Man Kin Ping t/a Keung Kee Meat Co v. Yum Koon Shan

DCCJ 2664/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 2264 OF 2012

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JUDGMENT

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Background

1.This is an unusual defamation action commenced by a frozen meat shop proprietor Mr Man Kin Ping (“Man”) against his ex-employee, Mr Yum Koon Shan (“Yum”), seeking to injunct Yum from publishing defamatory words about Man and claiming general damages.

2.This is unusual in that while all along I was given to understand that this was a slander action, Man sought to turn it into a libel case by the lodging of the opening submissions by his counsel Mr Ko, on his behalf.  In the absence of any suggestion or indication in the Statement of Claim that the defamatory imputations under complaint are conveyed in written words, I assumed that those disparaging remarks were spoken and my assumption persisted despite the two pre-trial reviews. Mr Ko clarifies at the outset of the trial that notwithstanding all the pleaded complaints in the Statement of Claim, Man now only relies on one single complaint relating to a disparaging remark made by Yum in a claim form lodged with the Labour Department dated 3 August 2011 (“the Claim Form”).

3.The two abandoned complaints relate to those allegedly defamatory remarks published by Yum to Independent Commission for Against Corruption and the police separately. In light of the legal arguments raised by Ms Chan, counsel for Yum in her opening submissions, Mr Ko, rightly in my view, abandons those two complaints.

Man’s pleaded case

4.Paragraph 4 of the Statement of Claim contains the whole of the alleged defamation and is reproduced as follows:

“On or about the 3^rd August 2011, the Defendant made a false and defamatory complaint to the Labour Department in Hong Kong stating inter alia, that the Plaintiff had illegally and improperly dismissed the Defendant. The Defendant falsely claimed that the Plaintiff had fired him on the 2^nd of July 2011 at the aforesaid Business and that the Plaintiff had stated in public that the Defendant had submitted a false sick leave certificate. This matter was eventually brought to Kowloon City Magistracy for trial in Case No. KCS 4443/2011 and the Plaintiff was acquitted in respect of the aforesaid summons by the Learned Magistrate on the 12^th June 2012.”

5.As said, it transpires that Man now relies on the Claim Form, which was marked “RESTRCITED 限閱文件”. The Claim Form was a standard form with information filled in by Yum in his own handwriting. Under the section relating to termination of employment contract, Yum ticked the two boxes under the heading of unreasonable and illegal dismissal. The two boxes were “employees dismissed in the course of paid sick leave” (僱員在有薪病假期間被解僱) and dismissal prior to the conclusion of an employees compensation claim (在工傷案件未完結前被解僱 (渉及違反僱員補償條例)).

6.Mr Ko explains that the core complaint is based on the tick of the first box in the Claim Form whereby Yum falsely stated that he was dismissed at a time when he was granted sick leave and this was in contravention of section 48 of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”). The pleaded case of Man is that in truth Yum on or about 2 July 2011 suddenly left the employment without returning thereafter and hence the employment was terminated by Yum’s resignation and not by the alleged dismissal.

7.It is common ground that Man and Yum had a dispute on 2 July 2011 and the employment was terminated after the dispute. It is also not in dispute that Yum obtained 7 days’ sick leave commencing on 2 July 2011. In his closing submission, Mr Ko agrees that this action stands or falls by my factual finding as to the true cause of the termination of Yum’s employment. He accepts that should I find that Man did dismiss Yum on that day, his action must be dismissed.

8.I note that Mr Ko does not rely on the pleaded complaint that Yum falsely alleged that Man stated in public that Yum had submitted to him a bogus sick leave certificate. Nor does Mr Ko rely on the tick of the second box in the Claim Form though it must be incorrect. There was no claim under the ECO afoot when Yum’s employment was terminated at all.

9.The crisp factual issue identified by Mr Ko is indeed attractive in that it alone may be determinative of the present action. Nevertheless, I could not lose sight of the glaring deficiencies of the Statement of Claim. The Claim Form was not even mentioned in the Statement of Claim. Nor were the infringing words set out verbatim and their natural and ordinary meaning is nowhere to be found.

