NGAI WAI YEUNG v. LAU YUN FUNG BERTHA

DCCJ 336/2023

[2024] HKDC 1811

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 336 OF 2023

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DECISION

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INTRODUCTION

1.  This is the hearing of the Defendant’s application for, inter alia, striking out the Plaintiff’s claim and pleadings for: (a) disclosing no reasonable causes of action; (b) being scandalous, frivolous and vexatious and/or (c) being otherwise an abuse of process of the Court pursuant to O 18 r 19(1) of the Rules of the District Court (Cap 336H) (“RDC”) and the inherent jurisdiction of the Court.

BACKGROUND

2.  The Plaintiff’s action is one of defamation and malicious falsehood. For obvious reason, I shall only set out those facts as are strictly necessary for the purpose of disposing the application.

3.  At the material times, the parties were both employed by the same company (“N”), with the Plaintiff working under the supervision of the Defendant in a project (“Project”).

4.  The Plaintiff’s claim arose out of two allegedly defamatory statements contained in two emails both sent by the Defendant on 1 August 2022:-

(1)  The first email sent to the Plaintiff (copied to the Plaintiff’s supervisor (“M”)) at 13:40 hour (“1^st Email”), in which the Defendant stated, inter alia:-

“As mentioned in last Thursday afternoon, you cannot meet the schedule of UAT to fix the assigned function (as attached) and PGT Form by Aug 3, so we have decided to swap you to do another assignment and let others to pick up the programming” [1]

(2)  The second email sent to the Plaintiff (copied to M and two other members of N) at 23:09 hour (“2^nd Email”), in which the Defendant stated:-

“I do not agree on what you have said that you complete all tasks. For example, email dated on Tuesday, 26 July 2022 1:02 pm. The task was not completed … Since the schedule could not be met, this task was reassigned to another staff.”

5.  According to the Plaintiff, the aforesaid statements were also repeated by the Defendant orally in a meeting held on 3 August 2022 (“Oral Statements”), in which 3 other members of N were also present.

6.  There are some histories preceding the 1^st and 2^nd Emails, including the exchanges between M and the Plaintiff on 26 July 2022 and the meeting between the parties and M on 28 July 2022.[2] I do not intend to set out the particulars of those events in detail. It suffices to say that what took place on those occasions is disputed by the parties.

7.  Further, in between the 1^st and 2^nd Emails, the Plaintiff has also sent an email in reply to the 1^st Email in which he claimed that: (a) he was not responsible for the fact that “schedule of UAT cannot be met”; and (b) he had completed all his tasks requested by the Defendant on time, and did not commit any fault in his job (“Plaintiff’s Reply”). This is something which I shall also bear in mind when construing the context of the Plaintiff’s claim.

8.  The Plaintiff’s employment with N was subsequently terminated in September 2022.

9.  In the present action, the Plaintiff claims that the relevant statements contained in the 1^st and 2^nd Emails meant and were understood to mean that:-

(1)  The Plaintiff failed to complete the assigned tasks on time;

(2)  The Plaintiff’s work performance fell short of standard;

(3)  The Plaintiff was incompetent to work on the Project; and

(4)  The schedule of UAT was delayed due to the Plaintiff’s failure to complete the assigned tasks on time.

(respectively referred to as “Meaning (1)” to “(4)” hereinbelow)

10.  The Plaintiff further claims that by reason of the publication of the relevant statements in the 1^st and 2^nd Emails and the making of the Oral Statements, his professional reputation has been seriously injured. The Plaintiff also claims that they were false and published maliciously.

LEGAL PRINCIPLES

11.  The legal principles applicable to a striking out application are not in dispute. In summary:-

(1)  For a claim to be struck out on the ground that it discloses no reasonable cause of action:-

(a)  It must be plain and obvious that the case pleaded has no factual basis or solid basis capable of proof and is a myth with no substantial foundation, or presents a tissue of improbabilities which ought not to be sent to proof: Chu Yue Bun v Lai Shiu Woon [2021] HKCA 1929, §35. The claim must be obviously unsustainable, the pleadings unarguable bad and it must be impossible, not just improbable, for the claim to succeed: Suen Wah Fai v Cis Global Opportunities Fund SPC [2023] HKCFI 2493, §4;

(b)  In relation to defamation claims, the proper test is whether it is plain and obvious that the words are incapable of bearing a defamatory meaning of the plaintiff: Wong Wing Ho v Chong Lai Wah [2008] 2 HKC 546, at 551E. The application should be decided upon the pleadings alone, and the claim should not be struck out unless its legal basis is unarguable or almost incontestably bad: Beijing Television v Brightec Ltd [1999] 2 HKC 665 at 674E-F;

