The Incorporated Owners of Tung Lo Court v. Tsui Wai Yip

HCMP 3089/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3089 OF 2014

(ON AN INTENDED APPEAL FROM DCCJ NO. 3333 OF 2011)

________________________

________________________

_____________

JUDGMENT

_____________

Hon Lam VP (giving the Judgment of the Court):

1.This is an application by the defendant for leave to appeal against the judgment of Deputy District Judge Mak on 4 August 2014. There were cross-claims of defamation before the judge. After trial, he found in favour of the plaintiff in respect of 4 statements and awarded to it damages in the sum of $400,000. He also found that the plaintiff had defamed the defendant in respect of 5 statements and awarded to him damages in the sum of $450,000. He ordered the defendant to pay to the plaintiff 55% of the costs of the action.

2.The defendant had applied for leave to appeal before the judge.  Leave was refused on 10 November 2014.  The defendant then applied on 24 November 2014 for leave from this court.  Some of the intended grounds raised before us were not raised before the judge.  No explanation was given by the defendant for not putting forwards those grounds before the judge.  In this connection, we reiterated what had been said in Jenho Development Ltd v Pensonic Technology (HK) Ltd HCMP 277 of 2013, 25 March 2013 at paras 4 to 7.

3.Having read the submissions of the parties, we decide to grant leave to appeal to the defendant on grounds 1 to 16, 24 and 27 of the draft Notice of Appeal placed before us.

4.We refuse to grant leave in respect of the other grounds which concern the counterclaim of the defendant.  We do not find those grounds to be reasonably arguable and there is no reason why leave should be granted in the interest of justice.  Some of them are new grounds and in light of what was submitted by Mr Cheng on behalf of the plaintiff, they are all unmeritorious.  

5.Draft grounds 17 and 18 challenged the judge’s holding that the plaintiff’s statements were made on qualified privilege occasions.  It is plain to us that the holding was correct in light of the relationship between the plaintiff and the owners of the building.

6.Draft grounds 19 to 23 challenged the judge’s finding on lack of malice on the part of the plaintiff in publishing the statements in question.  In essence, that is a finding of fact which we cannot discern any arguable grounds for disturbing.

7.Draft grounds 25 to 26 challenged the judge’s refusal to award aggravated damages and exemplary damages to the defendant on the counterclaim.  Again, we do not see any reasonably arguable basis for this court to intervene with the judge’s conclusions in these regards.

8.We are of the view that the application for leave on grounds 17 to 23 and 25 to 26 is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of High Court that no party may request the determination under para 4 to be reconsidered at an oral hearing inter partes.

9.The defendant should re-number his grounds of appeal in the Notice of Appeal to be issued excising from it those grounds on which this court has refused to grant leave.

10.We would make a costs order nisi that the costs of this application be in the cause of the appeal.

Mr Henry Cheng, instructed by S K Lam, Alfred Chan & Co, for the plaintiff

Mr Andrew Mak and Ms Kitty Tsang, instructed by Tang & Lee, for the defendant