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DCCJ 36/2018
[2023] HKDC 430
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 36 OF 2018
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BETWEEN
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WELL BORN REAL ESTATE MANAGEMENT |
Plaintiff |
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LIMITED (偉邦物業管理有限公司) |
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and |
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LEE TAK LUN ANDREW (李德麟) |
Defendant |
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(Also known as Andrew Lee) |
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| Before: |
His Honour Judge Harold Leong in Court |
| Date of Hearing: |
9-13 and 18 January 2023 |
| Date of Judgment: |
20 April 2023 |
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JUDGMENT
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1. This is a defamation action brought by Well Born Real Estate Management Limited (“Well Born”), which manages, inter alia, the estate of Casa Marina 1 (“the Estate”) against Lee Tak Lun Andrew (“Mr Lee”), one of the owners in the Estate, concerning 4 sets of statements published in a WhatsApp group titled “Casa Marina 1’s Owner’s Group” (“the Group”) between 2 and 9 November 2017.
Background
2. It is not in dispute that the Group was established by Well Born on 7 June 2017 for the owners in the Estate including Mr Lee. The Group contains about 50 participants.
3. Mr Lee has served as the Chairman of the Management Committee (“the MC”) of the Incorporated Owners of Casa Marina 1 (“the IO”) during its 1st to 2nd terms in 2011 to 2015. He has also served as a Committee Member of the MC during its 3rd term from 2015 to 2017.
4. On 30 October 2017, Mr Lee stood for re-election for the 4th term (“the Election”) but was not elected.
5. It is also not in dispute that Mr Lee published the following in the Group between 2 and 9 November 2017:
a. “不幸這個屋苑就是有一班小圈子業主要控制管理，和管理處有密切的關係，不希望有異見人士加入委員會，特別是有才之士。司馬昭之心路人皆知。” (“the 1st Words”)
b. “更可怕的是管理處有子公司供應外援人手，從中賺取大量佣金。如果每個屋苑請4個外援，每個賺多一萬多元佣金一個月，一年計數便有60萬一年10個屋苑便有600萬一年額外收入。”(“the 2nd Words”)
c. “大家可以留意一下小圈子委員的家門前附近可能比其他人的門前管理設計很好。例如更清潔，園藝更靚，更光猛等等。” (“the 3rd Words”)
d. “有很多業主很擔心在淺一的選舉有做假因為所有 proxy 100% 是由管理處去處理，假 proxy 可以由管理處支持便可以瞞天過海，但是我是不相信有此事會發生。為要保障各業主：本人願意獎賞$280,000 現金給與任何人（特別是管理處內的人）如果管理處有人知道及出來指證有人確實在業主委員會選舉中的 proxy 有做假之事實 我是不相信會有做假 但是現在的操作實在令人懷疑”
“如果管理處可以獨家去處理所有業主在業主大會上的 proxy 而又用私隱理由反對公開，那麼管理處不是可以「隻手遮天」？…還有 proxy 可能會加入條款，例如我可以給陳太我的 proxy 但是要代我投票3號參選人……但是當晚我看到很多私下要求改票。改票的人是不是手上的是 proxy 票呢？似乎冇人過問”
“上次業主大會的投票做成很多漏洞，不可盡信”
“本人願意獎賞$280,000現金給與任何人（特別是管理處內的人）如果管理處有人知道及出來指證有人確實在業主委員會選舉中的 proxy 有做假之事實”
“前主席朱太都手拿20多 proxy．是真是假只有管理處知道其中原因。proxy 實在可以隨時做假冇人知，但是假的不能真，真的不能假” (“the 4th Words”)
6. There are minor differences between the parties in their pleadings regarding the proper English translations of the above but, suffice to say, this court can read the Chinese text as they are and does not require an English translation.
7. Mr Lee claims that the 1st, 2nd and 4th Words are not defamatory to the plaintiff (paragraph 8, 9, 14, 24 and 24A of the Re-re-amended Defence (“RRAD”), Trial Bundle A p 39-40, 45, 58-59), that 3rd Words do not make any reference to the plaintiff (paragraph 19 of the RRAD, Trial Bundle A p 51) and, alternatively, are not defamatory to the plaintiff (paragraph 20, 20A of the RRAD, Trial Bundle A p 52-53).
8. As an alternative, Mr Lee also claims qualified privilege as a defence (paragraphs 10, 15, 21, 25 of the RRAD, Trial Bundle A p 40-43, 47-50, 53-54, 59-60).
