Lee Sau Lai Alexandretta and Another v. Li Sau Sang

Case No.DCCJ 2191/2012

Court

District Court

Date23 Mar 2015

Judge—

Case Document

100%Judiciary

DCCJ2191/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2191 OF 2012

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BETWEEN
	LEE SAU LAI ALEXANDRETTA	1st Plaintiff
	QIU XIAO YAN	2nd Plaintiff
and
	LI SAU SANG	Defendant

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Before: Deputy District Judge Anthony Chow in Court

Date of Hearing: 7, 8, 9, 10, 11 and 17 April 2014

Date of Judgment: 23 March 2015

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JUDGMENT

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Background and agreed facts

1.This is a libel action.

2.The 1st plaintiff (“P1”) is the academic director of languages discipline of the Vocational Training Council (the “VTC”).

3.At the relevant time, the 2^nd plaintiff (“P2”) was the principal lecturer and the head of the language centre of IVE (Tsing Yi) (“LC/TY”) and is now an associate professor of the Technological and Higher Education Institute, which is a member of the VTC group.

4.The defendant is the project manager, engineering discipline in-service training office, VTC and the president of VTC Academic Staff Association (the “ASA”) which is 1 of more than 20 employee unions in VTC.

5.On 1 March 2010, a press conference was organized by the Hong Kong Professional Teachers’ Union (the “PTU”), the purpose was to air grievances by VTC staffs hired on short term contract and new remuneration packages.

6.7 language teachers attended the press conference. An external relationship officer of the VTC also attended the conference, but she was asked to leave after her identity was discovered.

7.On 31 March 2011 P1 was asked by P2 to speak on an adjourned staff meeting for LC/TY.

8.On 1 April 2011, Mr Yeung Wai Keung Frankie (“Yeung”), a member of ASA who attended the 31 March 2011 meeting, made a complaint to ASA through the defendant about P1’s 31 March 2011 speech. Yeung also made a secret recording of P1’s speech.

9.Also on 1 April 2011, P2 had a meeting with Mr Chung Chiu Tung Jordan (“Chung”), the chairman of ASA at the time. As a result of that meeting, Chung made a complaint to ASA through the defendant, about the content of his conversation with P2.

10.The VTC has a set of well known staff Complaints and Grievances Policy and Procedures. On 1 April 2011, the defendant filed complaints pursuant to the VTC’s Complaints and Grievances Policy and Procedures against the P1 on 2 April 2011, and against P2 on 1 April 2011.

11.The plaintiffs also filed complaints against the defendant pursuant to the VTC’s Complaints and Grievances Policy.

12.From 1 April 2011 to 22 May 2011, the defendant commenced publishing a series of chain emails, to a number of recipients in respect of P1 and P2.

13.The recipients included: inter alia, council members, the executive director, the senior deputy executive director, all three deputy executive directors, senior assistant executive director of headquarters division 1, all of VTC; principal of IVE (Tsing Yi); acting head of human resources division; 馮偉華(教協會長); 張文光(立法會議員及教協副會長); 梁敏儀(教協); 朱嘉妮(李鳳英議員辦事處); 鄺志堅(前立法會議員, 香港工聯會法律顧問); and 李鳳英(立法會議員,職業訓練局理事會成員).

14.On or about June 2011, in a report dated May 2011, VTC’s Administration Committee found the defendant’s allegations against the plaintiffs not substantiated, but the complaints against the defendant for sending excessive chain mass emails to over 1,000 recipients, were substantiated. As a result of the Administration Committee’s finding, a letter of caution was issued to the defendant.

15.The plaintiffs alleged that these emails were defamatory and filed this claim.

The claim

16.P1 alleges that of the defendant’s chain of emails, 22 of them were defamatory. P2 alleges of the defendant’s chain of emails, 18 were defamatory. (For easy of reference the chain of emails are attached as schedule A).

17.The plaintiffs isolated part of the aforesaid e-mails in the statement of claim and alleged that those words (the “Words”) in their natural and ordinary meaning imputed that P1 and P2:-

(a) were dishonest;

(b) were without integrity;

(c) were not tolerant and not broad-minded;

(d) abused their positions to intimidate, oppress and insult their colleagues and subordinates and caused fear, harassment and disturbance to them; and

(e) “witch-hunted” teachers who aired grievances to persons outside LC/TY and caused “white terror” among the staff.

(A copy of the Words with notation of the relevant emails and the imputation alleged by the plaintiff is attached as schedule B.)

18.Alternatively, the plaintiffs says that by way of innuendo the Words meant and were understood to mean the plaintiffs intimated, oppressed and insulted their colleagues and subordinates and caused them disturbance and harassment. That:-

(a) P1 and P2 intentionally “witch-hunted” teachers who have aired grievances to persons outside LC/TY;

(b) P1 and P2 acted against the interest of the staffs in LC/TY; and

(c) P1 and P2 seriously prejudiced and/or jeopardized the interests of staffs in LC/TY.

19.Further, the plaintiffs say that the Words were false and were published by the defendant maliciously.

20.P1 also says that the quote referring to her speech at the staff meeting on 31 March 2011 were taken out of context.

21.Finally, the plaintiffs relied on section 24 of the Defamation Ordinance Cap 21, Laws of Hong Kong.

The defence

22.The defendant states that his emails, when read in its’ entirety and in its’ context, the Words’ natural and ordinary meaning was not defamatory. The Words meant and were understood to mean:-

(a) Some staff of LC/TY felt intimidated by P1’s speech during the staff meeting on 31 March 2011, because of the suspected witch-hunting;

(b) Chung felt intimidated/harassed/disturbed by P2 during their meeting on 1 April 2011;

(c) ASA protested against the suspected witch-hunting by the plaintiffs;

(d) ASA protested against the suspected witch-hunting by the plaintiffs;

(e) ASA’s complaints against the plaintiffs had solid foundation;

(f) ASA demanded transparent and impartial investigation into the suspected witch-hunting by the plaintiffs; and

(g) ASA encouraged members of ASA and members of other VTC unions to seek help if they also experienced witch-hunting.

23.Even if the Words were defamatory, they were honest comments.

24.Alternatively, the imputation in respect of which the defendant is being sued is substantially true and hence the imputation was justified.

25.Further and to the alternative, the relevant emails were published on an occasion of qualified privilege.

26.Finally, even if the defendant was found to be liable for defamation, the plaintiffs did not suffer any increased injury to their feelings, due to defendant’s post-publication conduct.

The issues

27.The agreed issues are:-

(1) Whether the Words were defamatory either in their natural and ordinary meaning or by way of innuendo;

(2) If the answer to issue (1) is affirmative, whether the Words were fair comment on matters of public interest;

(3) Further and/or in the alternative to issue (2), whether the Words were published on an occasion of qualified privilege;

(4) Further and/or alternatively:-

(a) Whether the Words were false;

(b) If so, whether the defendant published the Words maliciously that:-

(i) he knew the Words were false; or

(ii) he ought to have known that there was no truth in the Words as he had no or no reasonable basis for believing in their truth or accuracy.

28.The agreed issues on relief are:-

(5) Whether an injunction should be granted against the defendant; and

(6) Whether the defendant is liable to pay damages including aggravated and/or exemplary damages, if so, the quantum.

29.Before I embark on the analysis of the issues, there are a number of factual disputes raised by the parties. Some of them are relevant but some are not relevant. I will deal with those that are relevant to the issues as they arise. Even if I do not mention them in my judgment, I have carefully considered all of the factual disputes before I came to my conclusions.

30.In respect to publication, although in paragraph 30 and 31 of the Statement of Defence, the defendant denied publishing 2 of the emails, because they were written by others and only included in his chain of emails, in his final submission Mr Carter Chim, counsel for the defendant, wisely admitted all relevant emails were published by the defendant.

Whether the Words were defamatory either in their natural and ordinary meaning or by way of innuendo

The Law

31.Although isolated and identified separately as the Words, there is no dispute that the chain of emails should be read as a whole. The learned authors of Gatley on Libel and Slander (12^th ed) stated:-

“It follows from the fact that the context and circumstances of the publication must be taken into account, that the claimant cannot pick and choose parts of the publication which, standing alone, would be defamatory.”

