in Court but it is apparent that the letter took the form of a circular addressed to all members of the Executive and Supervisory Committees. The letter is libellous but only of the 1st plaintiff. The allegation of his failure in the 1969 election is repeated and it is alleged by the 1st plaintiff that the words mean that he was a spiteful and deceitful person in that, owing to his failure in the election, he had instigated some of the members to fabricate a story to do damage to the reputation of the Association, and deceive the District Office and meant to harm the Association. The words are, in substance, a repetition of the libel on the 1st plaintiff contained in the defendants’ earlier circular letter (Document 18). 93. Turning to the defendants’ allegations of libel and to the plaintiffs’ plea of justification, the defendants first complain that the words “to compare the enthusiasm (at the beginning) with the indifference (now existing) it is to be deplored that the good feelings of the members have not been maintained.” The defendants allege that these words mean that they and each of them were incompetent and/or neglectful in the execution of their official duties in the Association and secondly that they and each of them had no ability to lead the members of the Association. 94. It is common ground that the Association had sustained a large drop in membership over the years; the plaintiffs’ letter claimed that at one time there were almost a thousand members where as the defendants’ circular put the figure at 656 whilst admitting that when members were required to re-register only 246 persons registered as members. This can only be regarded as strong evidence that interest in the Association on the part of its members was waning. The words complained of do not specifically attribute that result to the leadership of the defendants though there may be an inference that this was what was meant but the fact is that the comparative enthusiasm implicit in a membership of more than 650 was demonstrated to have become a relative indifference by the fact that membership had dropped to below 250 and this first passage complained of, if it can be said to be libellous at all, may be said to be substantially justified. 95. The second allegedly libellous phrase was “the Association having such big amount and yet no contribution has been made to the welfare of the members.” The defendants claim that these words meant that they and each of them had misused funds of the Association and secondly that they had applied the funds of the Association improperly. I very much doubt that there is any real distinction between the two innuendoes pleaded here. There was ample evidence of a steady source of income to the limited Association from the Literacy Class, the chit funds, the 30% of the 20% commission collected by Mr. CHUNG Chun-kau for his work in collecting death gratuity contributions, as also from the subscriptions of members. The first part of the comment complained of has been amply demonstrated but the sting lies in the suggestion that no contribution had been made to the welfare of the members. In my view this comment is likewise substantially justified. The defendants pointed to the acquisition of premises for the use of the Association and the building of the public school bearing the name of the Association as activities entered into for the welfare of members. The former undertaking, however, was initiated under the chairmanship of the first plaintiff and the most that the defendants can be said to have done in regard to the acquisition of these premises was to continue the periodic payments required to complete the purchase entered into under the leadership of the 1st plaintiff. As far as the public school is concerned this was just what its name implies, a school open to all children whose parents were interested in sending them to it and it did not exist for the exclusive use of the children of members of the Association. Moreover the source of the funds necessary to build the public school, in so far as they did not come from a Government subvention, was far from exclusively the Association. The tender accepted was from a firm under the sole proprietorship of the 1st defendant’s uncle, the 1st defendant describing himself as “the master-mind” of that firm. The tender lay between $110,000 and $120,000 half of which was to be paid by the Government as was half of the additional sum required for furniture, decorations and fittings. Subsequently a footpath to the school was built, an archway erected and an additional classroom added. The total cost of erection and additions was in the region of $180,000. Some of this money came from the Government, other contributions came from friends and relatives of members of the Association by way of donation coupons. The 1st defendant himself gave $5,000 and was responsible for raising $34,000; a variety show was organized which netted $14,000. The first defendant also advanced loans for the purpose of the construction of the school to a total of between $40,000 and $50,000 these sums being fully repaid to him by the Association and the greatest amount owed to him at any one time, by the Association, being $20,000. Thus the Association paid some, but by no means the bulk, of the cost of the public school which was, as I have said, in any event merely a public school. 