Legal principles
9. The relevant principles for the court to construe the meaning of the words are trite and succinctly set out in the Judgment of Lok J in Multi-Winner Investment Ltd. v Lau Ming Yee [2017] 1 HKLRD 328, at paragraph 42:
a. Words in an article are normally construed according to their natural and ordinary meaning, ie the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of world affairs, would likely to understand them;
b. The natural and ordinary meanings include implied, inferred and indirect meanings;
c. Although the same words in an article may bear different meanings to different readers (because of their temperament, knowledge or experience etc), for the purpose of defamation litigation, the words have only one single meaning, and the court has to determine what that single meaning is;
d. For the purpose of ascertaining the single meaning, the court puts itself in the position of a fictitious ordinary reader;
e. The fictitious “ordinary reader” is described as one with the following characteristics:
(i) He 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 into 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…;
(ii) The hypothetical reader is taken to be the representative of those who would read the publication in question;
f. In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation”;
g. The context and circumstances of the words in an article must be taken into consideration, and the article must be taken as a whole;
h. Where the alleged libel is contained in a letter, the whole of the correspondence would form part of the context, for it may be assumed that the other party to the correspondence is aware of its contents;
i. Where there is disagreement as to what should count as context, it has been suggested that the test is what, having regard to all the circumstances, a reasonable person would be regarded as having read or seen.
10. Context is of considerable importance when seeking to ascertain the meaning of a given statement, and it is important that these words were published in a WhatsApp group and the court should take into account in such social media postings how the words would be interpreted by a group user bearing in mind the way such messages are made and read.
11. Mr Jin Pao SC (“Mr Pao”), senior counsel for Mr Lee, argued in his Opening Submission that since the Words were published in a WhatsApp group, the court should reflect the fact that “the medium is casual and conversational, that readers scroll through and do not pause and reflect, and the reaction is impressionistic and fleeting” (Stocker v Stocker [2020] AC 593; Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189; Monroe v Hopkins [2017] 4 WLR 68; Monir v Wood [2018] EWHC 3525 (QB); Smith v ADVFN plc [2008] EWHC 1797 (QB)).
Application of the legal principles
12. I am of the view that the medium of an estate property owner’s WhatsApp group is not quite like a “multi-dimensional conversation” platform like Twitter or Facebook as suggested by Mr Pao: it is not a broadcasting platform to enable one to share “short bursts of pithily expressed information” all over the world. Twitter is limited to 140 characters. WhatsApp is not, and further, it is a platform shared within a circle of acquaintance and friends usually for a common purpose.
13. There is a dispute between the parties on whether the Group was, at the relevant time, intended only to be a unilateral information dissemination platform for Well Born to the owners, or whether it has progressed to the stage where the platform was intended for bilateral communications between the plaintiff and the owners. I think such minor dispute is not relevant: in either case, the intended purpose of the Group must be for the common interest of the owners and Well Born in sharing information relevant to the management and affairs of Casa Marina 1.
14. The Group is therefore a more serious and focused communication platform and the court should assume the fictitious role of the ordinary owner who has the common duty and legitimate interest in the management and affairs of the estate when construing the meaning of the words.
15. Of course, to take into consideration the context and circumstances of the Words, it is also important that all the WhatsApp conversations during the relevant time should be read as a whole.
16. It is of note that prior to the Election, the Group was clam, cordial and rather inactive. Mr Lee, despite being all along being the Chairman or Committee Member of the MC for some 6 years prior to this time, never published anything critical of the MC, other committee members of the MC, or, indeed, Well Born.
17. Indeed, under cross-examination, Mr Lee admitted that between June 2017 (when the Group was first set up) and prior to the Election, he never mentioned in the Group matters like: there was a “small circle” of owners in the estate that wanted to control the Estate; the Estate spent too much money on the hiring of temporary security workers; the “small circle” and Well Born have any improper relationship; or that there was any “利益輸送” between the “small circle” and Well Born.
18. In fact, Mr Lee’s postings in the Group immediately before the Election were simply information about recent property transactions (Trial Bundle C3 p 474).
19. After Mr Lee lost the Election, which happened shortly after midnight, his attitude toward the MC and Well Born took a 180-degree turn. He published an “open letter” in the Group an hour or so later (01:35:03 on 31 October 2017, Trial Bundle C1 p 480) when, for the first time, he advanced what appeared to be a conspiracy theory on the existence of a “small circle” of owners and the alleged procedures it had used to eliminate the “outsiders” in the MC so as to take control. He claimed, for the first time, that there were “countless” problems with the management of the estate. He also raised that there were owners complaining the MC of “黑箱作業” etc. which was surprising given that Mr Lee himself defended against this compliant vigorously only a few months ago. (I will return to this point in paragraphs 85 and 86 below.)
20. In fact, another owner in the Group, “Philip Judy Tse”, replied to Mr Lee at 2:31am speaking out against Mr Lee’s conspiracy theory and advised him not to spread rumours to create disputes and insult others just because he lost the Election etc (02:31:20 on 31 October 2017, Trial Bundle C3 p 481).
21. However, instead of following that advice, Mr Lee doubled down on his conspiracy theory, and, despite rather cordial messages from both the newly elected treasurer and chairman, Mr Lee replied with rather smearing remarks against them and the alleged “small circle” of owners and even invited others to form an alternative group of “righteous” owners to pursue a “better” Casa Marina 1.
22. In a later message, Mr Lee asked for “righteous, far-sighted and capable” owners to monitor every move of the MC and Well Born, and suggested that the chairman and committee members of the MC to declare their personal interests, including any special preferential treatment (“特別優待”), gifts, meals, “special instant attendance” service etc from Well Born (08:34:24 on 1 November 2017, Trial Bundle C3 p 494).
