LI SAU MUI v. MAN WAI CHEONG

DCCJ 4322/2018

[2023] HKDC 995

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4322 OF 2018

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BETWEEN

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DECISION ON COSTS

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1.  On 17 May 2023, I handed down judgment in this case dismissing the plaintiff’s claim against the defendant for libel arising out of the contents of a letter dated 8 July 2017 (referred to as “the 8 July Letter” in the judgment). The facts of this case have been set out in my judgment and I shall not repeat the same here in detail, and I shall use the same abbreviations and nomenclature adopted in the judgment.

2.  Upon dismissing the plaintiff’s claim, I made a costs order nisi that the costs of this action be awarded to the defendant, with certificate for counsel. I also directed that should any party wish to vary the costs order nisi, written submissions shall be filed within the time specified in the judgment, and the application for variation would be dealt with on paper, unless otherwise directed by the court. The defendant then sought to vary the costs order nisi, and submitted written submissions to that effect, applying for an order that the costs of this action (including the costs of this application) be paid by the plaintiff to the defendant on an indemnity basis, with certificate for counsel, under Order 62 rule 28(3) of the Rules of the District Court, Cap 336H.

3.  The plaintiff also provided written submissions opposing the defendant’s application, but in the meantime invited the court to fix a date for an actual hearing, in view of the potentially serious consequence of the defendant’s application. The court acceded to that request, and a hearing was thus fixed on 14 July 2023. Meanwhile, a formal application by summons dated 15 June 2023 was also issued by the defendant.

4.  First and foremost, the defendant relies on Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 as the leading authority on questions concerning indemnity costs. The correct approach set out in that case has also been summarised by Bokhary NPJ in Commissioner of Inland Revenue v Poon Cho Ming John (No 2) (2020) 23 HKCFAR 74 at paragraph 4[1]:-

“4. With particular reference to indemnity costs but relevantly also to common fund costs, the following propositions emerge from this Court’s judgment in Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 at paras 14-18:-

(a) In certain circumstances, costs may be awarded on a more generous than usual basis of taxation so as to achieve a fairer result.

(b) It is for the receiving party to show that the case has some special or unusual feature.

(c) Such features are not confined to an ulterior motive, an improper purpose, deception or underhand conduct on the part of the paying party.

(d) Neither the attributes of the parties nor the character of the proceedings are irrelevant to the question of whether a more generous than usual basis of taxation should be ordered.

(e) The discretion to order a more generous than usual basis of taxation is not to be fettered or circumscribed beyond the requirement that such taxation be ordered only when it is appropriate to do so.

(f) As to that, the grounds on which a more generous than usual basis of taxation is to be ordered must be connected with the case. That extends to - but no further than to - any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation.”

5.  The defendant has further referred to Tang Wai Cho v Tang Wai Leung [2011] 1 HKLRD 1 at paragraph 32 where Stone J said that an award of indemnity costs would be an appropriate judicial response to an entirely unsatisfactory case.

6.  In considering this application, I shall bear in mind the above principles.

7.  The defendant contends that, first of all, the result of the trial is clear-cut, in that the defendant has succeeded in each and every ground on liability including justification, honest comment, qualified privilege and a lack of malice. It was also stressed that in the judgment I have found that the plaintiff has a general bad reputation in handling the affairs of the Village and thus would have suffered no damage in any event.

8.  It is also submitted by the defendant that as the plaintiff had refused to assist the villagers by witnessing their Application Forms seeking compensation from the Airport Authority in the circumstances as set out in the judgment, those villagers who were eager to accept the offer from the Airport Authority would naturally seek assistance from someone else, in this case the Vice-Chairman of the Tai O Rural Committee. However, the plaintiff had then issued a letter dated 29 June 2017 to members of the Committee heavily criticising the Chairman and Vice-Chairman of the Committee for interfering with the affairs of the Village. This conduct on the part of the plaintiff, it is submitted, had created the need for the defendant to sign, together with others, the 8 July Letter, the contents of which the court has already found to be justified and falling under the ambit of qualified privilege and honest comment. The defendant accuses the plaintiff of having an “obsession which fostered these unnecessary proceedings” whilst turning a blind eye to her own unreasonable way of handling the affairs of the Village. As the holder of a public office, she ought to have respected the comments by the villagers on her management of the affairs of the Village. Yet she had chosen to issue this unmeritorious claim that resulted in a full trial. Such conduct, it is submitted, should not be tolerated by the court.