32.Whether the emails are defamatory is a matter of construction and not evidence. In Hung Yuen Chan Robert v Hong Kong Standard Newspaper Ltd & others [1996] 4 HKC, LePichon J (as she then was) held:-

“Whether the words complained of are defamatory is a question of construction and not of evidence. The first task that faces the court is to determine the natural and ordinary meaning of the words used. As stated by Lord Devlin in Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 at 277, when construing the words, the method of approach to be adopted must take into account the fact that ‘the layman’s capacity for implication is much greater than the lawyer’s’.

…

(a) The court decides the natural and ordinary meaning as a question of fact by attributing to the words the meaning which the court considers that they would convey to ordinary reasonable persons. It is not linked to the literal meaning of words but includes any inference or implication which would reasonably be drawn.

(b) The sense in which the words were intended is treated as irrelevant.

(c) the sense in which the words were in fact understood is treated as irrelevant though, it seems, regard will be had to the sort of people to whom the words were or were likely to have been published.

(d) The words are construed in their context.”

…

… the following guidelines can be extracted :-

‘The hypothetical reasonable reader was not naïve but not unduly suspicious. He could read between the lines. He could read in an implication more readily than a lawyer, and might indulge in a certain amount of loose thinking.

But he had to be treated as being a man who was not avid for scandal and someone who did not, and should not, select one bad meaning where other, non-defamatory meanings were available.’

See per Neill LJ in Hartt v Newspaper Publishing plc, Court of Appeal (unreported) The Times, 9 November 1989.”

33.I have read the email chains carefully and I have no doubt this hypothetical reasonable reader would find the emails, taken as a whole, defamatory.

The defamatory words

34.The actual defamatory words were too numerous to list out individually. I will only attempt to list a few examples here.

35.In the English emails, two phases were used often by the defendant to describe one or both plaintiffs, these are: “witch-hunting” and creating “white terror”.

36.The New Shorter Oxford English Dictionary defines “witch hunt” to be: “a malicious campaign against a group of people with unpopular of unorthodox views or behavior”.

37.The Merriam-Webster Dictionary (on line) defines “witch hunting” to include: “the act of unfairly looking for and punishing people who are accused of having opinions that are believed to be dangerous or evil” and “the searching out and deliberate harassment of those (as political opponents) with unpopular views”.

38.The Collins Cobuild Essential English Dictionary (1989) defines “witch hunt” to be: “a search for people who are thought to be responsible for things that have gone wrong, in order to punish them. The victims of a witch hunt are often innocent people who have strong and independent opinions, but have not actually done any harm”.

39.“White terror” is defined in wordiQ, an on line dictionary, as:-

“More generally, the term is used, mainly by leftist to describe a right-wing counterrevolution. In reference to the Chinese Civil War, the ‘White Terror’ was an attempted suppression of Communists and communist sympathizers by Chiang Kai-shek’s Kuomintang government. Beginning in 1927, the white terror spread through many major Chinese cities, most notably Shanghai.

…

In reference to the 228 Incident on Taiwan in 1947m the ‘white terror’ describes the suppression of political dissent and public discussion of the massacre. In the decades following the incident, many thousands of Taiwanese were imprisoned or executed for their real or perceived opposition to the Kuomintang government,…”.

The Analysis

40.The dictionary meanings of these phases are of course only the starting point in their construction, but reading the emails individually and as a whole, I find a hypothetical reasonable reader who is not naïve but not unduly suspicious can adscript no other possible meaning of “witch-hunting” and “white terror” than the plaintiffs had abused their positions to intimidate, oppress and insult their colleagues and subordinates and caused fear, harassment and disturbance to them.

41.Some of the other words used by the defendant were: “stop bullying or prosecuting teachers”, “the message disturbing or harassing”, “oppressing staff”, “causing disturbance, harassment and intimation to staff” and “the oppressions the teachers had suffered because they had expressed grievances”. The natural and ordinary meanings for these words when read within the content of the chain emails, taking specific consideration of the recipients and repetitiveness of the emails, need no explanation.

42.In the Chinese emails, some of the words used by the defendant to describe the plaintiffs were: -

“打壓投訴者”，“以逼迫恐嚇方法使下屬懼怕”，“用孤立分化手段令下屬彼此猜忌”，“弱勢員工的投訴一旦被壓倒，獨裁主管立即沾沾自喜，更變本加厲，大肆出言恐嚇”，“有關學術總監和部門主管「剷除異己」”，“語文學科領導出言恐嚇, 企圖令同工噤若寒蟬。”，“學術總監在31/3特別會議中對同工的恐嚇…總非偶然”，“曾因申訴不滿而被主管或總監逼迫而（精神上、事業上、金錢上、等等）蒙受損失”，“力證確實有人出言恐嚇令員工不安”，“明目張膽地向下屬出言恐嚇”，“以上司身份對下屬「出言恐嚇、欺壓逼迫」等言行…學術總監的冒犯他人的說話”，“秋後算賬”，“出言恐嚇”，“逼迫恐嚇”，“剷除異己”，“因投訴而孤立下屬”，“向下屬出言不遜”，“魯言莽語” and “誣蔑工會”。

43.The natural and ordinary meanings of these words in the Chinese emails when read with the content of the chain emails, taking specific consideration of the recipients and repetitiveness of the emails, also need no explanation.

44.In Lee Ching & Another v Lau May Ming [2007] 3 HKLRD 623, Poon J held:-

“Generally speaking, a defamatory imputation is one to the plaintiff’s discredit; or which tends to lower him in the estimation of others; or causes him to be shunned or avoided; or exposes him to hatred contempt or ridicule : see Gatley, on Libel and Slander (10^th ed, 2005) pp 28-29, para 2.1 applied by Cheung J (as he then was) in Drummond v Kwaku [2000] 1 HKLRD 604, at p 629C-E.”

Conclusion

45.There is no dispute that the defendant was describing the plaintiffs in these emails and as academic director of languages discipline for VTC and the principal lecturer and the head of the language centre LC/TY, paying particular attention to the Words, but analyzing them in the context of the whole of the emails chains, I find a hypothetical reasonable reader who is not naïve but not unduly suspicious will find the emails were clearly to the discredit of each and sometimes both plaintiffs and tends to lower them in the estimation of their colleagues and staffs, will cause them to be shunned or avoided and exposed them to hatred contempt and ridicule. These emails were defamatory and all 5 imputations alleged by the plaintiffs are clearly established.

46.If necessary, after reading the emails in full, I also find the hypothetical reasonable reader would find the email chains were defamatory by innuendo as well.

Whether the Words were fair comment on matters of public interest

47.In his final submission, Mr Chim, argued that given the factual background of the case, the defendant’s emails were merely stating what the plaintiffs had done and in the defendant’s opinion what these conducts amounted to. In other words, the emails merely stated the defendant’s suspicion or comment, based on the information the defendant received from Yeung, Chung and the other two anonymous complainants.

The Law

48.The defence of honest or fair comment is succinctly stated in Gatley in para 12.1 as follows:-

“It is a defence to an action of libel or slander that the words complained of are honest comment on a matter of public interest. The right to comment honestly on important matters has been considered a ‘bulwark of free speech’, one of the fundamental rights of free speech and writing… and… of vital importance to the rule of law on which we depend for our personal freedom’. …”

49.In para 12.2 the learned author of Gatley further stated there are 5 elements to the defence of fair comments, they are:-

“(1) the comment must be on a matter of public interest;

(2) the comment must be recognisable as comment, as distinct from an imputation of fact;

(3) the comment must be based on facts which are true or protected by privilege;

(4) the comment must be explicitly or implicitly indicate, at least in general terms, the facts on which it is based; and

(5) the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his view.

Where malice can be established by the claimant this will defeat the defence of honest comment….”

Comments or imputation of facts?

50.The learned authors of Gatley, in para 12.8, has the following guidance:-

“The ultimate determinant of whether the words are comments or fact is how they would strike the ordinary, reasonable reader. That said, the question is in the first instance to be answered by the judge. …The first step is to determine the meaning of what the defendant has said in its context. For this purpose, the law adheres to the normal rule that words are treated as having a single meaning. It is possible to distinguish three general situations:-

(1) A statement may be a ‘pure’ statement of evaluative opinion which represents the writer’s view on something which cannot be meaningful verified: for example, ‘I do not think Jones is attractive’.