23. I note that this was not a “general” request seeking committee members to declare any conflict of interest: Mr Lee has provided actual examples of such acts (eg special preferential treatment (“特別優待”), gifts, meals from Well Born) which, of course, would indicate to an ordinary owner that Mr Lee might have some “insider” knowledge of what had been going on.
24. When another owner raised why Mr Lee, after so many years as a committee member and chairman, would now raise these problems with “利益輸送”, Mr Lee gave examples of such “problems”. One of which was his allegation that Well Born was spending too much money on the hiring of temporary security workers but the then chairman of the MC did not take any action despite complaints raised by a Cindy Tsui (who also lost in the Election). Mr Lee further stated how those who raised complaints against Well Born got “kicked out” in the Election and those who did not could remain (08:52:03, 08:55:28, 08:57:02 on 1 November 2017, Trial Bundle C3 p 494-495).
25. In these messages, Mr Lee was clearly attempting to produce evidence and examples to insinuate “黑箱作業” of the MC caused by “利益輸送” between the “small circle” of owners and Well Born, and thus providing the basis of the conspiracy theory of why “righteous” people like Cindy Tsui and himself lost the Election: the “small circle” has manipulated the Election to get rid of them so as to maintain the “利益輸送” with Well Born.
The 1st Words
26. This was the background and context when the 1st Words was published by Mr Lee on 2 November 2017 at 02:59 (02:59:56 on 2 November 2017, Trial Bundle C3 p 500):
“不幸這個屋苑就是有一班小圈子業主要控制管理，和管理處有密切的關係，不希望有異見人士加入委員會，特別是有才之士。司馬昭之心路人皆知。”
27. Mr Pao argues that there was no direct reference made to Well Born and that Mr Lee was only telling the owners to guard against the “small circle” who were afraid of “talented” owners and Mr Lee’s concern was to break the monopoly of the “small circle” etc (paragraphs 30-33, Closing Submissions of the Defendant).
28. Mr. Jason Pow SC (“Mr Pow”), senior counsel for Well Born, argues that the 1st Words meant that Well Born has maintained close relationship with the “small circle” owners who were undesirable, exclusionists, dictatorial and/or with ulterior motives and thus it was questionable whether Well Born could properly discharge it management duties for the best interest of the estate etc (see paragraph 66 of the Plaintiff’s Closing Submissions).
29. I agree with Mr Pow, but I am of the view that the 1st Words go beyond a simple allegation of an association with “bad” people.
30. The ordinary and natural meaning of the 1st Words is that the MC was controlled by the “small circle” which maintained a close relationship with Well Born and which also excluded “talented” owners to serve on the MC.
31. Given the background and context of what Mr Lee has insinuated earlier in the Group (see paragraph 25 above), an ordinary owner in the Group would understand that this “close relationship” could only mean the “利益輸送” between the “small circle” and Well Born so the “small circle” can perform “黑箱作業” ; and any “talented and righteous” owners (like Cindy Tsui and Mr Lee himself) were excluded from the MC so to prevent any questioning of Well Born’s management problems (like the alleged over-spending on security guards).
32. Mr Lee, in court, tried to maintain the innocent nature of this suggestion of a “close relationship” of the MC and Well Born. He suggested that he simply mentioned it to indicate that there was a close relationship and no more.
33. I do not accept this: the committee members of MC may have hundreds of “close relationships” with other individuals or companies in Hong Kong, and Mr Lee did not mention such. The only reason why he mentioned the “close relationship” with Well Born alone under the context of the messages was to remind the reader of his earlier insinuation of “利益輸送” between the “small circle” and Well Born.
34. In other words, Mr Lee was clearly informing (or reinforcing) the owners of his conspiracy theory: the “close relationship” between “small circle” and Well born was maintained by the “small circle” receiving benefits (“利益”) from Well Born in exchange that they would monopolise the MC to prevent anyone questioning and taking action against Well Born’s management faults (in, for example, the alleged over-spending).
35. This was what Mr Lee meant by “黑箱作業”, and this was what Mr Lee wished the owners to understand as the reason why he and Cindy Tsui (being the “righteous” owners) lost the Election.
36. And just in case some owners still did not get this conspiracy theory, Mr Lee added: “司馬昭之心路人皆知”!
37. Thus, I am of the view that, under the context, the 1st Words not only accused Well Born of association with the “bad” “small circle”, but further that both Well Born and the “small circle” were in it together as co-conspirators for their mutual benefit at the expense of the interest of the owners. This is clearly defamatory of Well Born.
The 2nd Words
38. There were then discussions amongst the owners in the Group concerning the issue of hiring of temporary security guards. Cindy Tsui raised concerns of the difficulties in hiring security guards and extra monthly expenditure needed to hire external temporary guards. Another owner mentioned her understanding that salaries for permanent guards were substantially lower than salary for temporary guards, and her concern that permanent staff would likely leave.