(c)  The application is determined on the assumption that the facts as pleaded are true without extrinsic evidence: O 18 r 19(2), RDC and Hong Kong Civil Procedure 2024 (Vol 1), §18/19/3. Disputed facts should be taken in favour of the party sought to be struck out, and where the legal validity of a cause of action is sensitive to the facts, an order to strike out should not be made: Suen Wah Fai v Cis Global Opportunities Fund SPC (supra), §4;

(d)  For a claim to be struck out on the ground for being scandalous, the relevant claim must be irrelevant or inadmissible in evidence to prove any material allegation: Re Linea Trading Co Ltd HCCW 350/2004 (11 July 2005, Barma J, unreported), §4, or for the purpose of abusing and prejudicing the other party: Hong Kong Civil Procedure 2024 (Vol 1), §18/19/6. The sole question is whether the matter alleged to be scandalous has a tendency, or would be admissible in evidence, to show the truth of any allegation in the claim that is material with reference to the relief sought: Christie v Christie [1873] LR 8 Ch App 499 at 503;

(2)  For a claim to be struck out on the ground for being frivolous, vexatious and abuse of process, the claim must be incapable of reasoned argument, without foundation or cannot possibly succeed, or was known to have no substance or be bound to fail, or on its face so manifestly misconceived that it can have no prospect of success, or is oppressive and/or lacks bona fides (implying the doing of something over and above that which is necessary for the conduct of the litigation, and suggesting the existence of some spite, or desire to harass the other side to the litigation, or some other improper motive): Yifung Properties Ltd v Manchester Securities Corp HCA 1341/2014 (19 October 2015, Q Au-Yeung J, unreported), §§12-13. It will be a clear abuse of process to commence a case without solid foundation and where an action is absolutely groundless: Hong Kong Civil Procedure 2024 (Vol 1), §18/19/9.

12.  Further, in order to succeed in a claim for defamation, the plaintiff needs to show 3 essential elements: Bawang International (Group) Holding Ltd & Anor v Next Magazine Publishing Ltd HCA 1109/2010 (23 May 2016, Lok J, unreported), namely:-

(1)  There must be a defamatory statement by the defendant;

(2)  Such statement must have reference to the plaintiff; and

(3)  The statement must be published.

13.  On the first element, the test is whether the statement is to the claimant’s discredit, or tend to lower him in the estimation of others, or cause him to be shunned or avoided, or expose him to hatred, contempt or ridicule. A statement can be defamatory if it imputes to a person in any office any unfitness or want of ability to discharge its duties: Gatley on Libel and Slander (13^th Ed), §§2-001 & 2-003. In this regard:-

(1)  A statement is defamatory even if the imputation is true. Truth of a statement only goes to the justification defence that the defendant can raise;

(2)  A defamatory imputation is presumed to be false. The burden is on the defendant to show that the imputation is substantially true.

14.  In determining the meaning of words in a defamatory statement, the following principles are relevant: Hong Kong Far Infrared Rays Association Ltd v Lam Hong Nam [2021] HKCFI 3884, §107:-

(1)  Words are normally construed according to their natural and ordinary meaning (including implied, inferred or indirect meanings), ie the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of world affairs, would be likely to understand them;

(2)  The ordinary reader, who is taken to be the representative of those who would read the publication, is “a sort of half-way house between the unusually suspicious and the unusually naïve. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care … and his capacity for implication or drawing inferences is greater than the lawyer’s … The layman reads in an implication much more freely, and … is especially prone to do so when it is derogatory …”;

(3)  In reading the words, the article must be taken as a whole, and the context and circumstances of the words in an article must be taken into consideration. The Court should rule out any meaning which can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation.

15.  For malicious falsehood, the plaintiff will have to prove that: (a) the complained words are false and that (b) the words were made with malice. In this regard, the falsity of the statement is to be determined by what the words would convey of the ordinary reader: Fan Chak Wah Edmond v Lam Wai Keung HCA 1318/2008 (26 June 2009, Burrell J, unreported), §38; and if a man says something he knows to be untrue, it is malicious ipso facto: Gatley on Libel and Slander (13^th Ed), §§22‑13 & 22‑14.

DEFENDANT’S CASE

16.  For the purpose of the striking-out application, the Defendant relies on two grounds, namely:-

(1)  The relevant statements in the 1^st and 2^nd Emails are factual statements and do not bear the alleged defamatory meanings; and

(2)  The contents of the 1^st and 2^nd Emails are true and indeed congruent with the Plaintiff’s pleaded case.

