Shuchi Singh v. Anamika Chhawal and Others

HCA 728/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 728 OF 2013

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D E C I S I O N

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1.The plaintiff (“Singh”) commenced the present action against the 1^st defendant (“Chhawal”), the 2^nd defendant (“Tolani”) and the 3^rd defendant (“Rezonance”) for their publications by email and on their facebook pages of matters allegedly defamatory of her since 28 April 2013. Singh claims for injunctive relief and damages.

2.By inter parties summons filed on 2 May 2013, Singh applies for interlocutory injunction against the defendants.  The summons was amended with leave on 7 June 2013, essentially to cover the instances of publications during the period between 28 April and 21 May 2013 as pleaded in the statement of claim.

3.The defendants appeared in person.  With leave of the court, Chhawal in her capacity as director also represents Rezonance.

WHAT ALLEGEDLY HAPPENED

4.Singh is a businesswoman in the apparel and fashion industry.  She was also a co-organiser of the Indian Dragon Boat Team (“IDBT”).  It was also in connection with the activity of the team that she has come to have contact with Chhawal.

5.Rezonance was in the business of, among others, event organising.  At all material times, Chhawal was the director and shareholder of Rezonance, while Tolani was the general manager.

6.At the night of 27 April 2013, Rezonance was organising an event at a club in Central. A group of persons, including Singh and her husband, were also at the same club; but they were not guests of the event.  In the small hours of 28 April 2013, certain men of that group allegedly misbehaved towards Chhawal and some of the guests of the event.  At one point, a female guest of the event was said to have been assaulted by one of these men.  The group, including Singh, eventually left.

7.Chhawal felt aggrieved by the episode at the club.  She suspected that the men responsible were members of the IDBT.  She therefore requested Singh and her co-organiser of the IDBT, Stuti Jani (“Jani”), to disclose the identities of the men said to be responsible.  Chhawal first did so by an email in the morning of 28 April 2013.

8.Attempts to get in touch with Singh failed.  In the same afternoon, Chhawal started to post on her page on www.facebook.com her version of the incident.  Photographs taken during the event, including the one depicting the man said to be the assaulter, were also posted.  Chhawal repeated her demand.  In doing so, the defendants resented that Singh and Jani were allegedly hiding from them as well as supporting violence on women by hiding the identities of the men responsible.

9.Eventually, Singh’s husband instructed solicitors, also those acting for Singh now, to contact Tolani on the same day demanding that the publication of matters defamatory of Singh should stop.

10.The defendants did not stop but escalated their criticism of Singh and extended the criticism to her husband and the solicitors.  By email on the same day, Tolani sent a 48-hour ultimatum for the disclosure of the identities of the men said to be responsible for the incident.  Tolani also suggested that a police complaint would be lodged.

11.On 29 April 2013, Chhawal went to the police station to file a complaint about the alleged assault, including that on her in the incident.  Photographs taken during the event were provided to the police together with the information of Singh.

12.Aware of that, Singh also went to the police station with her solicitor on 2 May 2013 to make a report, which was filed for investigation together with Chhawal’s complaint.  Appointment was made; and Singh gave her statement to the police on 14 May 2013.

13.The defendants continued their postings on their facebook pages about the incident and Singh as well as her husband.

14.On 30 April 2013, Singh commenced the present action and filed the inter partes summons for interlocutory injunction.

15.The statement of claim was filed on 4 June 2013, annexed with copies of the printouts of every instance of the defendants’ publication said to contain defamatory statements during the period between 28 April and 31 May 2013.

THE ALLEGED DEFAMATORY STATEMENTS

16.Pleaded in the statement of claim (§§ 5 to 33) were 29 instances of publication by the defendants, individually or collectively and by email or on their facebook pages, which are said to be defamatory of Singh.  The text of the publications were printed out, copied and annexed to the pleading (Annexure 1 to 29), with some of them repetitive in content.  As set out in Singh’s affirmations, the alleged defamatory statements include the following:

“Shuchi was there with her group……the worst was the woman in that group kept their lips sealed.” (Annexure 1; 12)

“Shame on Indian Dragon boat Team Hong Kong to support an Act of Violence against Women. Most Shameful aspect to the fact is its the women who are support this rapist act of men. These are the Educated Indians living abroad in Hong Kong. By locking us from your profiles Stuti Jain/Suchi Sambit Singh & Indian Dragon Boat Team you can get away with this behaviour now this will get ugly.” (Annexure 2)

“Indian Dragon Boat Team – HK supports Act of Violence against Women. Shame on the basic foundation of this group because the organisers Stuti Jain/Suchi Singh choose to hide the identity of the man behind such act.”