(2) A statement which is potentially one of fact or one of evaluative opinion according to the context: for example, ‘Jones is a disgrace’.

(3) A statement which is only capable of being regarded as one of facts and is in no sense one of opinion, but which may be an inference drawn by the writer from other facts: for example, ‘Jones took a bribe’.

Honest comment clearly applies to the first situation. It also obviously applies to the second situation if the statement is best read as an evaluative opinion in the context of the publication as a whole (for example), because the writer has just described some controversial act of Jones).

A statement that may be regarded as an assertion of fact may yet be comment for the purposes of the defence is it comprises an inference from other facts stated or referred to. Though ‘comment’ is often equated with ‘opinion’, this is an over-simplification. Comment is ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc’. Hence, the defence can also apply to the third situation above if the statement of fact can be understood as an inference from supporting facts. In this sense, fact and comment are not dichotomous.”

51.Lord Nicholls of Birkenhead NPJ, has the following to say on this issue, in Cheng & Another v Tse Wai Chun (2000) 3 HKCFAR 339, he stated:-

“Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v Smith’s Weekly (1923) 24 SR (NSW) 20, 26: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment’”.

S 27 Defamation Ordinance

52.Section 27 of the Defamation Ordinance states:-

“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

53.The chain of emails started off as assertion of facts but nevertheless could still reasonable be inferred as a deduction, inference, conclusion, criticism, remark or observation. For example in the email dated 1 April 2011, after reiterating Chung’s version of the meeting with P2, the defendant wrote:-

“Was it a witch-hunt on ASA or the department? Digging into specific department will cause white terror amongst the staff. Singling out a union chairman for questioning on heated issues is unwise and unacceptable. The VTC management should focus on solving the problem per se, not hunting the person who pointed out the problem.”

54.However, the later emails deteriorated into direct and sometime vicious attack on the plaintiffs. After reading all of the emails, I found the following squarely within situation (3) and are not an inference from supporting facts:-

(1) In the email dated 3 April 2011, the defendant wrote: “Staff concern witch-hunting at Language Discipline is well founded. Please read the email below. How could an Academic Director say such words to teachers? ... Instead of oppressing staff, she should be much more tolerant and broad-minded (包容) of staff airing their grievances”.

(2) In the email dated 8 April 2011, the defendant wrote: “Comments…8. The discipline management should focus on solving the problem per se, not hunting the persons who pointed out the problem.”

(3) In the second email on 17 April 2011, the defendant wrote: “獨裁主管的特徵是容不下異己，並打壓投訴者。他們行使強權，以逼迫恐嚇方法使下屬懼怕，用孤立分化手段令下屬彼此猜忌。從這次事件可以看到，弱勢員工的投訴一旦被壓倒，獨裁主管立即沾沾自喜，更變本加厲，大肆出言恐嚇。”

(4) In the email dated 19 April 2011, the defendant wrote: “當管理層及人事部疲於奔命，推出[理順方案]安撫短期合約員工，那邊廂語文學領導卻出言恐嚇，企圖令同工噤若寒蟬。”

(5) In the email dated 24 April 2011, the defendant wrote: “明目張膽地向下屬出言恐嚇，已是不能接受的行為。若因投訴而弧立和打壓下屬，這種逼迫行為，更非工會所能容忍。”

(6) In the email dated 3 May 2011, the defendant wrote: ““HRD說不會寬恕非法（unlawful）行為和演說，相信包括LC/TY主管對工會理事的盤問，和學術總監對教員的演說。以上司身份對下屬[出言恐嚇，欺壓逼迫]等言行，…管方應體恤同工苦況，並正視核心問題：上司身份對下屬[出言恐嚇，欺壓逼迫]是否比錄音更不德？...”

(7) In the email dated 17 May 2011, the defendant wrote: “The truth is: … AD(LD) Mrs A Poon spoke to LC/TY staff in a special meeting on 31 March intimidating them …”.

(8) In the email dated 19 May 2011, the defendant wrote: “ASA demands for effective measures to ensure that Ms XY Qiu and Mrs A Poon will stop bullying or prosecuting the LC/TY teachers who have aired grievances to VTC unions and outside parties including PTU.”

55.It is common knowledge that human memory fades as time passes. When receiving a series of correspondence, it is always the latest correspondence that leaves the deepest impact on our minds.

56.Email chains are organised in reverse chronological order, meaning the latest email appears first, with the next latest appearing second and the earlier emails appearing later in the chain. Accordingly, to the recipients of the email chains, the later emails must have left a far deeper impression on their minds than the earlier emails.

57.Finally, even though some of the emails included the word “Comment” or phrased as a question, what followed were in fact not a comment or a question, but an imputation of facts.

58.Because the worst offending emails occurred in the later emails, I find the cumulative effect was such that a hypothetical reasonable reader is left with an impression that these were defamatory imputation of facts and not comments.

A matter of public interest?

59.Mr Brian Wong, counsel for the plaintiffs, argued that the defendant’s emails were not on a matter of public interest and the defence of fair comment should also fail on this ground.

60.Mr Chim, on the other hand, argued the defendant’s email went to the heart of the “right and freedom to form and joint trade unions”.

61.Whilst I agree the “right and freedom to form and joint trade unions” is of public interest, I do not agree the defendant’s email has anything to do with that right.

62.Although the defendant is the president of a trade union and the original complaints were made by union members, but the defamatory imputations in these emails stated the plaintiffs had in fact, inter alia, “witch-hunting”, created “white fear”, bullied, prosecuted, harassed, caused disturbance, intimated and oppressed teachers who expressed grievances.

63.The defendant’s emails never mentioned that the plaintiffs’ actions were directed towards union members, did or would result in restricting teachers’ right to form or joint trade unions. The emails made defamatory imputation of facts against the plaintiffs’ acts against VTC staffs in general not union members, and had nothing to do with these staffs’ freedom to joint or form trade unions.

Conclusion

64.The defence of fair comment therefore fails.

Whether the Words were published on an occasion of qualified privilege

65.The learned authors of Gatley, at para 14.9 stated the essence of the defence of qualified privilege as follows:-

“The occasions [of qualified] privilege can never be catalogued and rendered exact but the tendency of the courts has been to regard most privileged occasions under the common law as very broadly classifiable into two categories: first, where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it; or, secondly, where the maker of the statement is acting in pursuance of an interest of his and the recipient has a such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient.” (Emphasis added)

The defendant’s duty or interest in making the email chains

66.In paragraph 23(4) of his final submission, Mr Chim stated the defendant’s duty as follows: “He encouraged other unions to collaborate with the PTU in both the survey and the Press Conference. He has therefore assumed the responsibility of keeping them informed so as to protect the interest of their members, who might also be the target of ‘witch-hunting’...”

67.In paragraph 24 of his final submission, Mr Chim further stated that the defendant encouraged contract staff to voice out their grievances in public. When the defendant had reasonable grounds to believe that the VTC was trying to identify them, he was under a duty to warn them and provide them with all the information he had. The defendant was thus under a duty to protect the staffs’ anonymity.

The recipients corresponding interest or duties to receive the emails

68.Based on Mr Chim’s final submission, if the recipients of the email chains were either ASA members, other VTC unions and their members, then the defence of qualified privilege may have a chance; however, a close examination of the list of recipients clearly revealed there were many others.

Analysis

69.First, there is a group of recipients on the mailing list known as [email protected] and there are other recipients groups known as [email protected], [email protected], [email protected], [email protected], and [email protected].

70.The fact that an email dated 12 April 2011 send by the defendant invited these groups to join the ASA clearly inferred the recipients under these groups were not ASA members.

71.The recipients also included council members, the executive director, the senior deputy executive director, all three deputy executive directors, senior assistant executive director of headquarters division 1, of VTC; principal of IVE (Tsing Yi); acting head of human resources division; all of which are VTC management staffs and not ASA or other VTC union members.