39. It was under this context that Mr Lee published the 2nd Words (14:49:54 on 3 November 2017, Trial Bundle C3 p 509):
“更可怕的是管理處有子公司供應外援人手，從中賺取大量佣金。如果每個屋苑請4個外援，每個賺多一萬多元佣金一個月，一年計數便有60萬一年10個屋苑便有600萬一年額外收入。”
40. Mr Pao argues that this has not made any direct reference to Well Born but only made a reference to a subsidiary of Well Born which should be considered a separate entity.
41. Mr Pao also suggest that the 2nd Words are subject to two qualifying statements, namely “更可怕的是” and “如果”, so this was not a statement of facts but only a hypothetical situation which could happen.
42. I do not agree with such arguments.
43. Again, given the context of the ongoing WhatsApp conversation, the ordinary and natural meaning of the 2nd Words is another conspiracy theory advanced by Mr Lee: this time, he claimed that Well Born was conspiring with its subsidiary company: Well Born sought to hire external staff from its own subsidiary and so earned itself a large amount of commission, and that this occurrence was “even more frightening” (“更可怕”) than the concerns previously raised by other owners in the discussion regarding permanent staff leaving and having to pay more salaries for external temporary staff.
44. In other words, Mr Lee was telling the owners that, “even more frightening” than the estate losing permanent staff and having to pay more to hire external temporary staff, there was another conspiracy: the temporary staff were actually supplied by Well Born’s own subsidiary company and Well Born arranged so in order to earn “大量佣金” as some sort of “kick-back scam”.
45. Clearly, Mr Lee was not suggesting a “hypothetical” situation when using the words “更可怕的是”.
46. Instead, the ordinary owner in the Group would understand this to mean that an “even more frightening” situation was the existence of a corrupt “kick-back scam” that Well Born was conspiring with its subsidiary company against the interest of the owners.
47. The second part of the 2nd Words starting from “如果” was indeed a hypothetical calculation of how much Well Born could earn as “佣金” by such an arrangement. Mr Lee was doing the calculation to show the owners how “大量” this “kick-back” commission could be in order to reinforced how “even more frightening” this alleged “kick-back scam” was.
48. There was no question that the 2nd Words were defamatory of Well Born.
The 3rd Words
49. Mr Lee published the 3rd Words a few days later (08:18:29 on 9 November 2017, Trial Bundle C3 p 513):
“大家可以留意一下小圈子委員的家門前附近可能比其他人的門前管理設計很好。例如更清潔，園藝更靚，更光猛等等”
50. Mr Pao argued that these words make no reference to Well Born, and simply suggesting that, literally, the front of the houses belonging to the “small circle” was better managed and designed: cleaner, more beautiful gardening and brighter.
51. I am of the view that an ordinary owner would understand very well under the context that the front of the houses in the estate (regarding the cleaning, gardening and lighting) were managed by Well Born. Thus Mr Lee asking the owners to “pay attention” to the better management and design at the front of these houses was again his way of providing evidence and argument to support the conspiracy theory he already insinuated in the earlier messages: ie there was “利益輸送” between Well Born and the “small circle”. In particular, Mr Lee had already mentioned special preferential treatment “特別優待” by Well Born which, of course, these would serve as examples.
52. Thus, the ordinary and natural meaning of the 3rd Words to an ordinary owner in the Group under the context was that Well Born gave special preferential treatment to the “small circle” owners thus being partial and unfair in its management operations.
53. Of course, given what Mr Lee stated before, the ordinary owner would understand that Well Born gave such “利益” to the “small circle” owners so that its own management faults and “kick-back scam” would not be questioned or stopped by the MC which was monopolized by the “small circle” owners.
54. Mr Pao also referred to Mr Lee’s message publish prior to and after the 3rd Words which “merely showed Mr Lee’s concern regarding the composition of the MC and the reduced number of the members” and “proposed to call an EGM to increase the number…” (paragraphs 33 and 34 of the Opening Submission of the Defendant, paragraphs 62 and 63 of the Closing Submissions of the Defendant).
55. This is not entirely true. I note that, in the same message prior to the 3rd Words, Mr Lee went on to claim how this reduced number of members could allow the “small circle” to control MC which would propose raising funds for expensive projects or paying unnecessary costs, and thus causing the management fee to increase by 15-25% a year (08:18:29 on 9 November 2017, Trial Bundle C3 p 513).
56. As such, Mr Lee has “primed” the readers for the 3rd Words (which continued on from the same message) to show that there were indeed “特別優待” by the plaintiff for the “small circle” which allowed such “利益輸送” between the two.
57. In fact, Mr Lee’s insinuation went beyond the conspiracy he claimed before (which was that the plaintiff benefitted from “small circle” taking no action against the plaintiff’s many management faults). Now he was insinuating further that this could allow the plaintiff to charge a substantial yearly increase in management fees to cater for the “extravagant” “small circle” owners. Mr Lee was at pains to point out that this could mean “花很多無謂的錢” etc, so any reasonable owner would understand this to mean that that the alleged conspiracy and corrupt relationship between the plaintiff and the “small circle” was to the detriment of the owners of the Estate.