(Annexure 3; 4)

“……Its a act of shame that Stuti Jain & Shuchi Singh being women are supporting such shameful act of violence by their men.”

(Annexure 5; 6; 7)

“……you have supported violenc against women by hiding they’re identity

By doing so, you are giving protection to men who hit another women!!”

(Annexure 8; 9; 10; 13; 14; 15)

“Its a shameful act of support by Stuti Jain & Shuchi Singh for standing up for men who got no respect for women.” (Annexure 11)

“Mr. Sambit Mangaraj (vice president of EFG Bank Hong Kong) & his pregnant wife Mrs Shuchi Sambit were one of the main accuse of the IDBT indecent assault on a White woman.” (Annexure 16)

“Shambit Mangaraj & his wife Shuchi Sambit were the one who got that group & are responsible for the incident. Being the organiser of the IDBT, please ask your organiser why are they hiding their faces now……”

(Annexure 17; 18; 19)

“……Mrs Shuchi & IDBT is trying their best to cover up this case & protect the identities of these men……” (Annexure 20; 21; 22; 23; 25; 26)

“They can’t Silent us out or trap us in……Encouraging or Assisting a Crime are inchoate offences. Being Pregnant & Protecting the culprit does not make you law proof for your shameful action.” (Annexure 24)

“I AM A LAWYER & I FABRICTAE LIES WHEN I KNOW MY CLIENTS HAVE COMMITTED A CRIME I LOVE TO TAKE THEIR DIME AND MY NAME IS GILES” (as the designed dialogue in a cartoon)

(Annexure 27; 28)

“In their statement to the police they all aligning their lies ‘we just randomly meet him, dont know who he was.’……” (Annexure 29)

17.As pleaded, the publications invariably bear the following alleged defamatory meaning:

(1)  Singh tried to hide the identities of the man responsible for the physical attack on the woman, which was shameful and supportive of acts of violence against women.

(2)  Singh was responsible for the assault by the men; and has committed a crime.

(3)  Singh lied to the police in relation to the assault.

THE SUMMONS

18.By her summons, Singh seeks interlocutory injunction in the following terms:

(1)  the defendants, whether by themselves, their servants, or agents, or otherwise, be restrained from further publishing or causing to be published the defamatory statements (as defined in §§5 to 33 of the statement of claim) or similar words defamatory of her;

(2)  the defendants, whether by themselves, their servants, or agents, or otherwise, remove the above defamatory statements or similar words defamatory of her from facebook.com.

19.The interlocutory injunctions being sought reflect the final relief claimed in this action.

THE LAW

Defamation

20.In the context of defamation, the principles in American Cyanamid v Ethicon Ltd [1975] AC 396 governing the grant of interlocutory injunction come to be applied with additional caution.

21.The general principle is that interim injunction normally will not be granted in defamation proceedings where the intended defence is justification, fair comment or qualified privilege, unless it could be shown that such defence, if raised, is practically unsustainable.

22.The leading authority is Bonnard v Perryman [1891] 1 Ch 269.  Bonnard itself was not on counsel’s list of authorities but, not surprisingly, referred to in those cited by counsel.  In Target Newspapers Ltd &Ors v Narain [1989] 2 HKC 16, the Court of Appeal explained (at 23B-H):

“……we bear in mind the principles enunciated in the following extract from the judgment of Lord Coleridge CJ at p 284 of Bonnard v Perryman, with which the other four members of the court agreed:

But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher MR in Coulson v Coulson: ‘To justify the court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the court would set aside the verdict as unreasonable.’

This principle was reaffirmed by the Court of Appeal in Herbage[1]:

It is an old and well-established principle that an interlocutory injunction will not be granted in defamation proceedings to restrain a defendant who intends to justify his statement from repeating the publication of the alleged defamatory statement until the question of whether the statement is or is not defamatory has been determined at the trial – except in cases where the statement is obviously defamatory.