10.I have already in my previous decision handed down on 11 December 2013 in these proceedings said sufficiently about the importance of pleadings when I showed my concern about the state of the pleadings. I further referred to the observations of Ma CJ in Kwok Chin Wing v 21 Holdings Limited and Anor., unreported, FACV 9/2012, 30.9.2013 (§21). I need not repeat here.

11.On the other hand, Ms Chan is happy to deal with this factual dispute head-on. In the Defence prepared by Yum in person, he already insisted on the validity of the complaints he lodged with the Labour Department. He expressly denied that the complaints were false and defamatory.  His evidence, both written and oral, covers the incident on 2 July 2011.

12.On this basis, I agree to adopt the unusual approach to resolve the parties’ dispute in accordance with their substantive rights notwithstanding the unsatisfactory state of the pleadings. I would first make a finding as to whether Yum was dismissed by Man or he himself resigned on 2 July 2011. In the event that I find that Yum resigned and hence his complaints to the Labour Department in the Claim Form were both defamatory and false in that Man was thereby implicated to have committed a crime under the ECO, I shall proceed to consider whether there is any defence open to Yum. If there is none, I shall decide on the quantum of damages payable to Man.  

Plaintiff’s Evidence on the Specific Factual Issue

13.I shall set out the evidence of the protagonists relating to the incident on 2 July 2011 in some detail for the purpose of resolving the specific factual issue.

14.Man was the sole proprietor of his frozen meat business traded under the Chinese business name of 強記肉食公司. The business was operated at his shop located at To Kwa Wan, Kowloon. Man operated his business with the assistance of his wife, his sister and Yum.

15.Yum was employed as a delivery worker. He drove and delivered frozen meats to Man’s customers. At around 2:00 p.m. on2 July 2011, Yum returned to the shop after making delivery for lunch. Man usually provided lunch to Yum. Then, Yum did not tell Man that he had been injured. Man reminded Yum that he had to man the shop with his sister the following day as he and his wife would go on a trip to the Mainland to pay visit to his relatives. Therefore, Yum could only have leave on the following week.

16.According to Man, Yum agreed to this agreement and so Man was rest assured that he could take the trip as planned on the following day.

17.At about 4:00 p.m., Man’s wife received a phone call from Yum. Yum told her that he had to see a doctor. Man’s wife then told Man that Yum allegedly injured his finger during work. She said she had asked Yum to show her his injured finger but Yum refused and hid his left hand behind his back. Yum just told her that the injury could be serious (可大可小).

18.At about 5:30 p.m., Yum called Man and told Man that he visited a doctor and the X-ray showed that the tendon of his left little finger was torn. Yum further told him that he hurt his finger when he tried to tear off the plastic tape tying up a pack of frozen shrimps. The tape broke suddenly and he swung his left hand towards another pack of frozen meat violently. As a result, his left little finger was injured.

19.Man expressed his doubt about Yum’s alleged accident. He did not believe that Yum had to use his hand to tear off the plastic tape when there was a cutter available to Yum. Man alleges that Yum was furious that Man did not trust him. Yum then yelled that he did not want to work for him anymore.

20.After this phone call, Man went to the freezer to make investigations. He found that there were other unsealed packs of frozen shrimps available and Yum did not have the need to open a new pack of frozen shrimps for delivery at all. That reinforced his disbelief.

21.So when Yum returned to the Shop at 7:30 p.m., a row between Man and Yum ensued. First, according to Man, Yum dangled a piece of paper outside the shop with his left hand bandaged up. He said it was a medical certificate granting him sick leave. The medical certificate is included in the trial bundle and it was issued by Kwong Wah Hospital. Yum was given sick leave from 2 July 2011 to 8 July 2011 inclusive for his little finger injury.

22.Yum let Man read the medical certificate. But Man still could not accept the occurrence of the accident. He found it to be surprising when Yum was absolutely all right during lunch. Man asked Yum to show him the X-ray diagram but Yum could not produce to him the same. Man hence did not believe Yum. Man knew that Yum actually wanted to take some days off to handle his private matters. He thought Yum just relied on the medical certificate to serve his purpose despite his agreement to work for him on the following few days.