58. As such, the 3rd Words were clearly defamatory of Well Born.
The 4th Words
59. The 4th Words were published by Mr Lee in the Group on 9 November 2017 from 10:03 until 14:45 (10:03:13, 13:35:27, 13:36:35, 14:19:40, 14:45:53 of 9 November 2017 Trial Bundle C3 p 515-517):
“有很多業主很擔心在淺一的選舉有做假因為所有 proxy 100% 是由管理處去處理，假 proxy 可以由管理處支持便可以瞞天過海，但是我是不相信有此事會發生。為要保障各業主：本人願意獎賞$280,000 現金給與任何人（特別是管理處內的人）如果管理處有人知道及出來指正有人確實在業主委員會選舉中的 proxy 有做假之事實 我是不相信會有做假 但是現在的操作實在令人懷疑” (“the 1st Passage”)
“如果管理處可以獨家去處理所有業主在業主大會上的 proxy 而又用私隱理由反對公開，那麼管理處不是可以「隻手遮天」？…還有 proxy 可能會加入條款例如我可以給陳太我的 proxy 但是要代我投票3號參選人……但是當晚我看到很多私下要求改票。改票的人是不是手上的是 proxy 票呢？似乎冇人過問” (“the 2nd Passage”)
“上次業主大會的投票做成很多漏洞，不可盡信” (“the 3rd Passage”)
“本人願意獎賞$280,000現金給與任何人（特別是管理處內的人）如果管理處有人知道及出來指正有人確實在業主委員會選舉中的 proxy 有做假之事實”(“the 4th Passage”)
“前主席朱太都手拿20多 proxy．是真是假只有管理處知道其中原因。proxy 實在可以隨時做假冇人知，但是假的不能真，真的不能假 ”(“the 5th Passage”)
60. In his opening submissions, Mr Pao made much of Mr Lee mentioning twice “I do not believe” in between the messages containing the 4th Words (“我是不相信會有做假”) in 1st Passage and “但是我是不相信有此事會發生” in 14:19:40 just before the 4th Passage) thus Mr Lee “expressly made it clear twice that he did not believe that there was any misconduct in the election”. And making an offer of HK$280,000 as a reward for information for fraud was “made in the context where Mr Lee had stated unequivocally that he did not believe that there was any fraud”. (paragraphs 39 and 40 of the Opening Submissions of the Defendant).
61. In his closing submissions, Mr Pao expanded his arguments. He said that Mr Lee was merely repeating the suspicion of other owners (but not his own view) in the 1st Passage which started with “有很多業主很擔心”. As for 2nd Passage, it started with “如果” so Mr Lee was “raising a hypothetical situation”. Mr Pao further argued that the 3rd Passage should be read together with Mr Lee’s earlier message (03:05:30 on 31 October 2017 (ie 9 days ago!), Trial Bundle p 482) when he stated “今次選舉是合法的” so this “negates any suggestion or suspicion of rigging”. As for the 5th Passage, Mr Pao submitted that claiming only Well Born would know whether Madam Chu (the former Chairlady) did in fact hold more than 20 proxies was not a suggestion that Well Born “was part of any rigging”.
62. I am of the view that, when reading the entire passage that the 4th Words were sourced from, it was striking that, despite Mr Lee claiming twice that he did not believe in any fraud in the Election, these were bare assertions: he did not once provide any argument or evidence to support that “claimed” belief.
63. In sharp contrast, Mr Lee went on and on providing plenty of allegations and evidence of suspicious circumstances that would suggest the contrary to the reasonable reader: allegations of faked proxy, how Well Born refuse to disclose the proxy using “privacy of personal data” as excuse thus could “dictate everything” (“隻手遮天”) and control all the voting in the Estate at its own will (ie the 2nd Passage) which argument/concern was basically repeated again at (14:19:40 on 9 November 2017, Trial Bundle C3 p 517), that there are many “loopholes” in the Election so cannot be trusted entirely (ie the 3rd Passage) etc.
64. In short, all along, all the arguments and allegations raised by Mr Lee (whether claimed to be raised on behalf of “other owners” or not) were one-sided and an objective reading of the 4th Words would naturally lead an ordinary owner in the Group to raise at least some suspicion of fraud in the Election.
65. Indeed, if Mr Lee had genuinely attempted to convey a message to the reader that there was no fraud (or at least that he believed that there was no fraud), he would have presented supportive evidence or arguments. He had not.
66. As such, one should not read Mr Lee’s claims of “I do not believe” as a stand-alone statement. Taken the background and context of the passage as a whole, such claims were merely a verbal “sleight of hand” to create a false impression of “impartiality” to strengthen his real message:
“Look! I am so fair and impartial…but even I have suspicion!”
67. In fact, Mr Lee did just that: he stated “我是不相信會有造假” but immediately qualified that by stating “但是現在的操作實在令人懷疑” (the 1st Passage). If Mr Lee really meant what he said in the first sentence, he would have stopped at the first sentence without a “but…” (“但是…”) Thus, the first sentence was just an attempt to create a false impression of “impartiality” in order to convince the reader of the second sentence.