96. In addition to the acquisition of premises for the Association and the erection of the public school, mention was also made of a medical clinic but this again was an enterprise started under the aegis of the first plaintiff and there was absolutely no evidence of the facilities provided by the clinic or of the community which it served. In short, throughout the whole case there was very little evidence indeed of facilities provided, in more recent years, for the welfare of members of the Association and had these existed to any significant degree, I am confident that the defendants would have dilated upon them. In my view this second passage complained of is incapable for bearing the meaning ascribed to it by two defendants; the suggestion that the funds derived by the Association had not been utilised for the welfare of members was largely justified and did not carry the implication that the defendants had necessarily misused those funds or applied them improperly; an equally valid imputation might have been that the Association was simply sitting upon its funds. 97. The next words complained of were “If you know you are sick and yet you are afraid of seeing the doctor, this is the most unwise thing of all” and these words, the defendants claim, meant that they and each of them had turned the Association into a “sick” organisation. This may well be the correct interpretation of the plaintiffs’ analogy but in my view it is entirely justified for the Association was in truth in an unhealthy state. The first defendant had, since 1962, been the Chairman of the Executive Committee of the Association and most of the committee members were, what came to be called in the trial, “his men”. Since that same date Mr. CHUNG Chun-kau had been in charge of all affairs of the Association calling himself, in the days of the branch Association, a clerk and after incorporation the Honorary Secretary. In fact, he was the General Manager acting Mr. KOO’s administration being also the de facto Treasurer and keeping the minutes of the monthly meetings. There was a conflict of evidence as to whether there were actual donations of members to the Association as opposed to mock donations made from what were really transfers from the management section to the limited company. The balance of probabilities suggests that there were in fact such donations but they did not appear in the accounts. Other abuses were the failure of both Committees to hold separate meetings as required by the Memorandum and Articles of Association; the holding of joint meetings always under the chairmanship of Mr. KOO, the 1st defendant; the payment to which I will come, of a salary to Mr. CHUNG Chun-kau, a member of the Executive Committee, in defiance of the Memorandum and Articles; the lack of receipts in respect of financial transactions between Mr. KOO and the Association; the lack of any bank account, and the continued use of the name of the defunct branch Association after incorporation had taken place. The Association was in fact run loosely and cynically and in substantial defiance of the Memorandum and Articles of Association of the limited company and, if the words complained of do in fact mean that the defendants had turned the Association into a sick organisation, they are amply justified. 98. The next extract form the plaintiffs’ letter of which the defendants complain runs
99. These words, the defendants claim, mean that they and each of them had attempted or conspired to separate from and/or to avoid supervision by the main Association by improper means and that they disliked and/or were in fear of proper or constant supervision by the main Association. 100. There was ample evidence that Mr. CHUNG Chun-kau, in sending out notices to contributors calling for payments to the death gratuity fund, continued to use the name of the defunct branch Association after incorporation and also to use the name of the 1st defendant as Chairman of the defunct branch Association and that of the 1st plaintiff as chief of the welfare section of that no longer existent body. In practice neither the 1st defendant nor the 3rd plaintiff had anything to do with the collection of these subscriptions or the receipt of commission therefor. The defendants suggest that this amounted to nothing more than using up old printed forms without taking the trouble to amend their heading but this is not the whole of the explanation since some of the monthly reports of his collections, made by Mr. CHUNG Chun-kau to the main Association, were handwritten and included in his hand the name of the defunct branch Association as well as having applied to them a chop of the first defendant as Chairman of the Executive Committee of that Association. Even had it been true that this method of communication with the main Association was attributable to nothing more than a desire to use up old forms and a failure to amend them, the comment that this was slovenly dealing with the main Association was entirely apt and I find that the plaintiffs’ remarks are incapable of bearing the innuendoes which the defendants attempt to attribute to them. 101. The 5th extract of which the defendants complain consists of the words “You have slashed a great proportion of the receipts and expenditure and reported to the Registrar in this manner”. These words, the defendants say, mean that they and each of them had falsified accounts and misappropriated the funds of the Association. They add, somewhat redundantly, that the words also mean that they had been dishonest to and/or defrauded the Association and its members and the last meaning they attribute to these words is that they had made a false report to the authorities. 