72.As to other recipients like: 馮偉華(教協會長)；張文光(立法會議員及教協副會長)；梁敏儀(教協)；朱嘉妮(李鳳英議員辦事處)；鄺志堅(前立法會議員，香港工聯會法律顧問)； and 李鳳英(立法會議員,職業訓練局理事會成員), Mr Chim did not mention what corresponding interest or duties they may have in receiving the emails.

73.Furthermore, defendant’s witness, Yeung testified that ASA did not owe any duty to inform disputes to other unions of VTC and other unions of VTC did not have reciprocal duty to inform ASA of their disputes with VTC.

74.Finally, in the email dated 3/5/2011, the defendant wrote: “閣下將不會收到此主旨的電郵，若先前電郵對閣下造成不安或不便，本人謹此致歉。” At the end of the same email, the defendant also stated: “若閣下仍然希望收到此主旨的電郵，請以電郵回覆[email protected]...”.

75.If the defendant had duty or interest to send the email chains to all recipients, there was no need for him to apologise for his prior emails; and there would have been no need for him to promise not to continue to send the emails.

76.Correspondently, if there was an interest or duties on the part of the recipients to receive the emails, there would have been no reason for the recipients to have to ask the defendant to continue sending them the emails.

Conclusion

77.That is the end of the defence of qualified privilege.

Whether the Words were false or the defence of Justification

78.Although it is a defence for a defendant to establish that the imputation in respect of which he is sued is substantially true, the burden of proving so is squarely on the defendant.

The Law

79.The learned authors of Gatley stated in para 11.4 stated:-

“In England and Wales and most other common law jurisdictions, a defamation imputation is presumed to be false. Therefore, the burden is on the defendant to show that the imputation is substantially true.”

80.Before we can determine whether the defendant’s imputation is true, we must first determine what was the main charge, or gist of the defendant’s libel.

81.The learned authors of Gatley , in para 11.7 stated:-

“For the purpose of justification, only the ‘substantial’ truth of the imputation must be proved. The defendant can rely on the defence of justification if he proves that ‘the main charge, or gist, of the libel’ is true. This is an objective requirement; it is the facts as they were, not the facts as they appeared to be to the defendant or some other observer that must be proved….”.

The Analysis ( P1)

82.As stated above, the words used by the defendant were too numerous to list out. As an illustration, I will use the two phases: “witch-hunting” and creating “white terror” repeatedly used by the defendant to describe one or both plaintiffs in the emails.

83.Mr Chim, in his final submission stated these allegations are true and submitted the following as evidence.

84.For P1, Mr Chim submitted that because P1’s explanation that, when she mentioned “aliens” she meant Mr Worthington, was unbelievable; therefore what P1 said during the staff meeting on 31 March 2011 conveyed an implied message to the audience that they should not make complaints to parties outside the VTC and that amounted to “witch-hunting”.

85.Although there is considerable argument on whether P1’s speech contained one single message: not to make complaints outside the VTC; or whether it also contained other messages, giving the defendant all possible benefits, I will assume Mr Chim is correct and P1’s speech had one single message.

86.The issue is therefore: Did that message amounted to “witch-hunting” or creating “white terror”?

87.The answer is clearly not.

88.I have read the transcript and listened to the recording of P1’s 31 March 2011 speech numerous times. I cannot find any part of her speech that can objectively and reasonable be interpreted as: a search for any staffs who lodged complaint, that anyone will be punished for making the complaint or amounted to suppression of dissent and public discussion.

89.P1’s speech however, did contain numerous other messages including: helping each other by developing a good mentoring system (at 23:00); promoting team spirit (at 27:00) resolving disputes by open and frank communications (at 40:00) and encouraging staffs to sound off their problems to P1 anonymously (at 58:00 and 1:00:00).

90.When considered objectively, the main charge or gist of P1’s 31/3/2011 speech was one of encouragement, of rousing an atmosphere of team spirit and resolving disputes with open dialogue, not “witch-hunting” or creating “white terror”.

The Analysis (P2)

91.For P2, Mr Chim submitted Chung’s version of the meeting between him and P2 was more creditable and therefore the defendant’s main charge or gist, that the P2 was “witch-hunting” or creating “white terror” amongst the staffs, is true.

92.Ignoring the dispute on who initiated the meeting on 1 April 2011, which is irrelevant because P2 and Chung were on good terms before this incident and Chung met in P2’s office on many prior occasions, the defendant’s burden is to prove Chung’s recollection of the conversation with P2 was correct and it amounted to “witch-hunting” or creating “white terror”.

93.The first problem encountered by the defendant is there are vital inconsistencies between Chung’s witness statement and his testimony under cross examination.

94.In paragraph 7 of his witness statement, Chung stated P2’s question centred on two matters: (1) Change of 9 teachers on one teaching post at LC/TY; and (2) Sick leave entitlement deprived. Chung also stated the P2 asked him if he had seen a letter of complaint against her.

95.Under cross examination, Chung testified that about (1), P2 asked him in English “What do you know?” Did that mean P2 wanted to know who made the complaint?

96.Paying close attention to the fact that P2’s question was “What” not “Who”, I cannot understand how Chung could have perceived “What do you know?” as “Who made the complaint?” Yet Chung failed to clarify P2’s question and jumped into the conclusion that P2 was asking him about who made the complaints.

97.About (2), under cross examination, Chung testified it was his “impression” P2 wanted to know: what was said; why complaint to the press; and who made the complaint?

98.First, Chung did not say P2 in fact asked him these questions, they were merely Chung’s “impression”.

99.Second, in Chung’s witness statement he never mentioned he had these impressions at the time he signed the witness statement on 14 November 2013.

100.Chung’s failure to include these impressions in his witness statement strongly suggested that these were impressions he did not have at the time of his witness statement, but were created subsequently.

101.Finally, under cross examination, Chung added a third question by P2. He said P2 asked him if a foreign staff made a complaint. This question made such an impression on Chung that he testified it as “out of the blue”.

102.Yet, Chung made no mention of this question in his witness statement. He only stated: “Ms Qiu also asked me if I had seen a letter of complaint against her. (I told her that I hadn’t.)”

103.I am therefore not convinced that Chung’s version of event is more creditable. Between Chung’s version of event and P2’s version of event on 1 April 2011, I prefer P2’s version.

104.Giving the defendant all benefits of doubt, even if I find Chung’s version of event on 1 April 2011 was correct (which of course is not my finding), when considered objectively, I cannot find any part of Chung’s version of P2’s 1 April 2011 conversation can objectively and reasonable be interpreted as: a search for any staffs who lodged complaint, that anyone will be punished for making the complaint or amounted to suppression of dissent and public discussion.

Conclusion

105.The defendant’s defence of justification therefore fails.

Whether the defendant published the Words maliciously

106.It is well known that malice or absence of which, is not a defence, but if a defendant can establish a defence of qualified privilege or fair comment, this defence can be defeated by the plaintiff proving the defendant had malice (improper motive or genuine believe) when he published the email chains.

107.Lord Nicholls of Birkenhead NPJ in page 433 of Cheng (Supra), described the relationship between malice and the defence of qualified privilege as follows: -

“The rationale of the defence of qualified privilege is the law’s recognition that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: see Reynolds v Times Newspapers Ltd [1993] WLR 1010 at p 1017. Traditionally, these occasions have been described in terms of persons having a duty to perform or an interest to protect in providing the information. If, adopting the traditional formulation for convenience, a person’s dominant motive is not to perform this duty or protection this interest, he is outside the ambit of the defence.”

108.Lord Nicholls in page 438 of the same case, described the relationship of malice and the defence of fair comment as follows:-

“To summarise, in my view which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of believe is the touchstone.”

109.As I found the defendant had failed to establish both defences, there is no need for me to consider if the defendant had improper motive or genuine believe.

Whether an injunction should be granted against the defendant

The Law

110.The learned author of Gatley, in para 9.41, stated:-

“At the trial of an action for libel, or slander actionable per se, after the jury have found the verdict for the claimant, or the judge has decided in his favour, the court has jurisdiction to grant an injunction restraining any further or future publication of the words complained of or any similar defamatory matter. The jurisdiction is not confined to cases where the defamatory words affect the trade, business or property of the claimant. The court will grant such an injunction if it is satisfied that the words are injurious to the claimant, and there is reason to apprehend further publication by the defendant….”