68. I also find Mr Pao’s suggestion that that the 3rd Passage should be read together with Mr Lee’s earlier message on 31 October 2017 (some 9 days earlier) unconvincing. Reading all the messages during that period of time as a whole, it is clear that Mr Lee has been “doubling-down”, stirring up more suspicions and advancing more conspiracy theories in the Group as he went along. I have given two such examples in paragraphs 43 and 57, and this is another: it was clear that by 9 November 2017, he was no longer maintaining that “今次選舉是合法的” because, as mentioned above, he has presented no argument or evidence to support that statement all along.
69. I also note with interest that, just like my observations stated in paragraph 67 above, Mr Lee similarly qualified his statement “今次選舉是合法的” by following it with the sentence: “但是幕後有不可接受的居心”. He was actually employing the same “sleight of hand” verbal technique.
70. Therefore, I find that the ordinary and natural meaning of the 4th Words in the proper context was that there were reasons to suspect that someone had used faked proxies in the Election and that some of the staff of Well Born were aware of this but were “in the conspiracy” and had attempted to cover this up.
71. I agree with Mr Pow that allegations of suspicion (short of assertion of guilt) are capable of being defamatory (Gatley at paragraph 3.28). The 4th Words would amount to a Level 2 “imputation that there are reasonable grounds to suspect…” out of the “3 Levels of defamatory meanings” (Chase v News Group Newspaper Ltd. [2003] EMLR 11).
72. Of course, the fake “impartiality” statements of Mr Lee (as stated above) and the offering of an award for information simply support the imputation that there were reasonable grounds to suspect. Objectively, why would anyone offer an award for information if there was simply no reasonable suspicion?
73. Mr Lee’s attempted explanation of this offer was that he was “offering to clear the name of the plaintiff”.
74. Drawing a parallel example: why would one offer a reward for information leading to the arrest of an alleged “murder suspect” when the alleged “victim” is all along alive and well? Following Mr Lee’s line of explanation, the answer would be: I only want to show that the alleged victim is alive and well! This is simply ridiculous.
75. In any case, this explanation failed completely because Mr Lee admitted that, despite not receiving such information after all these years (ie more than 5 years since that “offer for information”), he still has not published any statement or message to clear the plaintiff’s name. Clearly, Mr Lee’s explanation is a total lie.
76. Of course, this also touch on subjective intention which I will return to later.
77. Having established defamation in the Words, I can now turn to the defence raised by Mr Lee, the qualified privilege defence.
Qualified Privilege
78. This is the only defence raised by Mr Lee.
79. There is no dispute in the applicable legal principles and there is no dispute that in Hong Kong, the authorities show that there is a common interest amongst owners of a building with regard to matters relating to the affairs of the building (paragraph 69 of the Multi-Winner Investment case as above).
80. The only dispute is whether there was malice which would defeat the defence.
81. The court is taken to the judgment of Jonathan Lu & Ors v Paul Chan Mo-Po & Anor [2018] HKCFA 11:
“17. In order to decide whether a communication was published maliciously, for the purpose of rebutting a defence of qualified privilege, it is therefore necessary to decide two questions…First, was the occasion privileged, and if so, for what purpose? Secondly, was that the defendant’s purpose when he published the communication in question? …
…
26. It is important to bear in mind that, since the critical issue in relation to malice is the defendant’s motive in making the communication in question, and “the motive…can only be ascertained from an examination of the state of his mind” …the communication has to be understood in this context as the defendant meant it to be understood…
27. … “indifference to the truth of what he [the defendant] publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive believe that it is true…Even those who act carelessly, impulsively or irrationally are afforded immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest” …what is required from the defamer is “positive belief in the truth of what he published…or ‘honest belief’” …”
82. Thus, in deciding whether there is malice, the court needs to apply subjective analysis of the defendant’s state of mind and intention at the time the communications were made, and where the purpose for which privilege is accorded is consistent only with the communication of a matter which is believed to be true, as is usually but not invariable the case, the defendant’s knowledge that a matter was false at the time when he communicated it, or his reckless as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose.
83. It is not in dispute, and has been accepted by Mr Lee during cross-examination, that all the messages in the Group must be fair and the complaints must be honest and genuine.
84. The most glaring piece of evidence before the court is the 180 degree change of attitude after Mr Lee lost the Election.