It follows from what we have said that we do not think that the plaintiff has surmounted the extremely difficult hurdle he must clear in order to obtain interlocutory relief – a task that almost invariably is greater than that which a plaintiff in a libel action must face at the trial itself.”

23.It has therefore been said that the American Cyanamid principles do not apply in defamation cases: see Target Newspaper Ltd (at 19E-I).  I notice that in saying that, the Court of Appeal in Target Newspaper Ltd actually accepted that as counsel’s propositions, without referring to the earlier judgment of the appellate court in Cheng Chi & Ors v Chan Hok Man & Ors [1984] HKC 35.

24.In Cheng Chi (at 41E-H), the appellate court also heard similar proposition that the American Cyanamid principles do not apply to defamation cases.  The case of Herbage (referred to in Bonnard above) was referred to.  The Court of Appeal considered that a close reading of Herbage suggests that the English Court of Appeal there only meant that the American Cyanamid decision does not affect the special considerations which are applicable to defamation cases.

25.It is therefore necessary for a party seeking interim relief to satisfy not only the tests applied in defamation cases but also those which govern other forms of interlocutory injunction, by virtue of the American Cyanamid case.

Contempt of court

26.Mr Reynolds for Singh advanced another, and in fact his primary, argument in support of his client’s application.  He submitted that the publications after 30 April 2013 (date of the writ) constituted a prima facie case of contempt of court, which the court ought to restrain.

27.Mr Reynolds started by referring to Vine Products Ltd v Green [1966] Ch 484.  Buckley J considered the case as one involving the right of the press and the need to ensure that proper trial of actions in court should in no way be prejudiced by the publication in the press.  His Lordship said (at 496A-B):

“It is a contempt of this court for any newspaper to comment on pending legal proceedings in any way which is likely to prejudice the fair trial of the action. That may arise in various ways. It may be that the comment is one which is likely in some way or other to bring pressure to bear upon one or other of the parties to the action, so as to prevent that party from prosecuting or from defending the action, or encouraging that party to submit to terms of compromise which he otherwise might not have been prepared to entertain, or influence him in some other way in his conduct in the action, which he ought to be free to prosecute or to defend, as he is advised, without being subject to such pressure.”

28.However, the above proposition was considered to be too widely stated, when the House of Lords had the chance of considering the subject of contempt for the first time in AG V Times Newspapers [1974] AC 273.  The House of Lords considered that it was contempt of court to publish material which prejudged the issue of pending litigation or was likely to cause public prejudgment of that issue.  The House of Lords also made the following points:

(1) As a general rule, it may be permissible by fair and temperate comment and without any oblique motive to urge a party to litigation to forgo his legal rights (at 299B-C, per Lord Reid).

(2) Contempt of court in a civil action is not restricted to conduct calculated to prejudice a fair trial by influencing the trial or the witnesses, but extends to conduct calculated to inhibit suitors from availing themselves of their right to have legal rights determined by the courts by holding them up to public obloquy for doing so or exposing them to public and prejudicial discussion of the merits or the facts of the case before the action had been disposed of in due course of law.  Yet if the discussion of topics of legitimate public concern has the indirect effect of bringing pressure to bear on a particular litigant to abandon his action, that must be borne because of the greater public interest of maintaining freedom of discussion on matters of public concern (at 310F-H; 313A-B, per Lord Diplock; 314C, per Lord Simon).

(3) A distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the law on the one hand and public abuse of him for doing so on the other (at 313D-F, per Lord Diplock).

(4) It is not wrong to seek to influence a litigant; if the writer states the facts fairly and expresses his view temperately.  The fact that the publication might bring pressure to bear on a litigant should not make it a contempt of court (at 326C, per Lord Cross).

29.The above principles in AG v Times Newspapers were applied in subsequent cases including the Hong Kong cases of AG v Cheung Kim Hung & Anor [1997] HKLRD 472; Grand Union Insurance Co Ltd v Clyde & Co & Ors [1988] HKC 464; and Kabushiki Kaisha v Yakudo Group [2003] 1 HKLRD 391 as well as the Australian case of Commercial Bank v Preston [1981] 2 NSWLR 554, all referred to by Mr Reynolds.

