Mok Kam Kwai v. Lam Mo Fat
Read the full judgment text of HCA 1868/2010 on BabelCite. This High Court CFI judgment was delivered on 6 March 2014.
1. This is a libel action which the plaintiff commenced in December 2010.
Cited by 20 cases · Cites 10 cases
|
HCA 1868/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1868 OF 2010 ________________ BETWEEN
________________
__________________ J U D G M E N T __________________ Introduction 1.This is a libel action which the plaintiff commenced in December 2010. 2.During a period of several weeks from July to August 2010, several banners were displayed at conspicuous spots of Pai Tau Village, Shatin. 3.The plaintiff was expressly named in some of these banners, and he complains that they were defamatory of his reputation. Four banners are involved in this action (“the offending banners”). 4.The claim is brought against the defendant, but he denies the claim, contending principally that:
The Offending Banners 5.All of the offending banners measured several metres long and about one metre high. 6.Because Pai Tau Village faces several buildings, banners displayed can be seen by the public (both vehicle passengers or pedestrians) en route to/from Shatin railway station and:
(collectively “the said buildings”) It can be inferred there must be quite some pedestrian and vehicular traffic in the vicinity. There is however no evidence as to the relative traffic volume proportion between the local residents and the “non‑locals”. (a) 1st Banner 7.The contents of the 1st banner relied upon are:
8.The pleaded defamatory meaning is:
(b) 2nd Banner 9.The contents of the 2nd banner pleaded by the plaintiff are:
10.The pleaded defamatory meaning is:
(c) 3rd Banner 11.The relevant parts of the 3rd banner read:
12.The pleaded defamatory meaning is:
(d) 4th Banner 13.This states:
14.The pleaded defamatory meaning is:
Background 15.Pai Tau Village is located near Shatin railway station and the said buildings; separating them is Pai Tau Street. 16.As early as in the 1990’s, a proposal was made to build a footbridge to help lessen the heavy traffic (pedestrian and vehicular) between Shatin railway station and the said buildings. 17.The Pai Tau Village residents did not welcome the proposal, and, over the years, have put forth their views over the matter. This aspect forms a substantial part of the respective parties’ cross‑examination of the witnesses. 18.Since 2004, the plaintiff has been the chairman of the said rural committee. By virtue of this office, he also becomes a member of the said district council. 19.The defendant is an indigenous inhabitant and has been Pai Tau Village’s village representative since 1990. 20.As will be elaborated below, the hanging up of the banners (including the offending banners) at Pai Tau Village has its origin in the said footbridge proposal. The matter was discussed by the said rural committee as well as the said district council. The plaintiff was involved by virtue of his offices. The Traffic and Transport Committee of the said district council ultimately approved it in early May 2010 (“the said district council’s approval”). The plaintiff accepts that he would have voted in its favour if he had not left the meeting room. Publication of the Offending Banners 21.Initially the defendant denies he had anything to do with the hanging up of the offending banners (or indeed any of the banners). In February 2014 the plaintiff filed a supplemental witness statement, alleging that the defendant was seen single‑handedly hanging up the 1st banner, and exhibiting the matching photographs. In a responding witness statement (11 February 2014), the defendant admits the act, but still maintains that he was not involved in the publication of the rest of the offending banners. 22.The defendant’s witness statement discloses (among other things):
23.Whether in his pleading (including the further and better particulars) or his witness statements, the defendant has not made clear:
24.However, the cross‑examination (and his in‑court clarification of his description of the May 2010 meeting in his witness statement) shows that:
25.The defendant is equally evasive about whether he also approved of the contents of the banners (especially the offending banners). He denies knowledge about them before trial. When cross‑examined about whether he agreed with them, he said he neither supported nor disagreed with them. When asked to clarify whether the contents of the banners had been discussed or agreed upon at the May 2010 meeting, he wavered back and forth, finally settling into an answer that phrases like “庸官”, or “蛇鼠一窩” had been mentioned at the May 2010 meeting, but did not state clearly if there was proper discussion of, let alone agreement on, the banners’ contents. 26.Insofar as it may be contended that the defendant’s testimony is that the banners’ contents have not been fully discussed or agreed upon, I find it to be inherently implausible, and thus incredible. In so concluding I have taken into account the matters set out in para 17, 19, 21, 22 and 24 above. At a meeting held for the stated purpose (para 22(b) above), and when the methods discussed and agreed upon is in effect to take the matter “to the street”, it is inherently implausible for the participants to vote “blind” (that is, without knowing the banners’ contents (or at least the general tenor of the same)). 27.One matter also relevant to this aspect is the defendant’s admitted role in Pai Tau Village; in this connection it is noted:
As such, it is implausible any discussion and/or resolution of major issues affecting Pai Tau Village (such as that raised at the May 2010 meeting) did not involve the defendant (or only had his passive involvement). 28.By reason of the above, I find as facts that:
(b) the contents of the offending banners (and the other banners), were known and agreed to by those present at the May 2010 meeting (including the defendant). 29.The relevant law has been summed up in Gatley on Libel and Slander (2013) 12th Ed, para 6.10:
30.By virtue of the above, I conclude that the offending banners were published by the defendant. Whether the defendant was the one who physically hung up the offending banners is therefore irrelevant. Imputations of the Offending Banners 31.The relevant law is set out by way of quotations from some of my earlier judgments:
Para 9, Wong Wai Kay v Hong Kong Economic Journal Company Ltd and Another [2013] 3 HKLRD 27 (emphasis supplied). (The references to the earlier edition of Gatley in the above quote correspond to the following paragraphs of the current edition (12th Ed): 3.17, 3.30 and 3.31)
Para 14 to 15, Oriental Press Group Ltd And Others v Fevaworks Solutions Ltd T/A Alive! Media and Communications and Another, HCA 597/2009 (25 February 2011) (emphasis supplied). (The corresponding references in the current edition of Gatley for the above quote are paragraphs 2.1, 3.14, 3.25 and 3.26) 32.The imputations of the offending banners have been set out above. The amended defence avers that:
33.On the threshold of seriousness to properly ground a defamation claim, Gatley says:
34.Factors for determining if the threshold has been met have also been given in Gatley (such as the nature and inherent gravity of the allegation, whether the publication was oral or written, or the transience of the publication). 35.The offending banners were not spontaneous verbal outbursts. Quite on the contrary, they were the product of a collective decision reached after deliberation in a meeting; even on the defendant’s own evasive account some of the wordings were discussed. The language used was excessive and sensational. The banners (including the offending banners) appeared to be products of an organized publicity campaign. Taking all of the above into account, the “sting” of the imputations is that the plaintiff:
36.The defendant argues that regard should be had of:
37.I agree with the plaintiff the defendant’s invitation to read the offending banners together with the other banners does not advance the defendant’s case. 38.In relation to the other banners displayed by Pai Tau Village, some of them actually made serious derogatory remarks such as:
If anything, they can only provoke more loose thinking, and prompt broad impressions or inferences of improper/corrupt conduct. 39.Similarly, I do not find it helpful to the defendant’s case (at least so far as liability is concerned) to consider the banners hung on behalf of the plaintiff (and/or the others, such as the said rural committee (“the plaintiff’s banners”)). The law does not impose on the plaintiff (as a claimant in a defamation litigation) to “mitigate” the defamation (although this may occur in practice): Gatley, para 33.51 and 33.53. Less still does the law require the plaintiff to absolve the defendant’s liability on the latter’s behalf. More importantly, it should be obvious to an ordinary reader the plaintiff’s banners were hung by “the other camp”; in other words, he would know that the plaintiff’s banners did not represent the views of those who published the offending banners. Honest/Fair Comments 40.To succeed, the defendant has to establish (among other things) the defamatory statements:
Because of the matters set out below, I conclude that this defence should fail. 41.First, a proper defence of “honest comment” has to specify the defamatory meaning which a defendant seeks to defend as comment: Gatley para 27.17, text to n 93. In this action, the amended defence expressly pleads that the comments were:
(para 35 thereof). There is no plea specifying the defamatory meaning, contrary to what is required by law. It is doubtful if this line of defence is properly open to the defendant as a matter of pleading. 42.I shall nonetheless continue the discussion of this line of defence assuming (in the defendant’s favour) that the above averments are also to be treated as the specified defamatory meanings. 43.But a statement concerning the plainitff’s mental state (“only [the plaintiff] knew . . . ”) is an imputation of fact (or at least capable of being such, as distinct from being a comment). An allegation that a person “work[s] for” another is similar. That being the case, the above averment does not satisfy the pleading requirement set out in para 40(1) above. 44.The amended defence does not aver that the above are based on facts either (para 40(2) above): Gatley, para 27.19, text to n 100; it merely pleads that those were “fair comments honestly made by the Defendant and/or other villagers of Pai Tau Village” (para 35 thereof). 45.A substantial part of the defendant’s cross‑examination of the plaintiff was directed at criticizing him for:
The defence purports to base the above criticisms mainly on the meeting minutes during the period from February 2004 to May 2010. However, a proper reading of the documents rather shows that the criticisms are unfounded; they show that:
46.Further, assuming (again in the defendant’s favour) that they actually establish the facts set out above, those facts cannot properly ground the comments set out in para 41(a) or (b) above (let alone the defamatory imputations set out in para 35 above). 47.It is common ground that “malice” (in the sense of the lack of an honestly held belief in the comment) will also defeat this line of defence: Gatley, para 12.36 (citing in support thereof Tse Wai Chun v Cheng [2000] HKCFA 86). The burden to prove malice lies with the plaintiff: Gatley, para 12.36, text to n 193. Merely because the defendant regurgitated the opinions of others does not of itself establish malice: Gatley, para 12.37. 48.The above, however, does not mean that malice (in the sense of the lack of a genuinely held opinion) can never be inferred based on the above; indeed, in appropriate circumstances such an inference may be proper. This action is one of such instances:
Accordingly, insofar as it may be necessary to do so, I conclude that “malice” has been established. Qualified Privilege 49.The defendant admitted during final submissions that this is the main plank of his defence (without expressly abandoning the other lines of defence). I understand the defendant is here attempting to put forth a line of defence based on the traditional form of qualified privilege (see also below). 50.The most helpful authority for this line of defence is the court of appeal’s decision in Blakeney‑Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 (where the defence of responsible public dissemination of information was also raised, and determined). The facts of the Cathay Pacific decision are entirely different, and therefore will not be repeated unless necessary to understand the legal principles propounded there. 51.The court of appeal has this to say in the Cathay Pacific decision about qualified privilege:
52.Having concluded that the defendant in the Cathay Pacific decision could not avail itself of the traditional form qualified privilege, the court of appeal went on to discuss the extended form qualified privilege (laid down in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, and became part of Hong Kong law via the Court of Final Appeal’s decision in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others (2012) 15 HKCFAR 299). 53.The court of appeal’s above decision is naturally binding on this court (the defendant has sensibly not contended otherwise; for example, that it was obiter dictum). 54.The defendant relies heavily on a number of Canadian authorities for the proposition that:
Those authorities include:
Reliance is also placed on the English court of appeal’s decision in Alexander v Arts Council of Wales [2001] EMLR 27. 55.The passages in the above authorities which the defendant submits can advance this part of his case include:
56.Whatever may be the merits of the approach adopted in those authorities, because of the distinction maintained in the Cathay Pacific decision between the traditional form qualified privilege and the Reynoldsdefence (see above) (which, as stated above, is binding on this court), it is incumbent upon this court to follow the said distinction. The same can be said of the other authorities relied on, such as the Australian decision of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 571. 57.In short, I find that the traditional form qualified privilege cannot avail the defendant. 58.First, I do not consider the defendant to have a duty to publish matters concerning the proposed footbridge to the general public (that is, a readership beyond the local villagers/residents and/or the potential users of the proposed footbridge and/or the roads in that vicinity). 59.The defendant’s reliance on s 6 (especially s 6(4)), Village Representative Election Ordinance (Cap 576) as showing a statutory duty to do so is misconceived. The statutory provision sets out the functions of an indigenous inhabitant representative (of which the defendant was one):
and
But the functions have to be read together with the other provisions of Cap 576 (such as Part 8 thereof (Rural Committee), and an indigenous village representative’s right to be a member of the rural committee), as well as those of Heung Yee Kuk Ordinance (Cap 1097). So understood, the statutory functions are not intended for an indigenous inhabitant representative to “take to the streets”. 60.Similarly, there was no corresponding interest on the general public’s part to receive the information. The proposed footbridge was a matter which should be of direct concern to those who may from time to time use it, or may in some way be properly considered to be affected by it (for example, people whose privacy, or property rights, may be affected). In this sense it was a “local” matter. 61.To the extent the defendant should somehow be able to rely on this line of defence, as a matter of law “malice” will defeat the defence: Gatley, para 17.1 to 17.20. But “malice” is a narrower concept in relation to honest/fair comment than in qualified privilege: Gatley, para 17.1, text to 1. 62.Gatley also gives a summary of “malice” in relation to qualified privilege (citing Horrocks v Lowe [1975] AC 135):