85. On 13 June 2017, only some 3 ½ months before the Election, Mr Lee (who was at the time a committee member of the MC), published this in the Group (20:54:21, 20:56:24, 21:30:57, 21:45:43 on 13 June 2017, Trial Bundle C2 p 402-403):
“有個別業主無數次對各位委員大聲正面指委全個委員會都是黑箱作業，但是我六年來並沒有看到那一個委員得到什麼益處
…
各業主有不同的聲音，實在各委員也有不同的聲音。有人要開多些燈，有人要關些燈，有人要請多些保安員，有人要減保安員。有人要加薪保留舊的好的保安，有人想減薪省錢。實在在委員會內已經有很多不同的意見，最後都是少數服從多數
…
實在我問心，每一個委員都是在盡力為各位業主利益服務。在加管理費上實在迫不得已，我本人是最大受害業主，因為我付的管理費最多，但是用屋苑設施最少的一人
…
我相信在現時的環境制度下，不可能有任何委員可以黑箱作業”
86. As such, Mr Lee unequivocally stated that there was no “黑箱作業” and no “利益輸送” (“沒有看到那一個委員得到什麼益處”) for all 6 years that he was either the chairman or a committee member of the MC. In fact, Mr Lee was at pains to reassure the group that every committee member was trying their best to work for the interest of owners.
87. Further, Mr Lee has mentioned disputes regarding lightings in the Estate but he did not mention of any “特別優待” from Well Born to some committee members (eg the “small circle” owners) regarding their “家門前附近…更光猛”. He also mentioned disputes regarding employing securities guards but never mentioned “管理處有子公司供應外援人手，從中賺取大量佣金…”. Instead, he stated that such disputes were settled by majority votes and further added that although he suffered more than other owners from increase of management fees, he could not help it given (as he stated earlier) he needed to abide by majority votes.
88. Of course, if Mr Lee ever believed that there was “黑箱作業” of the MC and “利益輸送” between Well Born and certain committee members of the MC, or that there was any conspiracy for MC not taking action against the faults committed by Well Born including the alleged “security guard kick-back scam”, one would reasonably expect that Mr Lee would have raised it here.
89. Under cross-examination, when asked whether the message was true, Mr Lee gave some convoluted answers before finally admitting that:
“If I had said it, then it was the truth.”
90. This admission alone is already fatal to the defence of qualified privilege (at least regarding the 1st, 2nd and 3rd Words) because Mr Lee failed to provide any explanation as to why this “truth” (or “honest belief”) suddenly changed literally the moment he lost the Election: within hours, and for subsequent days, he began to spill out all sorts of accusations and conspiracy theories regarding “黑箱作業”, “利益輸送”, “kick-back scams” etc (which were the gist of the 1st, 2nd and 3rd Words).
91. In my view, this message and Mr Lee’s admission alone, showed that he could not have subjectively held an “honest belief” of what he published in the 1st, 2nd and 3rd Words and as such, his defence of qualified privilege must be defeated by malice.
92. There were other evidence showing malice, of course.
93. For example, regarding the 2nd Words, Mr Lee has failed to produce any evidence showing that Well Born has a subsidiary company which it employed external temporary security guard from, let alone any allegation of large amount of commission received by Well Born under this alleged “kick-back scam”.
94. Under cross-examination, Mr Lee firstly claimed that he was only telling the owners of a possible “loophole” and that he was not referring to Well Born (despite having already admitted in paragraph 13 of RRAD (Trial Bundle A p 45) that “管理處” in the 2nd Words referred to Well Born).
95. Further, in a bizarre attempt in explanation, Mr Lee claimed if he knew that this “kick-back scam” was true, he would not have said it in the Group! The logic of all this was challenged when he was asked whether he meant he would only state so if it was untrue. Mr Lee answered that if this was true, he would have reported it to the ICAC (which of course, he has not).
96. As such, whatever logic Mr Lee was working under in his thought process, he has effectively admitted that he was aware that the 2nd Words were untrue when he published it.
97. It goes without saying that this court accepts the evidence from the witnesses from Well Born as well as documents produced showing that there was a robbery at the Estate which resulted in Well Born actively attempting to hire more security guards, and that such a decision was approved by the MC. Well Born has in fact provided a certain service pledge regarding this hiring to the MC.
98. Importantly, all these were documented in various MC meeting minutes and other documents in 2016 during the time Mr Lee was serving as a committee member in the MC.
99. The court also accepts that Well Born has a vigorous tendering scheme for hiring temporary external security guards and there is no evidence that Well Born has hired any guards from any alleged own subsidiary company or has received any kick-backs or commissions from such arrangements.
100. As for the 3rd Words, Mr Lee own witness statement clarified that the “小圈子委員的家門前附近…更光猛” referred only to the lighting at the communal swimming pool. Although it was “Judy” (whom Mr Lee alleged belonged to the “small circle”) who proposed to extend the night-time pool lighting period for security reasons after the robbery, the MC (including Mr Lee) approved this by unanimous resolution.
101. Mr Lee agreed under cross-examination that the pros and cons were discussed at the MC meeting. Mr Lee also accepted that although Judy’s house was near the communal swimming pool, it was just one of the many houses in the Estate in the vicinity of the communal swimming pool so the extended pool lighting would benefit many owners and not just Judy.
102. It is of note that Mr Lee himself gave the same explanation for the extended pool lighting in the Group prior to the Election: “後來更因為有爆竊，所以全屋苑更加燈火光猛，這是可以理解的” (01:02:59 on 11 June 2017, Trial Bundle C2 p 393). Of course, two days later, Mr Lee wrote the messages stated in paragraph 85 above, reassuring the owners that the committee members of MC served the interests of every owner.