Is there a reasonable apprehension that the defendant will continue sending out similar emails

111.There is no dispute that the defendant has, in his solicitor’s letter dated 3 May 2012, in the Statement of Defence and his testimony during this trial, refused to apologise or to cease further publication of the Words.

112.Furthermore, under cross examination, the defendant also admitted he did not accept the written finding of the Administration Committee made under the defendant’s and the plaintiffs’ complaints pursuant to the VTC’s Complaints and Grievances Policy and Procedures and the defendant.

113.Under cross examination, the defendant made it very clear that the Administration Committee’s finding was not the end of this matter and he will bring it up again when he thinks it necessary.

114.As of the date of trial, the defendant has not appealed the Administration Committee’s findings pursuant to the Complaints and Grievances Policy and Procedures. If not by way of appeal, the only logical inference is the defendant intends to continue publication of the Words or similar defamatory words against the plaintiffs.

115.Finally, this is not the first defamation claim against the defendant. Mr Wong submitted that in DCCJ 4900/2011, Judgment was entered against the defendant for publishing defamatory emails.

116.The defendant clearly has a habit of using emails to publish defamatory imputations and there is a danger that he will do so in the future. An injunction should be granted.

General damages

117.In Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd [1996] 4 HKC 519 Mrs Justice Le Pichonsummarised the general principles for awarding damages as follows:-

“The objective is ‘to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed.’ See Duncan & Neill, Defamation, op.cit para 18.04. Where there has been no retraction or apology, an order for damages is the only solatium available to the plaintiff.

In the recent Court of Appeal decision in Cheung Ng Sheong Steven v Eastweek Publisher Ltd [1995] 3 HKC 601, it had to consider the question of damages for libel. It accepted (at p 613D-F) the submission that :

‘… damages for libel must provide for several disparate elements, not only damage to esteem and reputation. They also ‘must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings (Yu Kwong Chu v Consolidated Newspapers Ltd (A258/86, unreported) at p 30’ not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the plaintiff’s ‘pride and confidence’ (McCarey v Associated Newspapers Ltd (No 2) [1964] 3 ALL ER 947 at 958). They must enable the plaintiff to convince a bystander the baselessness of the charge if ‘the libel driven underground, emerges from its lurking place at some future date’ (Cassell & Co v Broome [1972] 1 ALL ER 801).’”

118.Mrs Justice Le Pichon further gave the following guidance on the relevant considerations in assessing damages:-

“In assessing damages in the present case the relevant considerations include the following: the seriousness of the libel having regard to the plaintiff's position and standing; the prominence of the article and the circumstances of its publication; the conduct of thedefendants including conduct subsequent to the plaintiff's complaint; and the absence of any retraction or apology.

…

The injury to the plaintiff was exacerbated by the defendants' refusal to retract or apologize. Further, additional distress would have been caused by the plea of justification and fair comment …

As the circumstances of each libel are likely to differ and the factors to be taken into account depend on the facts of each individual case, it is difficult to extrapolate from previous awards unless there are significant similarities”

Aggravated damages

119.In Lee Ching v Lau May Ming [2007] 3 HKLRD 623 Poon J held:-

“The failure of the defendant to apologize or his persistence with the plea of justification may aggravate the damages : Gatley, para 9.14 at p 245; Sutcliff v Presdram Ltd [1991] 1 QB 153, per Nourse LJ at p 184E-F.

A plea of justification which is not made good at the trial may form the basis of an award of aggravated damages : Mak Shiu Tong v Yue Kwok Ying [2005] 1 HKLRD 33, per Ribeiro PJ at p. 46F-G.”

120.Mr Wong referred to and drew comparison from a number of authorities on quantum including:Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd [1996] 4 HKC 519; Kwan Siu Wa Becky v Marla Susilo DCCJ 5396/2007; Lee Ching v Lau May Ming [2007] 3 HKLRD 623; 周啟邦律師事務所訴仔秀武 HCA 2360/2007;Boulter v Stanley [2006] 4 HKC 563.

121.I do not think much assistance can be derived from such comparison. Each case essentially depends on its own facts. As observed by Le Pichon J in Hung Yuen Chan Robert:-

“As the circumstance of each libel are likely to differ and the factors to be taken into account depend on the facts of each individual case, it is difficult to extrapolate from previous awards unless there are significant similarities…”

122.Here, when assessing general damages, I bear in mind the undisputed fact that the plaintiffs were long-serving, experienced, dedicated and loyal managing staffs of VTC. But the Words seriously attacked and undermined their personality, integrity and loyalty to VTC and its staffs. And the harm was done to them before most if not all staffs of VTC, the emails having been circulated to close to 1000 recipients.

123.Further, given the defendant’s refusal to offer any apology to the plaintiffs when he was asked to do so by the letter before action. And the defendant’s failure to make good a plead of justification are, in the circumstances of the present case, also relevant factors that support an award of aggravated damages.

124.Having carefully considered all the circumstances, I shall award as general damages HK$200,000 and aggravated damages HK$200,000 to each of the plaintiffs.

Orders

125.I will enter judgment against the defendant:-

(1) for the 1^st plaintiff in the sum of HK$400,000 with interest at the judgment rate from the date of writ until payment;

(2) for the 2^nd plaintiff in the sum of HK$400,000 with interest at the judgment rate from the date of writ until payment; and

(3) for both plaintiffs an injunction restraining the defendant whether by himself, his servants or agents or otherwise, howsoever, from further publishing or causing to be published the Words or similar words.

126.Finally, costs should follow the event. I will make an order nisi that the defendantdo pay the plaintiffs the costs of the action, including any costs reserved, to be taxed if not agreed.

	( Anthony Chow )
	Deputy District Judge

Mr Wong Chao Wai Brian, instructed by Kwok, Ng & Chan, for the 1^st and 2^nd plaintiff.

Mr Carter Chim, instructed by Ho Tse Wai, Philip Li & Partners, for the defendant

Schedule A

Email Chain 1

> 寄件者: ASA Secretariat

> 寄件日期: 2011年5月22日上午 12:46

> 收件者: CHEUNG FOOK KWONG; 李鳳英; 朱嘉妮

> 副本: ASA-Members; ASA-Recipients; ASA-EXCO; VLU-EXCO; NRPSA-EXCO;

> LRCSA-EXCO; MSU-EXCO; SCSA-EXCO; ITOGSA-EXCO; 梁敏儀; 馮偉華;

> 張文光

> 主旨: FW: No witch-hunting please...

> 復光、鳳英姐：

> 多謝兩位仗義幫助有關同工，在局方行政委員會19/5會

> 議中為同工說項。

> 若方便的話，請告訴我們：

> 1. 語文科學術總監有沒有繼續抵賴，否認曾向下屬

> 出言不遜、魯言莽語，並誣蔑工會造假？

> 2. 局方行政委員會對學術總監那些不遜言語，裁定

> 是：恰當、不智、不道德、抑或不合法？

> 3. 會議有沒有審理LC/TY教師被主管欺壓的投訴，包

> 括有人施壓竄改PI-11分數之事？

> 4. 曾以「棄車保帥」施於人者，會否因果遁環，被

> 人「棄車保帥」？

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: 2011年5月19日 8:36

> 收件者: LO KIN KI EDMOND; Ho Siu Wah Annie; CHAN SAU CHING

> SUSANNA; Dr Lawrence W. Chan; LEUNG Yam-shing; Au Kam Hung, Gary; Dr

> Michael K K FUNG; Aby LEUNG; CHAN MAN WAH; JOSALIN TSE

> 副本: [email protected]; [email protected]; [email protected]

> u.hk; [email protected]; [email protected]; [email protected]

> ; [email protected]; [email protected]; [email protected];

> CHEUNG FOOK KWONG; 朱嘉妮; 李鳳英; 梁敏儀; 馮偉華; 張

> 文光

> 主旨: FW: No witch-hunting please...

> Dear Dr Lo and Josalin,

> The crux of this case is how witch-hunting can be prevented. It's

> not whether witch-hunting has occurred, which in our minds is a

> truth beyond any doubt and debate.