CONTEMPT

30.Mr Reynolds advanced the contempt of court as his first ground; and submitted that if the court is with him on that, it would be unnecessary to proceed to consider the application on the ground of defamation.

31.I would not speculate whether it is the heavy burden to surmount in order to restrain alleged defamation as an interim measure, as mentioned above, that caused counsel to adopt his approach.  But a few things should be noted about this ground of application.

32.The ground of contempt is premised upon the defendants’ publications since the commencement of the present action (date of writ being April 2013).  However contempt of court was never a pleaded ground, notwithstanding the inclusion of the post-writ publications in the statement of claim filed in June 2013.

33.Further, no distinction is actually struck in respect of the effect of the pre-writ and post-writ publications in the pleading.  As pleaded (§34 of the statement of claim), the effect of the publications is that:

“the plaintiff has been brought into hatred, ridicule and contempt by the publication of the aforesaid defamatory statements and has otherwise been greatly damnified.”

34.The word ‘contempt’ in the above paragraph of the pleading, however, must be referring to Singh as the victim of defamation; and not contempt of court.  Buckley J in Vine Products Ltd (above) (at 496F) had this to say:

“The plaintiffs do assert that the article has caused and will cause damage to their reputation as traders. That circumstance, if it be the fact, would not alone constitute the article a contempt of court, for, unless the damage to their reputation was such that they were in some way or other influenced in their conduct of the action, the damage would be irrelevant to the proper trial of the action. They might have some remedy upon some other cause of action, but it would not constitute the article a contempt of court.”

35.In her affirmations, Singh refers to the abuse of Singh and threats, even of violence, posed by the defendants in the defendants’ pre-writ publications.  Insofar as they are said to be contemptuous, the pre-writ publications apparently have not influenced Singh to yield or forgo her rights.  Quite on the contrary, she commenced the present action.  All the pre-writ publications are now pleaded and relied on as the basis for the claim for defamation.

36.It is argued that the present case may be tried by jury; and the defendants’ publications are contemptuous in that they may make the jury approach the case without a completely open mind.  It was suggested that there is a real risk that the proper trial of the pending trial will be prejudiced as a result of the prejudicial pre-judgment of issues, if the publications were not restrained.

37.In the decided cases cited, the party aggrieved (or the Attorney General) invariably sought the court’s intervention to prevent the publication (be it brought about by the other party to the pending action or a third party such as a newspaper) from influencing potential jurors (or witnesses) and thus the unacceptable consequence of prejudicing the fair trial of the parties’ issues and rights in the pending action.

38.However, in the present case, Singh framed her claim on the basis of the various publications by the defendants, be they pre-writ or post-writ, under the sole cause of action for defamation.  The post-writ publications, like the pre-writ publications, are the very things that the jurors, if indeed the case, would have to consider in order to adjudicate on the claim for defamation.

39.Singh then framed her summons on the basis of the defamatory statements “as that term is defined in paragraphs 5 to 33 of the statement of claim”.  This is an application for interlocutory injunction to restrain alleged defamation, not contempt.

DEFAMATION

40.Properly read and understood, the statements published by the defendants (mentioned above) are prima facie defamatory of Singh.  In the publications and the affirmations filed for the present application, the defendants indicated that they stood by what they stated as the truth.  Hence the defence of justification effectively.

That Singh tried to hide the identities of the men responsible for the alleged assault

41.Singh’s statement to the police dated 14 May 2013 reveals that the police asked her to identify 2 men depicted in the photographs presumably provided by Chhawal when she filed her complaint earlier.  Singh confirmed that first man was present at the party at the club on 27 April; and provided this man’s mobile phone number to the police.  This was apparently the man whom the defendants accuse of for the alleged assault on the Caucasian woman.  Singh identified the second man in the other photograph as a member of the IDBT; and confirmed that he was not present at the party at the time.  Nevertheless she provided the police with the mobile phone number of the captain of the team in order to be able to contact this other man.

42.So it was not that Singh had no information about the man that the defendants identified as the assaulter.  Singh indeed did not accede to the defendants’ requests for the information about this man.  However, unless she witnessed the alleged assault involving the man, Singh could not be said to be hiding the man’s identity.  In her affirmation, Singh specifically denied the implication that she witnessed the alleged assault.  The 1^st defendant stood by what she stated; and could name witnesses of that incident.  The factual dispute in this respect becomes central to the defence of justification.