17.  There is no dispute by the Defendant (and in my view rightly so) that the relevant statements have reference to the Plaintiff and were published.

DISCUSSION

18.  The primary issue which I have to resolve is whether it is plain and obvious that the relevant statements in the 1^st and 2^nd Emails are incapable of bearing the defamatory meanings alleged by the Plaintiff. There is no dispute by the Defendant that Meanings (1) to (4), if established by evidence, are defamatory.

19.  Despite the industrious effort by Mr Chan, counsel for the Defendant, I am unable to come to such conclusion. My view is supported by the followings:-

(1)  Under the 1^st Email, the Defendant stated that the Plaintiff “cannot meet the schedule of UAT to fix the assigned function (as attached) and PGT Form by Aug 3”. Further, in response to the Plaintiff’s Reply that the inability to meet the schedule was not due to the fault of the Plaintiff who claimed to have completed all his tasks, the Defendant stated in the 2^nd Email that “I do not agree on what you have said that you complete all tasks”. The literal meaning of the words (in their natural and ordinary sense) appears to be that, from the Defendant’s perspective, the Plaintiff had failed to complete all the tasks which had resulted in or was a cause of the failure to meet the schedule of the Project by 3 August 2022 (ie the deadline of the UAT);

(2)  In my view, Meanings (1) and (4) would prima facie be supported by the relevant statements. The Defendant argued that by the time of the publication of the 1^st and 2^nd Emails there were still two days remaining before the Project deadline, and Meaning (4) that the UAT schedule “was delayed” (implying that the Project deadline was not met) would factually be impossible. In my view, such a reading is arguably too restrictive or legalistic and would be contrary to what an “ordinary reader” should be, who “may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care … and his capacity for implication or drawing inferences is greater than the lawyer’s”: Hong Kong Far Infrared Rays Association Ltd (supra), §107. Given the Defendant has clearly recited the Plaintiff’s position in the 1^st Email that he could not complete the task by the deadline and the Defendant’s decision to re-assign the task at such a late stage before the deadline, it would not be unusual or utterly unreasonable for an ordinary reader (in the position the recipients of the 1^st and 2^nd Emails) to apprehend that there was a delay in the schedule. In any event, it is not plain and obvious that the relevant statements cannot bear the Meanings (1) and (4);

(3)  There is also a factual dispute between the parties as to whether the task was actually assigned to the Plaintiff and, in this respect, the Defendant contended that this point was beyond argument. Although this issue is contested by the Plaintiff, it does not mean that the relevant statements would not be defamatory if this fact cannot be established, since falsity only goes to the defence of justification and an imputation can be defamatory even if it is true: Gatley on Libel and Slander (13^th Ed), §§2‑001 & 2‑003. In a striking-out application for want of cause of action, the Court is only concerned with whether there is a plain and obvious case that the words are incapable of bearing a defamatory meaning: Wong Wing Ho (supra) (at 551E) and, in determining this question, the proof of a viable defence (save for a limitation defence) does not mean that there is no reasonable cause of action: Polyline Development Ltd v Chin Lin Chuen [2021] HKCFI 483, §86. Similar reasoning also applies to the related argument by the Defendant that the statements in the 1^st and 2^nd Emails are substantially true or congruent to the Plaintiff’s case;

(4)  As for Meanings (2) and (3), mere inability to meet schedule and/or complete the tasks does not per se imply that the Plaintiff’s work performance has fallen short of standard or the Plaintiff was incompetent on the Project. However, these meanings could arguably be imputed when it was also mentioned under the 1^st Email that N’s management has “decided to swap [the Plaintiff] to do another assignment and let others to [sic] pick up the programming”. Similar remark was also made in the 2^nd Email when the Defendant stated that “Since the schedule could not be met, this task was reassigned to another staff”;

(5)  In my view, the statements could arguably be understood by an ordinary reader to mean that despite the Plaintiff’s inability to meet the schedule and despite the limited time left before the Project deadline, someone with no particularly outstanding quality (as can be seen from the use of the unqualified words “others” and “another staff”) would be able to complete the task within a much shorter time and meet the deadline (for otherwise there would be no point to reassign the task) – unlike the Plaintiff. An implication or inference can arguably be drawn that the Plaintiff’s performance was below the ordinary standard and the Plaintiff was therefore incompetent. Meanings (2) and (3) are therefore prima facie supported by the relevant statements;