102. The language used here was not that accounts had been falsified but that receipts and expenditure had been slashed in those accounts and this was entirely true inasmuch as the receipts and expenditure associated with the Literacy Class were deliberately kept out of the limited company’s accounts as also were the receipts, in the form of service charges, derived from the chit funds and it was true that the accounts of the limited company were presented to the Registrar of Companies in a form which did not show the true source of income but quoted these matters under the guise of alleged donations from members of the Executive and Supervisory Committees. I cannot read the allegation of falsification of accounts and misappropriation of funds into this comment of the defendants. 103. The defendants next complain of the words “and you further, under the pretence that the Association is under the control of the Government, tried to obtain legal protection and this kind of thing appears not to be in accordance with the wish of the members”. The defendants claim that these words mean that they and each of them had made arbitrary decisions without any regard to the wishes of the members of the Association, and secondly that under the pretence of Government control they had imposed their will and whim on the members of the Association. I am quite unable to read into the words used by the plaintiffs the first implication striven for by the defendants. And if the second implication can be said to exist, it is justified for the reasons relating to the slack control of the organisation to which I have previously referred. 104. Undoubtedly the most serious of the phrases used by the plaintiffs and complained of by the defendants is the next one which is “Using the pretext of giving accommodation to the children of the members, your actual intent was to make a few hundred dollars”. This, the defendants say, means that each of them had put their own financial gain before the welfare of the Association and had used their official positions in the Association to achieve their selfish aims. 105. In regard to this matter Mr. Wei said that he relied on substantial justification at Common Law and referred to the over-crowded condition of the Literacy Class, its poor equipment, the fact that it did not comply with the requirements of either the Education or Social Welfare Department, and to the evidence that there was adequate kindergarten accommodation in Yuen Long without the necessity for this particular Literacy Class. He added that the class had no school management committee as required by the former Education Ordinance (Cap.279 Section 8) and generally to the illegality of the class as an unregistered class. These however were all peripheral matters and did not get to the nub of the defendants’ complaint as to the words taken by the plaintiffs. The suggestion in those words, taken at their face value, was not merely that the defendants, upon the pretence of offering accommodation to the children of members, were keeping alive this source of income for the benefit of the Association but that they were so doing for personal ends. The words were “Your actual intent was to make a few hundred dollars”. Had the meaning which the plaintiffs intended been “to make a few hundred dollars for the Association”, nothing would have been simpler than to have added those last three words but as the phrase stands it is an imputation of dishonesty on the part, at any rate, of the 1st defendant; it is a suggestion of the hand in the till. There is not the slightest justification for the suggestion that Mr. KOO was interested in the continued operation of the Literacy Class for the sake of his own personal gain to the extent of a few hundred dollars a month. He is a man of quite considerable substance whatever his many faults in regard to his conduct of the affairs of the Association, has assisted the Association financially and not inconsiderably; a man in respect of whom such an imputation is patently inept. In respect at least of Mr. KOO the innuendo pleaded is sustained and the plaintiffs have failed to justify this part of their letter. 106. I do not consider however, that the phrase is libellous at any defendant other than the first. The plaintiffs’ letter was addressed to him, that is, to “Mr. KOO To-shing, Chairman, Executive Committee of Wai Chow Un Long Residents’ Association (Ltd.)”, and the allegation made of him. It is true that certain other allegations made in the letter also reflected upon the other defendants, as for example, the failure to hold separate meetings of the Executive and Supervisory Committees but this particular charge was levelled at Mr. Koo and did not so reflect upon the other defendants. 107. Mr. Wei put forward a secondary alternative argument to the effect that since the Literacy Class, being unregistered either with the Education Department or with the Social Welfare Department was an illegal operation, the words used by the plaintiffs were in any event not actionable. For this proposition he relied upon paragraph 43 of the 6th edition of Gatley on Libel and Slander and upon the cases referred to in Footnote 59 to that paragraph. 108. These authorities do not, in my view, assist the plaintiffs, for a man retains his right to sue for defamatory statements which impugn his personal or professional reputation ultra the illegal calling or activity. In Yrisarriv. Clement([3])Best, C.J., said:
109. In Grevillev. Chapman([4]), an action for libel imputing that the plaintiff had entered a horse to run for certain races and had afterwards fraudulently withdrawn the horse for the purpose of obtaining an unfair advantage in betting, Lord Denman, C.J., said:-