23.Man accepted that he expressly told Yum that he found the circumstances of his injury very suspicious. Man told Yum that he did not believe Yum but since Yum had a medical certificate, he had no alternative but to accept his injury. He agreed that he had raised his voice during the conversation with Yum.

24.In the end, Yum was very frustrated. He complained that he had worked for Man for so long a time and did not know why Man still did not trust him. Yum said he was disappointed and decided not to work for him any more. Unexpectedly, Yum took some keys out of his pocket and handed them over to Man and left the shop. Man insisted that he never scolded Yum and dismissed him.

25.Since Yum left the shop, Man has never contacted Yum though he said he tried to call a few times but could not reach him.

26.Subsequently, Man heard from his customers including Ma Kwok Hung (“Ma”), Chiu Tak Shing (“Chiu”) and Tang Kuen Sun (“Tang”) that Yum published defamatory remarks about him and alleged that he dismissed Yum unfairly and/or unreasonably. I note that Man was not cross-examined on this hearsay evidence.

27.Man finally said he had been a proprietor for more than 20 years and he knew that he could not dismiss an employee during his or her incapacities. Indeed he has never dismissed any one of his employees.

28.All Ma, Chiu and Tang testified for Man. Ma is the proprietor of a frozen meat business and Man is his supplier. Chiu is a merchandiser of a restaurant and Man is one of the suppliers of the restaurant. Tang is a driver of a customer of Man. Ma and Tang alleged that in July or August 2011, Yum personally told them on separate occasions that, among other things, he was dismissed unreasonably by Man on 2 July 2011.

29.As regards Chiu, he alleged that a waitress of the restaurant for which he worked known as Madam Chan told him that in mid July 2011 Yum told her that he was dismissed by Man without reason. Madam Chan has left the employment and he did not know her whereabouts.

30.Mr Ko expressly confirmed that Man does not rely on their evidence to prove other causes of action against Yum though in law every republication of a libel is a new libel. Mr Ko submits that this evidence, if accepted, would justify a permanent injunction against Yum since he has the tendency of repeating the libel.  

Defendant’s Evidence on the Specific Factual Issue

31.Yum testified for himself and he had no other witness. For the accident, basically he maintained the same account which Man said he had related to Man. He did not accept that it was unnecessary for him to open another pack of frozen shrimps for delivery and that he should have used the cutter to cut off the tape. He was then actually working with Mrs Man and she knew that he injured his tendon of his little finger immediately after the accident. She even suggested to Yum that Man could fix it by pulling his little finger straight again in a jocular vein.

32.After the accident, Yum had still to do some delivery jobs. At around 2:00 p.m., he returned to the shop to collect his lunch box prepared by his employer. He met Man and Man did not tell him again about his trip to the Mainland on the following day and hence Yum had to stay at the shop to work throughout the weekend. Yum said Man actually told him about this arrangement before 2 July 2011. He also agreed that he did not tell Man about his injury then.

33.Subsequently, Yum returned home with his lunch box and found it necessary to have medical treatment for his injured finger. He called Mrs Man to tell her that he needed to see a doctor whose clinic would only be open at 4:00 p.m.. Mrs Man agreed.

34.First, Yum visited the private clinic of Dr Choy in Yaumatei. Dr Choy referred him to Kwong Wah Hospital. Yum then called Man and explained to Man his injury and gave him an account of the accident. Man expressly doubted his bona fide and suspected that he merely feigned the injury. Man asked Yum not to play game and if he wanted a holiday he should say so frankly. Yum accepted that he was frustrated but he categorically denied that he had ever told Man that he wanted to leave the employment. Yum told Man that he would return to the shop to give him further explanation after having treatment at Kwong Wah Hospital.

35.Thus, after having had an X-ray and medical treatment of his injured finger in Kwong Wah Hospital, Yum then returned to the shop and produced the medical certificate to Man for his inspection. Man was furious and kept scolding him with foul languages. Man also alleged that the medical certificate was a forgery. Man did not believe Yum’s injury was genuine. Yum insisted that he did not mention any sick leave and he just wanted to convince Man that he was genuinely injured but in vain.