> ASA demands for effective measures to ensure that Ms XY Qiu and Mrs

> A Poon will stop bullying or persecuting the LC/TY teachers who have

> aired grievances to VTC unions and outside parties including PTU.

> We will not stop at anything less.

> Albert Li

> ASA President

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: 2011年5月17日 21:36

> 收件者: [email protected]; [email protected]

> 副本: [email protected]; [email protected]; [email protected]; [email protected]

> u.hk; [email protected]; [email protected]; [email protected]

> ; CHEUNG FOOK KWONG; 朱嘉妮; 李鳳英; 梁敏儀; 馮偉華; 張

> 文光

> 主旨: FW: No witch-hunting please...

> If you would like to stop receiving from this thread of emails,

> please indicate so in an email to [email protected]<mailto:[email protected]

> >. Thank you.

> Dear all,

> The question is: Has there been witch-hunting on those LC/TY

> teachers who dare to air grievances to outside people?

> The truth is:

> 1. HoD(LC)/TY Ms XY Qiu pressed ASA Chairman Mr Jordan Chung on

> 1 April for information relating to participation of LC/TY staff at

> the PTU press conference of 1 March

> 2. AD(LD) Mrs A Poon spoke to LC/TY staff in a special meeting

> on 31 March intimidating them "not to expose our weaknesses to

> alien", "don't wash dirty linen in the public", etc

> 3. Those LC/TY staff who had complained to Hon Mr Cheung Man-

> kwong, and/or had spoken up at the PTU press conference, felt

> intimidated and witch-hunted by Mrs Poon and Ms Qiu

> 4. ASA has been acting in good faith airing staff complaints,

> and has not fabricated or distorted any evidence (as accused by Mrs

> Poon and Ms Qiu)

> Who is afraid of the truth?

> HRD's investigation report will be decided by the VTC Administration

> Committee on Thursday 19 May.

> Will justice prevail this time?

> Albert Li

> ASA President

> ________________________________

> 寄件者: Edwin KW Cheung

> 寄件日期: Tuesday, 17 May, 2011 17:34

> 收件者: 李鳳英; 朱嘉妮

> 副本: VLU-EXCO; ASA Secretariat; Edwin KW Cheung

> 主旨: FW: No witch-hunting please...

> Dear Hon Ms Lee,

> I can confirm a group of 8 LC/TY past and current collegians had

> contacted me to file a complaint against Ms Xiao Xiu Yan/PL/LC/TY

> about her poor management. The complainants had subsequently

> contacted and made the complaint to Mr Cheung Man Kwong and Dr Fung

> Wai Wah of Professional Teachers' Union. Afterwards, these

> colleagues informed me that they felt the witch-hunt pressure from

> two LC management staff:

> 1. Ms Xiao Xiu Yan questioning of ASA Chairman Mr Jordan Chung

> 2. Mrs A. Poon (Academic Director of LC/VTC)'s speech about strong

> detergents

> Should you have further questions, please feel free to contact me 9656 9784

> .

> Regards,

> Edwin Cheung

> VTC Lecturers' Union Chairman

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: Sunday, 15 May, 2011 13:29

> 收件者: [email protected]; [email protected]

> 副本: CHEUNG FOOK KWONG; [email protected]; [email protected]; [email protected]

> u.hk; [email protected]; [email protected]; [email protected]

> 主旨: FW: No witch-hunting please...

> If you would like to stop receiving from this thread of emails,

> please indicate so in an email to [email protected]<mailto:[email protected]

> >. Thank you.

> Dear all,

> In response to the accusations that the staff complaints had been

> fabricated or distorted, we sent the original complaint emails/

> letters to LegCo Councilor Ms Lee Fung-yin for the record. Some of

> the complainant staff met Mr Cheung Fook-kwong on Friday 6 May and

> would meet Hon Ms Lee on Wednesday, which shows that the

> complainants are not fictitious. Shame on the accusations!

> Albert Li

> ASA President

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: Sunday, 15 May, 2011 11:42

> 收件者: 李鳳英; 朱嘉妮

> 副本: LEE KOON HUNG KEN; CHUNG Chiu Tung; CHOW TSAN SANG

> 主旨: FW: No witch-hunting please...

> Dear Hon Ms Lee,

> Attached please find five emails/letters some VTC language teachers

> have sent to us since early April, describing the oppressions the

> teachers had suffered because they had expressed grievances against

> the management.

> We give you the original complaint documents because a management

> staff accused that we had fabricated or distorted the evidence.

> Please do not give the documents to the VTC management, lest

> identities of the complainant staff will be exposed.

> Please uphold justice when you adjudicate in the VTC Administration

> Committee meeting next week.

> Albert Li

> ASA President

> ________________________________

> From: ASA Secretariat

> Sent: Thursday, May 12, 2011 4:28 PM

> To: LO KIN KI EDMOND; Ho Siu Wah Annie; CHAN SAU CHING SUSANNA; Dr

> Lawrence W. Chan; LEUNG Yam-shing; Au Kam Hung, Gary; Dr Michael K K

> FUNG; Aby LEUNG; CHAN MAN WAH; JOSALIN TSE

> Cc: LEE KOON HUNG KEN; '[email protected]'; '[email protected]'; '[email protected]

> '; '[email protected]'; '[email protected]'

> Subject: FW: No witch-hunting please...

> Importance: High

> Dear Dr Lo and Josalin,

> I have written a response to the allegations by Mrs A. Poon made

> against me in her email of 29 April to HRD.

> Please include the first attachment in our submission to the Council

> Administration Committee.

> May I know when the Administration Committee will meet to discuss

> this issue?

> Albert Li

> ASA President

> ________________________________

> 寄件者: Albert Li

> 寄件日期: 2011年5月6日 11:56

> 收件者: LO KIN KI EDMOND; Ho Siu Wah Annie; CHAN SAU CHING

> SUSANNA; Dr Lawrence W. Chan; LEUNG Yam-shing; Dr Michael K K FUNG;

> Aby LEUNG; CHAN MAN WAH; JOSALIN TSE

> 副本: CHUNG Chiu Tung; ASA-EXCO; VLU-EXCO; NRPSA-EXCO; MSU-EXCO;

> ITOGSA-EXCO

> 主旨: FW: Complaints against ASA Member

> Dear Dr Lo and Josalin,

> Attached please find a statement made by ASA Chairman Mr Jordan

> Chung, in response to the allegation of Ms Qiu Xiao Yan that Mr

> Chung lied about the incident of 1 April 2011. My own rebuttal

> against Ms Qiu's complaint has been submitted to you in two emails

> dated 3 May 2011.

> Please include Mr Chung's statement into our submission to the

> Council Administration Committee.

> Thanks and regards,

> Albert Li

> ASA President

> ________________________________

> From: JOSALIN TSE

> Sent: Wednesday, May 04, 2011 5:42 PM

> To: Albert Li

> Subject: RE: Complaints against ASA Member

> Importance: High

> To: Mr Albert Li, President of ASA

> Dear Mr Li,

> Further to my email of 30 April 2011, the HRD has received another

> complaint against you from Ms Qiu Xiao Yan, PL(LC)/IVE(TY). Please

> refer to the relevant document attached and let me have by 9 May

> 2011 your responses to the complaint, if any, so that they may be

> included in the report to the Administration Committee.

> Josalin Tse

> Ag Head/HRD

> ________________________________

> From: JOSALIN TSE

> Sent: Saturday, April 30, 2011 4:26 PM

> To: Albert Li

> Subject: Complaints against ASA Member

> To: Mr Albert Li, President of ASA

> Dear Mr Li,

> The HRD has received a number of complaints against your recent

> actions in connection with LC/TY. Relevant documents are attached.

> You are invited to let me have by 9 May 2011 your responses to these

> complaints, if any, so that they may be included in the report to

> the Administration Committee.

> Josalin Tse

> Ag Head/HRD

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: 2011年5月6日 6:30

> 收件者: 馮偉華; 張文光; 梁敏儀

> 副本: 朱嘉妮; 鄺志堅; CHEUNG FOOK KWONG; [email protected]; ASA-Recip

> [email protected]; [email protected]; [email protected]; [email protected]

> ; [email protected]; [email protected]; [email protected]

> 主旨: FW: No witch-hunting please...