110. These cases were followed by the High Court of Australia in the case of Smith’s Newspapers Limited and Anotherv. Becker([5]). 111. Speaking of that last-mentioned case in the subsequent Australian case of Wilkinsonv. Sporting Life Publications Ltd. ([6]) Rich, J., said*:
112. In the same case Dixon J. said**:
And later***:-
113. The same principles must be applied to the present case. It would be pushing the consequence of the non-registration of the Literacy Class altogether too far if it were to be held that because of this taint of illegality the 1st defendant was debarred from any remedy in regard to an allegation of financial dishonesty. The words he complained of were libellous, have not been justified and are not protected by virtue of any illegality attaching to the Literacy Class. 114. The defendants next complain of the phrase “Let us ask you who would be bearing the legal responsibility of opening a black market school” and claim that this means that the defendants and each of them had run an illegal school and had no regard for law and order. It is interesting to observe that the defendants do not complain of the allegation that they had “started” this Literacy Class because this allegation was undoubtedly inept, the Literacy Class having been started during the period in which the 1st plaintiff was the Chairman of the Executive Committee. What the defendants complain of, however, is that the words mean that they had run an illegal school. This, I think, is what the words do mean and they are justified to the extent that the Literacy Class was unregistered and unregistrable either with the Department of Education as a kindergarten or with the Social Welfare Department as a nursery by reason of its physical overcrowding (approximately 100 pupils in two classrooms aggregating approximately 800 sq. ft.), lack of adequate equipment, lack of a rear staircase and lack of adequate sanitary facilities there being but one toilet for the whole premises. All these defects were known to the defendants as was the impossibility of obtaining registration, unless and until they were cured and the allegation of running an “illegal” school was therefore justified. 115. I do not consider that the words here complained of also meant that the defendants had no regard for law and order. The mere assertion that a person is undertaking an activity, whether it be driving a car, operating a cooked food stall or running a Literacy Class, which requires, but has not received, some form of licensing or registration cannot, in my view be hold to contain the wide general imputation that the individual in question has no regard for law and order.
116. A similar pattern applied to the Building Committee formed to supervise the erection of the public school. CHUNG Pui-yiu, the treasurer of that Committee, (P.W.20) said that he had done no actual work for it since about April 1966 and Mr. KOO Too-sang (D.W.23), the elder brother of the 1st defendant admitted in cross-examination that since that time he had been performing Mr. CHUNG Pui-yiu’s functions using receipts which had been pre-chopped by CHUNG Pui-yiu. There was in fact a serious dispute as to whether Mr. Chung had in fact given Mr. KOO Too-sang any chopped blank receipts, Chung hotly denying it. I have referred to the manner in which certain correspondence was carried on in the name of the defunct branch Association, another example of arbitrary handling of the Association’s affairs. It seems to me that the words here complained of are true in fact. 117. The next compliant concerns the words “should follow the rules by allowing members to inspect the accounts and all the documents of the Association”. This, the defendants claim, meant that they and each of them had refused to allow reasonable access to accounts or other books of the Association by its members. I have already referred to two occasions upon which specific requests for accounts were denied and to the fact that the Treasurer was debarred from handling the accounts. Article 73 of the Articles of Association clearly contemplated that accounts should be open to the inspection of members providing as it did that the Executive Committee should from time to time determine at what times and places, and under what conditions or regulations, the accounts and books of the Association or any of them should be open to the inspection of members. I have already related how, at joint meetings of the Executive and Supervisory Committees each member had a file in his name which contained the accounts of the management section and of the limited company for the preceding month. It is the contention of the defendants that these accounts were open to inspection by members since they were contained in a glass-fronted notice box in the office of the Association. This was a small room originally designed as the kitchen of the premises was taken up by the two rooms occupied by the Literacy Class which rooms, in the evenings, were used for the monthly joint meetings of the two Committees. The glass-fronted notice box was described as small and adequate only to display visibly one sheet of paper; it was agreed that other documents, apart from accounts, are contained in the box. The office in which the box was contained was the room in which Mr. CHUNG Chun-kau performed his many tasks for the Association; it is said that that room was open to members, but it was a small room and the existence, in such a room, of a small glass-fronted notice box containing accounts which it would be necessary to remove to peruse, since only one sheet could be displayed, cannot be said to be a satisfactory method of displaying accounts for the benefit of members and there is substance in Mr. Wei’s suggestion that the notice box was little more than a formality. 