43.Mr Reynolds referred to what Walsh J said in Stocker v McElhinney [No 2] [1961] NSWR 1043 at 1049:

“I would agree that if some evidence were put forward which raised, prima facie, a real issue of fact as to some relevant matter, this might be a sufficient reason to refuse an injunction, even although the balance of the evidence on that issue as it the stood might appear to favour the plaintiff rather than the defendant.”

44.At this stage, no conclusion could be drawn in respect of the dispute as to whether Singh witnessed the alleged assault.

45.In Target Newspaper Ltd (above), the defendant contended that what was written in the newspaper article in question consisted of true facts and its fair comment on a matter of public interest.  The Court of Appeal found that the jury or the trial judge would be the proper tribunal to decide the question of whether or not it was libel.  It was impossible to say that the meaning of the relevant words was so plain that in interlocutory proceedings a judge might justifiably rule out such a possibility.  In line with Bonnard, I say the same here.

46.I am not prepared to grant an interlocutory injunction to restrain the defendants’ statements containing this specific criticism of Singh.

That Singh has committed a crime

47.The statement that Singh committed a crime was contained in Annexure 27 and 28, which was the designed dialogue for the characters in the same cartoon.  It suggested that the solicitors for Singh fabricated lies when he knew his client had committed a crime.  By her comments on her page, Chhawal endorsed the cartoon and described Singh as criminal.

48.The cartoon was apparently posted by a third party facebook user; but allowed to remain and be repeated on Chhawal’s facebook page.  One is unable to tell on what basis Chhawal endorsed the suggestion that Singh committed a criminal.  By basis, I mean sound legal basis rather than the alleged ‘inchoate offences’ of ‘encouraging and assisting a crime’ suggested by the defendants in Annexure 24.

49.I say the same in respect of the statement in the cartoon in relation to Singh’s solicitors.  The solicitors were not present at the event on 27 April.  It is the duty of the solicitors to act on their client’s instruction.  The statement that Singh’s solicitors knew that their client had committed a crime; and that they fabricated lies (on behalf of Singh) lacks objective factual basis.

50.As far as it was directed against Singh, I see no basis for any defence in respect of the statement that Singh has committed a crime.

That Singh lied to the police

51.The statement that Singh lied to the police in relation to the assault was contained in Annexure 29.  Singh allegedly lied in her statement to the police.  The lie was that Singh just randomly met and did not know the man responsible for the assault.  However that was never the content of the statement of Singh to the police dated 14 May 2013.  In her statement to the police, there was not even mention of whether she witnessed the alleged assault.

52.Such statement of Chhawal’s is false as a matter of fact.  I see no basis for any defence in respect of her such statement.

CONCLUSION

53.I refuse the application on the ground of contempt.

54.On the ground of defamation, I accept that the statements suggesting that Singh has committed a crime and that she has lied in her statement to the police are clearly defamatory.  I accept that the other elements of the American Cyanamid test tilt in favour of the grant of an interlocutory injunction restraining publication of such statements.

55.I therefore grant an order that until the trial of this action or further order of the court:

(1) The defendants, whether by themselves, their servants or agents or otherwise, be restrained from publishing by any means the defamatory statements contained in Annexure 27, 28 and 29 to the statement of claim herein or words to the effect that the plaintiff has committed a crime or the plaintiff has lied in her statement to the police;

(2) The defendants, whether by themselves, their servants or agents or otherwise, do forthwith remove or cause to be removed the defamatory statements mentioned above from their respective page on www.facebook.com;

(3) Liberty to apply.

56.As to the costs, I give leave to the parties to make submissions in view of the above result; for the plaintiff to do so in writing in 14 days and for the defendants to do so in response in 14 days upon service of the plaintiff’s submission on costs.  Costs order shall then be dealt with on paper.

Mr G O C REYNOLDS, instructed by Messrs Hart Giles for the plaintiff

The 1^st defendant, in person, present

The 2^nd defendant, in person, present

The 3^rd defendant, represented by director, the 1^st defendant