> 馮會長、張議員、梁女士：

> 職訓局教學人員協會(ASA)在4月初收到會員投訴：

> 1.

> 語文科部門主管向工會理事關門查問，查問事項涉及

> 該部門教員在教協會1/3記招中向報界申訴的說話內

> 容，包括"一個職位轉九個老師"、"短約員工的病假安

> 排"等話題。

> 2.

> 語文科學術總監召集特別員工會議，向該部門二十多

> 名教員訓話，內容令大部份同工感到不安、受擾；同

> 工當中有數位曾參與教協會記招，或曾經向張文光議

> 員投訴該部門管理層，這些同工更感到受恐嚇、受侮

> 辱。

> ASA立即向管方報案。一個月以來，同工提供更多投訴

> 事項和証據，ASA如實轉述管方。被投訴的學術總監和

> 部門主管，及另外三位同事，向管方投訴了本人。管

> 方在4月尾通知我們，人力資源科(HRD)的調查報告，將

> 會呈交局方行政委員會(Council Administration Committee)審

> 批。

> 因為事件涉及閣下和教協會，我們有責任通知閣下，

> 敬請知悉和關注。

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: Thursday, 5 May, 2011 10:56

> 收件者: [email protected]

> 副本: [email protected]; [email protected]; VLU-

> [email protected]; [email protected]; [email protected]; [email protected]

> ; [email protected]

> 主旨: FW: No witch-hunting please...

> 各位LC/TY同工：

> 復活節假期至今，ASA收到5份電郵訴說因申訴而被孤立

> 欺壓，或被強行調職，或對職訓局失望遂拂袖而去，

> 等等。我們會將投訴信交給李鳳英議員辨事處，確認

> 正本及存檔副本，及邀請投訴人直接向鳳英姐申訴，

> 然後將投訴內容如實抄錄(保護匿名)，呈交局方行政

> 委員會。

> 若您曾經因申訴不滿而受到管理層打壓，請將情况寫

> 出來交給ASA。職訓局政策是接受匿名投訴，工會定必

> 保護投訴人。只要真有其事，請您勇敢地站出來。沉

> 默不能改變事情，容忍只會助長情況惡化。

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> From: ASA Secretariat

> Sent: Wednesday, May 04, 2011 6:23 PM

> To: LO KIN KI EDMOND; Ho Siu Wah Annie; CHAN SAU CHING SUSANNA; Dr

> Lawrence W. Chan; LEUNG Yam-shing; Dr Michael K K FUNG; Aby LEUNG;

> CHAN MAN WAH; JOSALIN TSE

> Cc: [email protected]; [email protected]; [email protected]

> ; [email protected]; [email protected]; [email protected]; [email protected]

> ; [email protected]

> Subject: FW: No witch-hunting please...

> 勞博士、謝女士、各位高層：

> 多謝HRD謝女士今日(4/5)電郵，告知LC/TY部門主管投訴本

> 人。ASA及本人的回應，寫在昨日(3/5)11:57AM及12:15PM發出

> 之電郵當中，敬請細閱。

> 請將我們的回應呈交局方行政委員會審閱。謝謝。

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> From: ASA Secretariat

> Sent: Wednesday, May 04, 2011 1:31 PM

> To: 鄺志堅

> Subject: FW: No witch-hunting please...

> 鄺大狀：

> 有個案涉及私穩法如下：一位領導500多名教員的學術

> 總監，召集特別員工會議給二十多名教員公開訓話，

> 沒有事先通知不得錄音，當中一名教員私下把訓話錄

> 音，並將錄音一部份用來做投訴總監的証據。若學術

> 總監引用《個人資料(私隱)條例》控告該名教員，立

> 案機會如何？該名教員若以保護自身權益為申辯理

> 由，是否可行？有何先例可以參考？

> 可否咨詢閣下法律意見，見面或用電話談談？

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: 2011年5月3日 23:36

> 收件者: [email protected]; [email protected]

> 副本: 朱嘉妮; CHEUNG FOOK KWONG; [email protected]; VLU-

> [email protected]; [email protected]; [email protected]; [email protected]

> ; [email protected]

> 主旨: FW: No witch-hunting please...

> 若閣下不想再收到此主旨的電郵，請以電郵回覆ASA-

> [email protected]<mailto:[email protected]>。謝謝。

> 各位ASA會員、有關教學同工：

> ASA和苦主約見李鳳英女士和張復光先生，因為兩位是

> 局方行政委員會成員。鳳英姐是勞工界立法會議員，

> 復光是職訓局工會聯會主席。

> 苦主直接向鳳英姐和復光申訴，為了爭取兩位的支

> 持，在行政委員會替員工說項，亦可証明投訴信和投

> 訴人，不是子虛烏有。

> 此外，我們會咨詢ASA義務法律顧問鄺志堅律師，他是

> 勞工法大狀，工聯會領導，也是前任立法會議員。

> 不獲最起碼的真相和公義，我們不會罷休。

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: 2011年5月3日 12:30

> 收件者: LO KIN KI EDMOND; Ho Siu Wah Annie; CHAN SAU CHING

> SUSANNA; Dr Lawrence W. Chan; LEUNG Yam-shing; Dr Michael K K FUNG;

> Aby LEUNG; CHAN MAN WAH; JOSALIN TSE

> 副本: [email protected]; [email protected]; [email protected]

> u.hk; [email protected]; [email protected]; [email protected]

> k; [email protected]; [email protected]

> 主旨: FW: No witch-hunting please...

> 勞博士、謝女士、各位高層：

> 多謝HRD謝女士(30/4)的電郵，提醒ASA不要過激，我們接

> 受並感謝提醒。

> 就HRD在電郵中提到的四點原則和立場，以及另一電郵

> 通知有四位同事(包括語文科學術總監)投訴本人，ASA

> 及本人的回應，寫在今日11:57AM及12:15PM發出之電郵當

> 中，敬請細閱。

> 請將我們的回應呈交局方行政委員會審閱。謝謝。

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> From: ASA Secretariat

> Sent: Tuesday, May 03, 2011 12:15 PM

> To: '[email protected]'; '[email protected]'; '[email protected]

> '

> Cc: '[email protected]'; '[email protected]'; '[email protected]

> '; '[email protected]'; '[email protected]'; '[email protected]

> '

> Subject: FW: No witch-hunting please...

> Importance: High

> 各位Term及NRP同工、CCC工會理事：

> 閣下將不會收到此主旨的電郵，若先前電郵對閣下造

> 成不安或不便，本人謹此致歉。

> 就ASA投訴有上司對下屬「出言恐嚇、欺壓逼迫」一

> 案，管方决定將HRD調查報告，呈交局方行政委員會

> (Council Administration Committee)審批，此乃公平公開的做

> 法，我們非常贊成。

> 若閣下仍然希望收到此主旨的電郵，請以電郵回覆ASA-

> [email protected]<mailto:[email protected]>。

> 順祝工作愉快！

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> From: ASA Secretariat

> Sent: Tuesday, May 03, 2011 11:57 AM

> To: '[email protected]'; '[email protected]'

> Cc: '[email protected]'; '[email protected]'; '[email protected]

> '; '[email protected]'; '[email protected]'; '[email protected]

> '

> Subject: FW: No witch-hunting please...