118. Under Article 74 of the Articles of Association the Executive Committee was required at the annual general meeting every year to lay before the meeting an income and expenditure account and a balance sheet. We have already seen that annual general meetings were not held but meetings were held once every two years after the elections had concluded; this was by way, primarily, of an inauguration ceremony for the newly elected members of the two Committees. It was admitted by Mr. Koo that in 1967 this ceremony or meeting, which was normally held in a restaurant or a theatre, was a very curtailed affair on account of the riots and was held in the Association’s premises. He further admitted that in 1967 no accounts were produced for the previous two years. Mr. CHUNG Chun-kau’s recollection was that accounts were produced in 1967 but they were certainly not produced in court and I unhesitatingly accept the 1st defendant’s version of this. It follows that between 1965 and June 1969 (that is after this dispute had arisen) no annual accounts had been produced to members and the defendants’ interpretation that the words under consideration meant that each of them had refused to allow reasonable access to accounts or other books of the Association by its members, has been substantially justified by the plaintiffs. 119. A second interpretation which the defendants seek to place upon these words are that they had been frightened to make any or any full disclosure of the affairs of the Association. I do not think that the words used by the plaintiffs contain any suggestion of fear, but that the defendants had been unwilling to make full disclosure of the affairs of the Association has, I think, been demonstrated. 120. The phrase next complained of is “Members of the Executive and Supervisory Committees should not take up any jobs of the Association which is (sic) stipendiary.” The defendants claim that these words mean that they and each of them had improperly drawn remuneration from the funds of the association for their respective official duties. I cannot read this interpretation into the words complained of which do not specify any particular members of the Executive and Supervisory Committees and which are justified in respect of Mr. CHUNG Chun-kau who was a member of the Executive Committee and was drawing salary for the work he performed for the Association. Clause 4 of the Memorandum of Association of the limited company provides that no member of the Executive Committee or Supervisory Committee or governing body of the Association shall be appointed to any salaried office of the Association and that no remuneration or other benefit in money or money’s worth shall be given by the Association to any member of such Committees or governing body. Article 44 of the Articles of Association provides that no member of the Executive Committee shall be entitled to receive any remuneration from the Association for his services rendered to the Association as such member. It may be argued that this last clause would not debar Mr. CHUNG Chun-kau from receiving remuneration for his services not, “as such member”, but as the Honorary Secretary; however that may be, the prohibition contained in clause 4 of the Memorandum is complete and the plaintiffs were perfectly justified in commenting that members of the Executive and Supervisory Committees should not take up any jobs of the Association which were of a stipendiary nature. From March 1965 until March 1967 Mr. CHUNG Chun-kau, a member of the Executive Committee, drew salary month by month from the Association. The appropriate (perhaps “inappropriate” would be a better word) entry made in the limited company’s accounts was either under the anonymous description of “clerk” or one “TSE Wing”. Tse Wing is a mysterious character who was said to have been employed by the Association as a clerk from the time of incorporation. None of the plaintiffs or their witnesses knew TSE Wing and this included AU YEUNG Lai who was the messenger of the Association at the relevant period and was on the premises for most of the day. Both the 1st defendant and Mr. CHUNG Chun-kau maintained that TSE Wing existed but it is significant that he was never called as a witness and that no explanation for the failure to call him was every proffered. It was Mr. CHUNG Chun-kau’s evidence that TSE Wing in fact did hardly any work for the Association, that he used to look in each morning and ask Mr. CHUNG Chun-kau whether there was any work for him whereupon Mr. Chung would reply in the negative and Tse Wing would disappear for the rest of the day to look after his father, who was sick. Mr. Wei asks pertinently why employ TSE Wing if he was not intended to do any work and why pay him? The position was that after incorporation, just as before, Mr. CHUNG Chun-kau performed all the office work of the Association and did so, according to him, without salary whereas previously for the same work he had been receiving a salary of $230 per month. 