9.  The defendant further criticises the plaintiff for singling him out as the only defendant whereas the 8 July Letter was in fact signed by 39 individuals.

10.  On the other hand, the plaintiff submits that there are certain aspects of the impugned words that have been admitted as defamatory, and the trial was for the defendant to make out his case. It is further submitted that although publication of the 8 July Letter was limited to the members of the Committee, it was not unreasonable for the plaintiff to initiate this claim. Also, this is not a case where the plaintiff has put forward a false or inflated case dishonestly.

11.  It is also contended by the plaintiff that her case could have been presented or pleaded in a better manner in relation to the precise meaning of the Words, the falsity of the 8 July Letter and the issue on malice. This however in my view is not a valid argument as the plaintiff was at liberty to plead her case in the appropriate manner, or even to apply for appropriate amendments before the trial.

12.  Further, the plaintiff submits that the matters for adjudication in this case were fact-sensitive matters and the court was asked to rule on “fine margins of appreciation”. Although the plaintiff eventually failed in her claim, her case was not inherently bad.

13.  Having considered the nature of this claim and the pleaded cases, especially the claim, the history of the rivalry between the parties as highlighted by the plaintiff, and submissions on both sides, I am not persuaded that this case warrants the exercise of my discretion to order indemnity costs.

14.  I appreciate that in defamation cases such as the present one, there is very often a certain amount of bitterness between the parties. Of course, each case has to be examined on its own facts, but I do note that in this particular case, there has been a development of events in which the parties had been at odds for some time, that eventually culminated in the commencement of the present claim. It seems to me that this is not a claim that was initiated purely out of personal vendetta. Part of the Words in the 8 July Letter, or their impugned parts as pleaded in paragraph 5(b) of the Statement of Claim, were admittedly defamatory in meaning as submitted by the plaintiff. In this regard, the plaintiff has also referred to a comparable case of libel in Mok Kam Kwai v Lam Mo Fat, HCA 1868 of 2010, 6 March 2014, referred to in my judgment dated 17 May 2023[2], where the court had found for the plaintiff. That case involved the defendant putting up banners in conspicuous spots in a village suggesting that the plaintiff, who was the chairman of a rural committee, did not act in the interest of the village and that he was incompetent and unfit to hold his office.

15.  Also, whilst the defendant eventually succeeded in each and every part of his pleaded defences, the court had to seriously consider the meaning of the Words, and examine the various defences put forward. In my view, it is difficult to say the plaintiff had clearly “made a mountain out of a molehill” as in Tang Wing Lam David & Anor v Yick Kam Ping Belinda, CACV 24 of 2005, 31 May 2005, a case involving a claim of defamation referred to by the defendant, where the two plaintiffs (being one solicitor and one trainee solicitor) had obviously over-reacted to a written complaint by the defendant that they had entered her premises without her consent during an inspection of her premises by surveyors appointed by the plaintiffs’ client. The facts of that case are far apart from the circumstances of the present case.

16.  In the round, I do not find any special or unusual feature of this case that would warrant taxation on a higher than usual basis. Having taken into account the applicable principles, I do not find that this is a case suitable for the making of an order for indemnity costs.

17.  I would therefore dismiss the defendant’s application, and order that the defendant shall pay the plaintiff the costs of this application, with certificate for counsel. Such costs are to be taxed, if not agreed.

18.  I thank counsel for their helpful submissions.