> Importance: High

> 若閣下不想再收到此主旨的電郵，請以電郵回覆ASA-

> [email protected]<mailto:[email protected]>。謝謝。

> 各位ASA會員、有關教學同工：

> HRD主管謝女士在30/4發放電郵，指出管方四項基本原則

> 和立場，收件者不具名，但文中提到某工會相信是指

> ASA。

> 電郵言辭中肯禮貌，旨在提醒工會不要過激，ASA接受

> 並感謝提醒。

> 我們的具體看法如下：

> (1)

> HRD說不會寬恕非法(unlawful)行為和演說，相信包括LC/TY

> 主管對工會理事的盤問，和學術總監對教員的演說。

> 以上司身份對下屬「出言恐嚇、欺壓逼迫」等言行，

> 若其目的是阻礙僱員參與工會活動或進行事後打壓，

> 很可能抵觸勞工法。但是，管方審視此案的準則，不

> 應只看合法性，亦需看是否合情合理。只要被投訴者

> 的言行是不合理，管方便應判投訴成立。

> (2)

> HRD說不應違反私隱法(privacy law)，相信是指個別同工把

> 學術總監在會議中向二十多名教員發表的演說，未經

> 同意而錄音。這演說是集會中給很多人的公開訓話，

> 不是單對單的私人傾談，錄音是否抵觸《個人資料(私

> 隱)條例》，ASA會諮詢法律意見，能否立案有待考究。

> 無論如何，我們認為這是受逼迫同工的無奈之舉，源

> 於對管理層的失望、不信任和恐懼。

> 管方應體恤同工苦况，並正視核心問題：以上司身份

> 對下屬「出言恐嚇、欺壓逼迫」是否比錄音更不道

> 德？此外，在2010-11學年的PI-11問卷調查中，近三成(六

> 位)教員給部門管理非常低的分數，令平均數跌至5.51

> 分，當中四位被施壓要求更改分數，此事校方己查証

> 屬實。事件多少反映部門怎樣處理員工不滿，亦解釋

> 為何員工不信任部門主管。

> 萬一管方「律民以嚴、待已以寬」，甚或認同事主追

> 打員工錄音之事，這樣做的話，實在難以服眾，ASA必

> 會極力反對。

> (3)

> ASA用電郵發放消息，目的絕非煩擾或冒犯他人(harass

> or offend others)。學術總監的冒犯他人說話，轉載自同

> 工投訴來郵，或抄錄自同工的錄音碟，全是如實紀

> 錄，絕非無中生有。ASA轉載員工的投訴，沒有對被投

> 訴者作誣告陷害、蓄意誹謗，也沒有對任何人作言語

> 暴力、人身攻擊。對投訴的論述，出自集體良心，乃

> 工會肺腑之言。把事件公開，是要追求真相公義。沒

> 有將個案轉介往其他機構或人士，只因相信首長級高

> 層，以及局方行政委員會(Council Administration Committee)，

> 應會主持公道。

> 若說ASA煩擾或冒犯了被投訴者，我們坦然接受，因為

> 我們沒有惡意針對任何人，為同工申訴而得罪權貴，

> 我們問心無愧。弱勢社群面對強權欺壓，公開事件往

> 往是唯一的有效方法。若管方IT政策禁止工會使用電

> 郵發放消息，工會必定抗爭到底。

> (4)

> 管方對這項投訴的判决是否公正無私(objective and

> impartial)，會否因被投訴者位高權重而官官相衛，員工

> 拭目以待。因涉及教協會記招和立法會議員，事件嚴

> 重、情况特殊。管方將會把HRD的調查報告，呈交行政

> 委員會决定。讓多位獨立社會知名人士審核報告，是

> 公平公開的做法，ASA多謝管方接納我們(24/4)的建議。

> 看到外界報導職訓局有不良制度和文化，令教職員長

> 期受壓被迫忍氣吞聲，ASA是恨鐵不成鋼。我們認為，

> 公正無私的裁决、公平公開的過程，才是守護職訓局

> 名聲的最好方法。

> ASA擇善固執，一貫忠言逆耳，繼續向管方反映同工心

> 聲。在這投訴事件上，我們保持原則、堅守立場：追

> 求最起碼的真相和公義，從不要求懲處任何人，但一

> 定要保護同工，不再受到欺壓逼迫、秋後算賬。

> 懇請管方正視問題，還員工一個公道，以守護職訓局

> 名聲。管方中正無私，才能一言而萬民齊。局內上下

> 一心，才能面對未來挑戰。

> 公道自在人心！

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> 寄件者: JOSALIN TSE

> 寄件日期: Saturday, 30 April, 2011 9:53

> 收件者: Undisclosed Recipients

> 主旨: Complaints concerning LC/TY

> Dear colleagues,

> I refer to the series of emails in relation to the recent complaints

> concerning the Language Centre of IVE(Tsing Yi) (“LC/TY”)

> referred by a staff union complaining against an Academic Director a

> nd the management of LC/TY, as well as a number of complaints from i

> ndividual staff members against a member of that staff union.

> These complaints are being investigated. HRD has paid a number of

> visits to the Tsing Yi Campus and interviewed 31 LC/TY teaching

> staff individually to gather information on the complaints.

> Arrangements will be made for the report on these complaints be

> presented to the Administration Committee for a decision. Parties

> concerned will be notified of Administration Committee’s decision in

> due course.

> We have also received comments from colleagues who feel disturbed by

> the chain of e-mails sent to them on the matter. We must take the

> opportunity to state some fundamental principles and the management’

> s position –

> (1) VTC does not condone any unlawful acts and speeches.

> (2) VTC fully respects freedom of speech, but this has to be

> exercised in an ethical and law-abiding manner. In no circumstances

> should the privacy law be breached.

> (3) VTC has a clear policy on the use of its IT resources.

> Staff should comply with the guidelines under this policy among

> which VTC emails accounts cannot be used for broadcasting messages

> which are likely to harass or offend others (paragraph 8d of “Undert

> aking & Acceptable Use Policy of VTC IT Resources”.).

> (4) VTC has established system and procedures for dealing with

> complaints, which are investigated and ruled on objectively and

> impartially, irrespective of the background and status of the

> complainant and the complainee.

> Josalin Tse

> Acting Head of Human Resources Division

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: Wednesday, 27 April, 2011 20:35

> 收件者: LO KIN KI EDMOND; Ho Siu Wah Annie; CHAN SAU CHING

> SUSANNA; Dr Lawrence W. Chan; LEUNG Yam-shing; Dr Michael K K FUNG;

> Aby LEUNG; CHAN MAN WAH; JOSALIN TSE

> 副本: CHIU YEE MAN; LEE CHI MING; CHEUNG HIU SZE; CHUNG Chiu Tung;

> FAN PAK SING ANDREW; IP KWOK KIT; Law Yat Sang; LEE Sau-fong Anna [S

> BI]; LEE Wai-ching Crystal [SBI]; LEUNG HON YAN; WONG wai pik; WONG

> Wing Man; WORTHINGTON KEVIN JOHN; YEE Kar Wai, Angela; YEUNG SIU MAY

> ; YEUNG WAI KEUNG FRANKIE; YIU ming kei; CHAN CHUN CHUEN; Mart CHENG

> ; CHOI HIU SHU; CHOW SHUK MEI; KWOK NGAN YU; LAU MUNG HA; LI PENG; L

> I PUI YEE; LI WEN; NG flora; SUN NGAI; TSANG YU TING, RUBY; WONG YIN

> TING; YI YING YING; YIP Wing Seen, Monica; Leonard YIP; ZHANG MIAO; [email protected]

> ; [email protected]; [email protected]; [email protected]; [email protected]

> ; [email protected]; HUI CHI KWONG JACKSON; LEE KOON HUNG KEN;

> Ir. CHAN Chi Ming (CN/MH); CHENG TAI MAN; CHEUNG FOOK KWONG; SUNG PO

> KWONG SUNNY; SZE WING CHEONG; SHEK KA FAI, Jeff; CHEUNG Wai-kin Ken

> t; Joan CHUNG; Leung Wai Shing George; CHEUNG CHUN MING; LAM LUNG CH

> UEN FRANCIS; CHAN KA LIN KAREN; Edwin KW Cheung; LEUNG KING YUEN; LA

> M KWOK KEI,George

> 主旨: FW: No witch-hunting please...

> 謝女士：

> 多謝閣下今午來電，建議工會將意見經HRD轉告首長級

> 高層。請恕工會難以從命。

> 工會尊重HRD的地位和角色，亦相信閣下會如實傳訊予

> 高層，只是事件嚴重、情况特殊，工會才僭越向首長

> 級高層直接表達意見。

> 若DED(A)何小姐未克抽空接見工會代表，我們願意等候

> SDED勞博士放假回來後再商議會談之事。

> ASA會長

> 李壽生(Albert Li)

> ________________________________

> 寄件者: ASA Secretariat

> 寄件日期: 2011年4月26日 21:57