121. It was only after protracted cross-examination that Mr. Chung admitted that TSE Wing was in the habit of giving $100 per month out of his (TSE Wing’s) salary of $280 a month. This was nothing more than a half-way untruth and I am fully satisfied both that Mr. CHUNG Chun-kau received a salary rising from $230 to $280 a month, debited in the accounts as paid to “the clerk” or “TSE Wing” and that either TSE Wing never existed or, if he had any corporeal existence, his was a just a front name used as a fictitious clerk to enable Mr. CHUNG Chun-kau to draw salary although a member of the Executive Committee. 122. At the conclusion of Mr. CHUNG Chun-kau’s evidence I asked him why, after incorporation, he had continued to work for the Association doing the same work as formerly but without salary, since previously he had been earning, according to him, $230 per month. Mr. Chung’s explanation of this was that after incorporation he began to receive a 20% commission on the death gratuity contributions collected by him for the main Association. This is an implausible explanation because he went on to say that in the early days after incorporation the 20% commission amounted to a few tens of dollars or possibly $100 per month. It is apparent from the defendants’ own circular letter (document 18) that even by 1969 the commission in question was averaging only approximately $200 a month and by that date Mr. CHUNG Chun-kau was no longer receiving the whole of the commission, 30% of which was going to the Association. The remaining 70%, or $140 per month, went to Mr. CHUNG Chun-kau who was therefore, if his evidence is to be accepted, still, 3½ years after incorporation, performing the same duties for the Association for a remuneration considerably less than he had been receiving prior that event. 123. It was the contention of Mr. Wei, for the plaintiffs, that entries in the Minutes, in 1965, relating to the appointment of TSE Wing as clerk were in fact forgeries made in late 1967 by Mr. CHUNG Chun-kau for the purpose of this action. These minutes are written in Chinese characters. Whilst it is apparent even to my untutored eye that certain of the relevant characters are smaller and more crowded than the remaining characters on the page and that other relevant characters exhaust the whole space in the appropriate column, passing below the thick blank line which forms the end of the column and continuing into what I may term the selvedge of the page to the very extremity of the page in a manner not found elsewhere in the Minutes, I had no handwriting expert’s evidence from either side in regard to this allegation. Without much assistance I am not prepared to go so far as to make a finding that these entries were in fact forgeries. I am however, as I have said, convinced that either TSE Wing never existed or alternatively, that his name was used as a device to conceal the fact that a member of the Executive Committee, Mr. CHUNG Chun-kau was being a salary in contravention of the Memorandum of the limited Association. 124. The words next complained of by the defendants are “should not use one’s official duty to accomplish one’s self-interest . . . . . . Whatever you do it should not be ultilised by a small number of crafty and shrewd people.” These words the defendants allege to mean that each of them was of bad character and took advantage of his official position in the Association for his personal gain. As I see it, the second part of the words complained of – that is the reference to being utilised by a small number of crafty and shrewd people – was no more than advice; whereas the initial part of the quotation, concerning not using one’s official duty to accomplish one’s self-interest, was justified at least in the sense of power in that it was apparently to the interest of the defendants to run the Association on somewhat cavalier lines in defiance of the Memorandum and Articles of Association for what they must have regarded as their own convenience in such matters as joint, as opposed to separate, meetings of the Executive and Supervisory Committees, the debarment of the Treasurer from the performance of his proper functions and the effective debarment of the Supervisory Committee from its task of supervision by reason of the fact that the only meetings of that Committee were joint meetings with the Executive Committee presided over by the 1st defendant, the Chairman of that latter Committee. 125. Paragraph 29 of the Statement of Defence and Counter-claim contains general, alleged interpretations of the plaintiffs’ letter which really add nothing to the detailed alleged interpretations with which I have dealt and which, in so far as they are correct interpretations, have been justified by the plaintiffs with the exception of the allegation that the 1st defendant was running the Literacy Class under the pretext of giving accommodation to the children of the members whilst his actual intent was to make a few hundred dollars. 126. For the sake of completeness (and that is a relative term for I cannot profess in this judgment to deal with all the blind alleys which were explored in the course of this lengthy trial), I will mention that a great deal of attention was paid during the trial to document 92 in the agreed bundle, which consists of two parts, the upper and the lower, these being translated separately into English under the composite number 92(1). The upper portion of document 92 reads as follows: -