(6)  The Defendant argued that the plain words of the 1^st and 2^nd Emails do not support Meanings (1) to (4) as there was no specific mention of the Plaintiff’s “performance”, “competence”, “other tasks” or “delay” therein. In my view, this is a misunderstanding of the meaning of “natural and ordinary reading”, which does not only include literal meaning arising from plain words but also implications or inferences: Gatley on Libel and Slander (13^th Ed), §§3-017 & 3-018;

(7)  Where the relevant statements are arguably stings on the Plaintiff’s efficiency and/or professional ability (and I have found to be the case), defamatory meaning is prima facie established: Golden Field Glass Works Co Ltd v Yeung Chun Keung DCCJ 1942/2012, §49 (citing Sim Hok Gwan v Tin Tin Yat Po Ltd HCA 287/1979 (9 March 1981, Roberts CJ, unreported)). The principle applies to all professions or calling. In fact, it was observed that an imputation of inefficiency or incompetence in a person’s profession or calling is usually defamatory, though it may not even lower him in the estimation of others: Gatley on Libel and Slander (13^th Ed), §2-034. For this reason, whether the Plaintiff’s esteem would be lowered in the eyes of the recipients of the 1^st and 2^nd Emails (which the Defendant attempted to argue in the hearing) is of peripheral relevance.

20.  By reason of the above, I am of the view that the Defendant has failed to show a plain and obvious case that the Plaintiff’s claim has no reasonable cause of action for defamation.

21.  Regarding malicious falsehood, the Plaintiff primarily repeated his case on defamation save for some added particulars on the issue of malice and, in this regard, I repeat my view above regarding whether the relevant statements are capable of bearing defamatory meaning alleged by the Plaintiff. In my view, I find it not impossible (rather than just improbable) that the Defendant had knowledge that the Plaintiff should not be held responsible for the delay for the reasons stated by the Plaintiff[3] and on this aspect sufficient particulars have been pleaded by the Plaintiff in relation to the Defendant’s knowledge. I do not intend to recite those particulars at length and it suffices to say that they have been summarized by the Plaintiff in paragraph 58 of the skeleton submissions filed on his behalf. The statements under the 1^st and 2^nd Emails are therefore ipso facto malicious.

22.  In any event, insofar as falsity of the relevant statements is concerned, I agree with the Plaintiff that there are contentious issues of facts on areas in which the Defendant seeks to allege to be true. In the premises, I find it not a plain and obvious case that the cause of action of malicious falsehood should be struck out.

23.  Given my findings above, I am not of the view that the Plaintiff’s claim is liable to be struck out for being scandalous, frivolous, vexatious or an abuse of process. Further, in relation to matters in the Plaintiff’s pleadings particularized in Annex B of the Defendant’s skeleton submissions in which the Defendant claims to be irrelevant, it suffices to say that they are either relevant to support the Plaintiff’s case or in response to allegations made against him. I am not of the view that they are so irrelevant so as to be liable to be struck out for being scandalous. There is also nothing to suggest that the Plaintiff’s claim is groundless or incapable of reasoned argument or manifestly misconceived. The Defendant’s application should therefore be dismissed.

24.  During the hearing, I have indicated to the parties about my concern that inability to complete certain task by a staff (even if the task was officially assigned to him) and the inevitable consequence of reassignment of the task to another staff with a view to meet client’s demand are commonplace in working environment, and it might be oppressive if any dissatisfied staff would be lightly allowed to proceed with lawsuit against the management on matters arising purely from the aforesaid workplace arrangement once such arrangement has gone published. However, such concern should always be balanced against one’s legitimate right to seek redress from the Court in circumstances where there is a genuine (or at least reasonable) case of libel and/or slander. Furthermore, I bear in mind the sentiment expressed by the Court in Wong Wing Ho (supra) regarding striking-out a defamation action that even in a case which appears to be extremely weak, “the temptation to hasten its demise should be resisted” (§2). In my view, each case should depend on its own facts and the current case is not one which is plain and obvious that “the legal basis is unarguable or is incontestably bad” that it deserves to be subject to this drastic remedy: Beijing Television (supra), at 674E-F.

DISPOSAL

25.  In the circumstances, I order that the Defendant’s application under the Summons dated 20 March 2024 be dismissed.

26.  Costs should normally follow the event. I make an order nisi that costs of the application and hearing be to the Plaintiff in any event to be summarily assessed, with certificate for counsel. Unless either party applies to vary the same by way of summons, the said order shall become absolute after the expiration of 14 days from today.