63.The above mental state can be inferred from things like:
(Gatley, para 17.4 to 17.5) Ill will or a desire to injure the plaintiff is unnecessary (Gatley, para 17.8); but mere absence of positive belief in truth is not “malice” (Gatley, para 17.6 and 17.17). 64.Para 48 above is repeated here. By virtue of those matters, further to inferring a lack of genuinely held opinion (which can constitute “malice” for the purpose of honest/fair comment), “malice” (in the sense set out under this heading) can also be inferred for this line of defence because:
Thus, if a finding for “malice” should become necessary, I find that it has also been established here. Responsible Public Dissemination of Information 65.This line of defence has also been called “publication on a matter of public interest” in Gatley, Ch 15. Again, the law in this regard has been set out in the Cathay Pacific decision. There, the court of appeal observed:
66.The defendant (correctly) accepts that facts and matters pertaining to a responsible public dissemination of information have not been pleaded or proven by evidence. The assertions made in the defendant’s final submissions that regard should be had to:
are insufficient to advance this part of his case. 67.I will therefore only state for the record that this line of defence fails. Quantum of Damages 68.Unfortunately not much assistance has been provided by the parties. 69.The Cathay Pacific decision awarded $700,000.00 for general damages; the plaintiff contends an award of $1 million should be made in his favour. Relying on Trumm v Norman [2008] EWHC 116 (QB), the defendant argues for nominal damages to be awarded; alternatively, the defendant submits a general damages award of $100,000.00, relying on Wong Ying Chow v Wong Hang Yin DCCJ 4078/2005 ($100,000.00 general damage awarded for a slander that the plaintiff defalcated land owned by others). 70.Besides the above decisions, I have also re‑visited earlier decisions which the court of appeal observed were:
These included decisions such as Yaqoob v Asia Times [2008] 4 HKLRD 911 and Hung Yuen Chan Robert v Hong Kong Standard (1996) 4 HKC 519 (the plaintiff here is of course not a practising solicitor). 71.The only similarity between those decisions and this action is the accusation made in public that the plaintiff was engaged in improper conduct. That apart, none of the above decisions bears resemblance to the defamation involved in this action (set out below). 72.First:
73.Secondly, it is common ground the plaintiff was at the time holding an office of honour. 74.Thirdly, the defamatory imputations’ “sting” is that the plaintiff was incompetent, derelict in the discharge of his duties of, and was unfit to hold, that office. 75.Although there is no direct evidence, it can be inferred from the general state of the evidence that the plaintiff enjoyed at least some degree of notoriety in Shatin. The apparent direct involvement of the publisher of the offending banners in the mattes complained of must have given some degree of apparent credibility to their contents (that is, an ordinary reader may find the allegations credible). 76.Judging from the undisputed evidence that there was often heavy traffic around the vicinity of the place of publication of the offending banners (which was part of the reasons for the proposed footbridge), the offending banners have probably been seen by a substantial number of people. 77.Bearing all of the above in mind, I agree with the plaintiff to the extent that general damages should be assessed at $400,000.00. 78.The defendant’s conduct since the publication of the offending banners is nothing to be applauded: he refused to apologise, and attempted to dodge liability by denying his involvement in the publication of the offending banners. Despite these, I am not satisfied that his conduct has reached the threshold for aggravated damages to be awarded; no such award will be made accordingly. Conclusion 79.Judgment is entered against the defendant on liability together with an award for general damages of $400,000.00 with interest. The prayer for other relief is refused. Other Matters 80.The parties’ written submissions also mentioned various other points. These have not been expressly set out or dealt with above. This is so only because of the need to balance between the length of the judgment and its comprehension. It does not mean those other points are thought to be irrelevant (or have been overlooked). To avoid doubt, those other points have also been considered. Costs Order 81.The usual rule that costs should follow the event is agreed to be applicable. There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the defendant to the plaintiff to be taxed if not agreed.
Mr Jenkin Suen, instructed by Lo, Wong & Tsui, for the plaintiff Mr Leon Ho, instructed by Chan, Lau & Wai, for the defendant |
Cases cited in this judgment