Tsui Sang Hung Sammy v. Lui Hok Nang

HCMP 863/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 863 OF 2015

(ON AN INTENDED APPEAL FROM DCCJ NO. 1985 OF 2012)

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J U D G M E N T

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

1.On 23 January 2015, Deputy District Judge A Kot dismissed the claim of the plaintiff in DCCJ 1985 of 2012 for defamation against the defendant. The plaintiff applied for leave to appeal, which was refused by the judge on 31 March 2015. The plaintiff now renews his application for leave to appeal before us.

2.The claims for the plaintiff are in respect of 2 statements (which the judge referred to as the 1^st Words and the 2^nd Words).  The meanings of those statements were pleaded by the Plaintiff in his Amended Statement of Claim paragraphs 6 to 9:

“6. The 1^st Words (a), 1^st Words (b) or further or alternatively the 2^nd Words referred and were understood to refer to the Plaintiff. In their natural and ordinary meaning, the 1^st Words (a) or further or alternatively the 2^nd Words purported to suggest and/or mean that the Plaintiff had some wrongful associations with those Pakistan residents with a view to gaining victory in the election of The Kwai Tsing Provisional District Board in 2011. The 1^st Words (b) purported to suggest and/or mean that the number of copies of the said publicity leaflet was under-estimated by the Plaintiff and therefore such acts and conduct of the Plaintiff amounted to bribery in election. As a result of the 1^st Words (a), 1^st Words (b) and/or the 2^nd Words made by the Defendant and the same were published by Oriental Press Group Ltd and Wen Wei Po on 3^rd December 2011 and 10^th December 2011 respectively, some of the residents had queried the Plaintiff about truthfulness of the 1^st Words (a), 1^st Words (b) and/or the 2^nd Words and the news. The Plaintiff has been a member of The Kwai Tsing Provisional District Board since 1994 serving the community extensively and diligently. The 1^st Words (a), 1^st Words (b) and/or the 2^nd words contain the said defamatory, ill-founded and groundless allegations which in the Plaintiff’s view are only intended to be a scurrilous and totally baseless attack on the Plaintiff.

7. Further or in the alternative, in their natural and ordinary meaning, the 1^st Words (a) purported to suggest and/or mean and/or accuse that the Plaintiff is guilty of and/or has committed the offences of vote-rigging and bribery in election.

8. Further or in the alternative, in their natural and ordinary meeting, the 1^st Words(b) purported to suggest and/or mean and/or accuse that the Plaintiff is guilty of and/or has committed the offence of bribery in election.

9. Further or in the alternative, in their natural and ordinary meaning, the 2^nd Words purported to suggest and/or mean and/or accuse that the Plaintiff is guilty of and/or has committed the offence of vote-rigging in election.”

3.These meanings were disputed by the defendant, see paragraphs 7 to 10 of the Defence. 

4.In the judgment, the judge considered the meanings of the statements at paragraphs 44 to 51, including the meanings advanced by counsel for the Plaintiff at the trial (which was quite different from the meanings pleaded in the Statement of Claim) as set out by the judge at paragraph 44:

“ (a) the 1^st Words (a) and the 1^st Words (b) seem to suggest that there were sufficient and solid grounds, pointing to P’s guilt of having committed vote-rigging and bribery … and did bear a meaning of more than ‘mere suspicion’.(§21 of Closing Submission); and

(b) it is normal for an ordinary reader to infer from the 2^nd Words that there are already sufficient bases to charge P of vote-rigging … accord a meaning of more than ‘mere suspicion’” (§23 of Closing Submission).”

5.The judge rejected the pleaded meanings at paragraph 46 of the judgment:

“ Having considered the argument, I agree with the defendant that the Words complained of are not capable of imputing the meaning that the plaintiff is guilty or had committed the criminal offence of bribery and/or vote-rigging. The Words, take it to the highest, can only give an ordinary reader the impression of mere suspicion.”

6.The judge concluded at paragraph 51:

“ I do not consider the Words bear any of the defamatory meaning suggested by the plaintiff as particularised at §44 above.   The expression of query or doubt as to whether the plaintiff had committed the offence is different from the scenario in the case of Law Kin Man Freeman v Chan Kin Hung (unrep., DCCJ 4563/2007, 3 December 2007) in which the words involved is “the defendant had reason to believe” that the plaintiff in the case had participated in certain criminal conduct.   To say that “he believed someone to have committed a crime” is a positive assertion and I agree that there is no material distinction between this and saying the same person committed a crime. Whilst “believed to have committed a crime” do suggest guilt, a “query” or a “doubt” does not carry the same implication.”

7.In the proposed appeal, the Plaintiff seeks to contend that the judge erred in (1) failing to decide whether words that connote a meaning of suspicion, with or without reasonable grounds, can be of a defamatory nature; (2) failing to decide that the statements were of a defamatory nature after deciding their meaning; and (3) failing to have regard to several relevant matters (identified in Ground 3 of the draft Notice of Appeal).

8.The first 2 grounds can be dealt with together. As set out above, the judge decided that the meaning of the statements was neither those as pleaded in the Statement of Claim nor the ones advocated by counsel for the Plaintiff.  As the judge rejected the meaning advocated by counsel for the Plaintiff, she did not find the statements to carry the meaning that the Defendant had reasonable grounds to suspect that the Plaintiff was guilty of the offence of vote-rigging or corrupt election practice.  This is reinforced by the contrast drawn by the judge with the scenario in Law Kin Man Freeman v Chan Kin Hung, supra. 

9.Mr Tang referred us to the English case of Chase v News Group Newspapers Ltd [2003] EMLR 218.  In that case, Brooke LJ observed at paragraph 45 that there could be different shades of meanings in respect of a statement on implicating someone:

“ The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.”

10.Mr Tang submitted that the judge made a finding that the statements in the present case carried the “level 2” meaning in Chase, viz that the defendant had reasonable grounds for his suspicion.  With respect, this is a misreading of the judge’s finding.  Whilst the judge did refer to the possibility of level 2 meaning at paragraph 47 of the judgment, in the end after referring to other parts of the statements and considering them in context, the judge found at paragraph 51 that the statements did not go that far.  This is quite clear if one read the whole of the judgment, in particular from paragraphs 47 to 51 together.  If one were to apply the analysis of Brooke LJ, the judge’s finding was that the statements in question only carried a level 3 Chase meaning (adopting the shorthand of Mr Tang).

11.As submitted by Mr Chu, in a defamation case, the actual meaning of a statement is a question of fact.  We have read the statements in their context.  The statements are capable of having the meaning as ascribed by the judge and we see no ground for us to disturb her finding. 

12.Neither can we find any reason to interfere with the judge’s conclusion that the statements were not defamatory based on her finding on the meaning of the same.  It has never been the Plaintiff’s case that the matters highlighted in those statements did not even warrant a suggestion that there was something to be investigated.

13.Having reached this conclusion, ground 3 could not avail the Plaintiff. 

14.We do not find the intended appeal to be reasonably arguable.  Neither do we see any other reasons in the interest of justice for leave to be granted.

15.We dismiss the application by the Plaintiff.  We also order the Plaintiff to pay the costs of the Defendant in this application.  Having considered the statement of costs of the Defendant and heard the submissions of the Plaintiff, we summarily assessed the costs at $59,150.

Mr Kelvin Tang, instructed by W K To & Co, for the plaintiff

Mr Chu Wai Kei, instructed by Jimmie K S Wong & Partners, for the defendant