36.At last, Man told Yum that the employer-employee relation should end there and then (賓主關係，到此為止). Yum sensed that Man had unequivocally fired him and so he stormed out of the shop. It suddenly occurred to him that he still had the car keys of Man’s business van in his pocket and so he returned to the shop. He dumped the keys onto a refrigerator forcefully out of anger. Yum was adamant that he never said he wanted to quit due to Man’s lack of confidence in him.

37.When he was on sick leave, on or about 8 or 9 July 2011, a friend of Yum asked Yum to attend a job interview. Yum attended and got the present job as a driver with a monthly income slightly more than that paid by Man on 11 July 2011. Yum said then he was in financial difficulties and so he needed a job badly.

38.Yum became Man’s employee on 1 March 2010 and agreed that the relationship between Man and him had been satisfactory prior to 2 July 2011 and they had no dispute before. Yum pointed out that Man had a quick temper and got agitated easily.         

39.I note that Yum said nothing about the allegations of Ma, Chiu and Tang and actually he was not cross-examined in respect thereof.

40.Afterwards Yum sought assistance from the Labour Department. He first submitted the Claim Form. Further, Yum submitted a form to make a claim for remedies under section 32I(a) of the Employment Ordinance, Cap. 57 dated 17 August 2011. In the said form, Yum also alleged Man terminated his employment on 2 July 2011 when he suffered incapacity in contravention of section 48 of the ECO.

41.I also note that Yum gave the same account of his dismissal in his witness statement dated 28 September 2011 lodged with the Labour Tribunal. There, he too mentioned the exact wordings of his dismissal uttered by Man (賓主關係，到此為止).

Analysis: Dismissal or Resignation？

42.This is not at all a straightforward issue. The evidential differences between Man and Yum as to what actually transpired in their argument on 2 July 2011 actually fall on a very narrow compass.

43.On the evidence, I am convinced that Yum did suffer injury to his left little finger in the course of his employment in the morning of 2 July 2011. The medical evidence should sufficiently silence Man. Whether or not Yum injured himself carelessly, why he was able to complete his delivery jobs with an injured little finger, why he did not show Mrs Man his injured finger and why he did not tell Man about his injury during lunch are not really relevant given the indisputable genuineness of his injury, supported by medical evidence. That said, I do accept that Yum’s explanation that he find it embarrassing to show Mrs Man his injured finger, which did not look good with a torn tendon at that time.   

44.In terms of credibility, I prefer the evidence of Yum on this critical issue. His testimony about the argument appears to be more reliable despite all the criticisms of Mr Ko. Such criticisms were rightly made but the unsatisfactory aspects pointed out were really insignificant on the core issue.

45.I have no doubt that Man was very frustrated about Yum’s injury. His travel plan was more or less disturbed as a result. I understand why he suspected the bona fide of the injury of Yum given the fact that he did not mention about his injury when they met during lunch hours. However, he should have accepted the medical evidence and found a solution to his predicament.

46.Man did not appear to me to be honest in the course of his testimony when he denied, not without hesitation, that he had questioned expressly the genuineness of the medical certificate during the argument. He admitted that he had strong suspicion about it even up till now but he, curiously enough, did not express to Yum his doubt about the genuineness of the medical certificate. I cannot accept his version.

47.In the heat of the argument, when emotions were running high, Man had no reason, and I do not think Man was able, to conceal his suspicion. He should have given Yum a piece of his mind and taken issue with Yum in respect of the medical certificate. I accept Yum’s evidence that Man did expressly allege that the medical certificate was a forgery.

48.I also note that Man’s pleaded case is that Yum suddenly left the employment and never returned thereafter. He did not mention anything about Yum’s alleged expression(s) of his intention to quit the job at all. 

49.On balance, I accept Yum’s evidence that Man did say to Yum that the employment relationship ended there and then, which is the pleaded case of Yum right from the outset, given his loss of objectivity and self-control due to serious distrust and frustration. That must be taken as an unequivocal indication of a dismissal. The employment was terminated by dismissal as a result. Whether Yum subsequently talked back and said that he wanted to quit is irrelevant. Under those circumstances, Yum might well have said so but I chose to accept his firm denial in his testimony.