127. The lower portion consists of a record of loans allegedly from the 1st defendant, the said Mr. KOO Too-shing, the Chairman of the Executive Committee, to the Association, and of repayments thereof. Mr. Wei attempted to make considerable capital of this document and chased this particular hare with considerable energy and tenacity. At the end of the day he could say no more than that, if the document was not evidence of abuse of the accounting system, it was evidence that the system was wide open to abuse. The truth of document 92 is that nobody will ever know the truth of document 92 except, perhaps, Mr. CHUNG Chun-kau who prepared it. I hope I am not maligning any professional adviser when I say that I am fully satisfied that nobody in Court thoroughly understood this document and Mr. CHUNG Chun-kau’s evidence was no help to that end. At one stage he said that he prepared the document for fear that he might forget how much he had received and how much he had paid and that the document was not a part of his account books, being written separately. Subsequently, he said that the document was prepared for the purpose of eventual posting into account books and said that the items were not recorded there and then but represented a working out of a balance after the events. He agreed that other accounts revealed a greater total expenditure than had actually been incurred in certain months and put this down to faulty calculation, and when it was suggested to him that the upper portion of document 92 (the receipt) came into being as a result of the plaintiff’s letter, the subject of the defendant’s counterclaim, he agreed that he had, after receipt by the 1st defendant of that letter, reminded the 1st defendant of the repayments contained in the lower portion of document 92 totalling $6,000 and, when asked if the receipt (92) had come into being as a result of that reminder, answered “it might have been so.” 128. Mr. Wei would have the Court believe that these alleged repayments to Mr. Koo were not, in fact, repayments but represented a pocketing by Mr. Koo of part of the Association’s funds. I am not prepared to accept that; it has certainly not been proved. I would certainly agree, however, that this haphazard method of accounting was further evidence of the loose control exercised by those responsible for the management of the Association and, if not constituting actual abuse of accounting methods, certainly rendered the accounts open to abuse. 129. It was largely in an endeavour to counter Mr. Wei’s attack upon document 92 that the defendants caused to be made a so-called audit of the management section accounts – something which apparently had not been attempted previously. The account produced was dated the day before the accountant witness came into the box to give evidence about it. It became apparent in cross-examination that the so-called account certified by the firm of accountants was not an account prepared by or on behalf of the Association but an account prepared by the accountants themselves allegedly on the basis of the accounts of the management section. The disputed repayments to Mr. Koo of $6,000 were vouched for by document 92, top, (the receipt) which fell quite outside the date of the accounts supposed to be the subject of audit. 130. I will say no more about this “audit” account except that it was of no assistance whatever to the Court and was, to borrow a phrase from Mr. Wei, monumentally self-serving. 131. It thus transpires that some of the mutual allegations of libel have been proved and others not. The plaintiffs have proved five libels, the defendants one and the various defamatory statements must now be considered against the overall background of the Association and its affairs. 132. That there was genuine concern about the slipshod handling of the Association’s affairs by the defendants and others cannot be disputed. The group of 52 represented approximately twenty per cent of the membership of the Association and so large a proportion of members do not come together in a series of meetings critical of management, unless they have or seriously believe that they have, cause for disquiet. The focal point of that disquiet was the absence of annual accounts for a period of four years and, the production of such accounts being a constitutional duty of those entrusted with the running of the Association, this disquiet was thoroughly justified. It has proved irrelevant for the defendants to point to the existence of monthly accounts displayed in an overstuffed notice board in the office which was, in reality, the private work place of Mr. CHUNG Chun-kau. Some of the 52 knew, or should have known, of the existence of such monthly accounts; others apparently did not. But throughout the whole case there has been no satisfactory explanation of the absence of annual accounts, or indeed, of the failure to hold annual general meetings. It is one thing to say that no accounts were produced for the years 1965 to 1967 because of riots in 1967 but, flimsy as that explanation is, it is quite another thing to continue to fail to produce them when the riots are over – and to fail to produce accounts for 1968 until after this dispute had arisen. 133. The 52, including the plaintiffs, had genuine reason for unease and discontent upon this question of accounts. Where the plaintiffs went wrong was first, in exceeding their brief from the remaining members of the 52 and raising complaints, allegedly in the name of all, which went considerably further than the lack of accounts and secondly in communicating their complaints, including one which was libellous, to a non-member. In the result the plaintiffs’ letter to the 1st defendant (subsequently published to the remaining members of the 52 and to WONG Tim) contained a number of allegations of loose control and other matters which have been substantially justified except as to an imputation of personal dishonesty. 134. The defendants’ circular, although admittedly prompted by the plaintiffs’ communication to Mr. Koo was, on the other hand, characterized by pure venom. It began with a ludicrous assertion that the 2nd and 3rd plaintiffs were both mortified and motivated by the fact of failure in the 1969 elections. It was peculiarly within the knowledge of the defendants that the two had been successful in those elections and this extraordinary distortion can only have been the product of a desire to hit out at any cost at anybody with the temerity to criticise the running of the Association. 135. Both sides have pleaded s.26 of the Defamation Ordinance Cap.21 which runs:
136. The section does not, in fact, avail either side. Although I have held that the words complained of by the defendants are, with one exception, either not libellous or justified, that one exception (financial dishonesty) is of too grave a nature for the plaintiffs to hide behind s.26. The defendants, on the other hand, are unable to resort to the section because with five libels proved against them, it cannot be said that the words not proved to be true do not materially injure the plaintiffs’ reputations having regard to the truth of the remaining charges. 137. It is my task to estimate the injury done to both sides. The 1st defendant, Mr. Koo, is a man of some substance in Yuen Long, the sole proprietor of a construction company, the managing director of two land investment companies, a director of a restaurant company and a partner in a transportation firm. He is active in real estate and construction, has built or purchased a considerable number of houses and flats and, with others, has considerable investments in landed property. He is the Vice-Chairman of the Board of the Pok Oi Hospital, an executive director of the General Council of Associations of Yuen Long, Vice-Chairman of the Sports Association in that town, a member of the Executive Committee of the Town Hall and prominent in various other aspects of public life in Yuen Long. He is not a man likely to be tempted to put his fingers into the till of the Literacy Class for the sake of a monthly one thousand or few hundred dollars. 138. The Wai Chow Clansmen’s Association is to some extent Mr. Koo’s plaything and he, together with Mr. CHUNG Chun-kau, had been running it on somewhat unorthodox and unconstitutional lines. At the same time he is a patron of the Association, having donated his own money to the Association’s Public School Building Fund and to inauguration ceremonies and having from time to time advanced his own money to the School Building Fung by way of an interest-free loan. 139. The allegation of personal dishonesty in regard to the finances of the Literacy Class was published to the remaining members of the 52, that is to say, to something between 40 and 50 of a total of approximately 260 members in the Association. 140. I assess the damages in respect of this libel at $12,000. 141. The 1st plaintiff is in the fashion tailoring and piecegoods trade in Yuen Long; the 4th plaintiff is the proprietor of a goldsmith’s shop in that same town whereas the 5th is a casual restaurant worker; the 6th plaintiff describes himself as a book-keeper and has from time to time worked concurrently as a book-keeper and the foreman of a building site. The 2nd, 3rd and 7th plaintiffs did not give evidence and I have no record of their occupations but equally no reason to think that they are not persons of good repute. All have been libelled. 142. The libel complained of in para.9 of the Statement of Claim was a libel upon seven separate individuals. Each is entitled to his good name or, if injury be done to it, to compensation for that injury. All the libels upon the plaintiffs were published to approximately 260 persons; this can be deduced from the evidence as to the quantative membership of the Association and from the heading to the defendants’ circular which ran:-
143. I assess the damages in respect of this libel at $28,000. 144. The words complained of in paragraph 10 relate to the 1st plaintiff only and to him I award $4,000 in respect of that libel. In regard to that alleged at paragraph 14 of the Statement of Claim I assess the damages at $7,000, and in respect of that alleged at paragraph 15 at $4,200. The separate document complained of at paragraph 17 of the Statement of Claim (document 13 and 13A) relates to the 1st plaintiff only and to him I award the sum of $4,000 in respect of that particular libel. This last award is against the first three defendants only since the 4th and 5th did not sign that defamatory letter. The total award to the plaintiffs is thus $47,200 of which $8,000 is awarded to the 1st plaintiff individually. 145. The assessments of damages are straightforward assessments based upon the nature of the particular libel, the degree of circulation given to it and the number of persons libelled. That is to say, I have not allowed the assessments to be complicated by factors of either mitigation or aggravation. 146. Thus the plaintiffs all succeed upon their claim. The 1st defendant succeeds upon his counterclaim and the 2nd, 3rd, 4th and 5th defendants fail upon their counterclaim. 147. I will hear counsel as to costs.
R. Wei (H.M. So & Co.) for plaintiffs Bernacchi Q.C. & B. Lin (P. Mo & Co.) for defendants ([3]) (1826) 3 Bing. at p.440. ([4]) (1884) 5 Q.B. 731 at 744. * 1933 49 C.L.R.372/373. ** 1933 49 C.L.R. 375. *** 1933 49 C.L.R. 376. | ||||||||||||||||||||||||||||||||||||||||||||