50.Subsequent conducts of Yum also suggested that he was actually dismissed. I am not convinced why Yum had to tell others (Ma, Tang and Madam Chan) falsely that he was unfairly dismissed when in fact he resigned of his own volition. I can well understand Yum’s anger/resentment with Man after the termination of the employment. However, dismissal is, after all, a humiliating experience. Yum did not really have to fabricate a dismissal while he could make other false allegations about Man even if he intended to defame Man. I too do not understand how Yum’s publication of a false reason for the termination of his employment would assist him in his claim in the Labour Tribunal.

51.In light of the foregoing reason, I accept Yum’s evidence that the employment was terminated by dismissal and not by his resignation. For the avoidance of doubt, I accept that Yum never indicated to Man that he wanted to quit the job, whether in the telephone conversation in the afternoon or during the argument in the shop in the evening of 2 July 2011.

52.Given the fact that the dismissal took place immediately after the grant of the sick leave evidencing Yum’s incapacities, Yum had every reason to tick the first box in the Claim Form even it may carry defamatory imputations. His allegation was justified on the evidence. This is so despite the acquittal of Man in the subsequent criminal proceedings. I should add that the reasons of the acquittal are unknown to this court.  

53.By reason of the foregoing factual findings, as agreed by Mr Ko, Man’s claim must be dismissed.

Absolute Privilege?

54.I do not have to consider other possible defence if I find that justification is established by Yum. Ms Chan diligently did some research and sought to argue that the Claim Form was in any event covered by absolute privilege. In this regard, she relies on Wilson v Westney & Anor [2001] EWCA Civ 839 where Keene LJ held that any use of the witness statement before the employment tribunal would have been covered by absolute privilege.

55.Ms Chan then argues the Claim Form was filed for the purpose of commencing the proceedings in the Labour Tribunal and so it should also be absolutely privileged.

56.Strictly speaking, I do not need to deal with this argument given my foregoing factual findings. I should just wish to point out that it appears to me that the Claim Form was not filed for the purpose of section 11 of the Labour Tribunal Ordinance, Cap.25. It was apparently filed with the Labour Relations Division of the Labour Department for the purpose of conciliation. As I understand, parties may start proceedings in the Labour Tribunal with or without prior conciliation arranged by the Labour Relations Division.  

57.In the absence of real necessity and full debate, I shall refrain from expressing any views on the interesting arguments raised by Ms Chan.

Quantum

58.In the event that my factual findings are found to be incorrect, the following discussion about quantum may be relevant. However, I shall only be brief given my dim view of the merits of Man’s claim and the minimal assistance given to me on this issue.

59.The alleged libel was contained in the Claim Form. It was a restricted document for the use of conciliation only. There is no evidence that this libel in the Claim Form led to the subsequent criminal prosecution of Man. I have not been shown any documentary evidence relating to the criminal prosecution such as the charge sheet and the brief facts.

60.Mr Ko relies on two cases on the issue of quantum. They are Leonorah Boultery v Christopher Compton Stanley [2006] 4 HKC 563 and Au Yee Ming Ivan v Ng Fei Tip, unreported, DCCJ 4595/2008, 25.8.2010. Mr Ko readily accepts that the facts of these two cases are very different from the present case. I do not see how they can be relevant save the general principles set out there.

61.I bear in mind that damages are compensatory in nature: Gatley on libel and Slander, 11^th ed., §9.4. I fail to see how Man’s feeling was injured by the allegation in the Claim Form, which is a restricted document within the Labour Relations Division for very limited purposes.

62.In the circumstances, Man, even if his claim were to be allowed, can only be entitled to nominal damages, which in my view, HK$100 would be an appropriate figure.

Conclusion and Orders

63.For the reasons given above, I dismiss Man’s claim with costs to Yum, to be taxed if not agreed, with certificate for counsel.

Mr Tony Ko, instructed by Messrs Kent Tam & Co, for the plaintiff

Ms Leona Chan, instructed by Messrs Tang & Associates, for the defendant