103. Again, Mr Lee failed to provide any explanation why his attitude regarding extension of pool lighting time suddenly changed after he lost the Election.
104. As for the “小圈子委員的家門前附近…園藝更靚”, Mr Lee agreed that there was a resolution proposed by an IO sub-committee, then the resolution was discussed by the MC (again whilst Mr Lee was himself serving in at the time) and a tender exercise was carried out. It was resolved that 8 projects were to be carried out. Only one of these 8 projects concerned an improvement of a communal garden of the Estate which was, again, near one of the alleged “small circle” owner’s house (amongst houses belonging to other owners).
105. Clearly, improvement on a communal garden is for the benefit of the whole Estate and not just to one owner whose house, amongst other houses belonging to other owners, happened to be nearby.
106. As such, these further show that Mr Lee could not have held an honest belief of the 3rd Words when he published them.
107. As for the 4th Words, under cross-examination, Mr Lee was evasive and flip-flopping between whether he held an honest belief that there was suspicion of election fraud: he first claimed that he was only reflecting other owners’ concern that the procedure was suspicious, he then admitted that he agreed with such concern, but then he back-tracked by stating that he did not suspect it himself but only that someone might exploit a “loophole”, and then he finally admit that he did have suspicion that there was fraud (“做假”).
108. In fact, Mr Lee already pleaded (paragraph 24.2A of RRAD, Trial Bundle A p 58) that “…the 4th Words only expressed the Defendant’s genuine concern in the election process…”
109. All along, Mr Lee failed to provide any positive evidence to support this suspicion of fraud: his allegations were based on mere possibilities, but there were perfectly good explanations.
110. For example, one of his causes of suspicion was that the proxy collection box was not double-locked. However, the 2016 guideline on the handling of proxy published by the Home Affairs Department (Exhibit P1) only suggested a double-lock and this was not a legal requirement. In any case, failure to double-lock a proxy box does not equate positive evidence to show that the votes have been tempered with.
111. Mr Lee also raised in court a new (and unpleaded) case that the opening of the proxy box was too big. There were disputes about the actual size of the opening but, in any case, this also does not equate positive evidence to show that the votes have been tempered with.
112. There was also a dispute on whether the Proxy List was posted during the Election. I would agree with the plaintiff’s witnesses that this was done as a routine and checked by Well Born’s manager of the Estate. In any case, if it was true that the Proxy List was not posted during the Election, Mr Lee could have raised the complaint there and then. He did not.
113. Mr Lee, in paragraph 10(i) of his supplemental witness statement (Trial Bundle B p 188) claimed that he had “specifically asked Tsang Kin Tong (the general manager of Well Born) …for information regarding the owners who gave a proxy. He initially replied to me that due to privacy, such information…would not be available to me.” Mr Lee was later given the Proxy List and he suggested that if this was posted, Tsang should have directed him to see it there and then. Thus, this was a “concern” or “loophole’ in the Election.
114. However, as observed by Mr Pow, even on Mr Lee’s own evidence, he did not ask for the Proxy List at the time. Indeed, Mr Lee’s case was that he was asking for “information regarding the owner who gave a proxy”. This would have touched on matters of personal data and privacy and it was entirely proper for Mr Tsang to refuse to disclose such.
115. In any case, if there were so many loopholes and concerns about the Election, Mr Lee could have raised complaints there and then. It is not in dispute that there were independent observers from the Home Affairs Office at the Election. Mr Lee failed to give any reasonable explanation why he did not do so.
116. The self-evident explanation of such delay is that Mr Lee’s assertion of suspicion of fraud are mere afterthoughts, after his lost the Election.
117. As regards Mr Lee’s offer of HK$280,000 bounty, as discussed in paragraphs 71 and 72 above, this could not have been an honest offer to “clear the plaintiff’s name” as pleaded (paragraph 25.5 of RRAD, Trial Bundle A p 60).
118. I find that when publishing the 4th Words accusing Well Born of suspected misconduct during the Election, Mr Lee clearly knew subjectively that it was untrue. He was not honestly furthering the interest of the owners and, indeed, his motive was not to further the common interest of the owners.
119. Therefore, the defence of qualified privilege against the 1st, 2nd, 3rd and 4th Words must fail due to malice.
Damages and relief
120. The plaintiff is seeking general damages and an injunction against further publication of the Words.
General Damages
121. It is trite that the purpose of general damages is to compensate the claimant for the effect of the defamatory statement and the matters affecting the consideration of the level of award includes: the conduct of the claimant, his credibility, his position and standing, and the subjective impact that the libel has had on him, the nature of the libel, its gravity and the mode and extent of its publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the verdict (Gatley paragraphs 9.4 and 9.5).
122. I would also refer to this court’s judgment in Well Born Real Estate Management Ltd. v Ho Wing Shan [2020] which relates to another owner in the Group publishing a defamatory statement similar to the 2nd Words in the present case. The award was HK$150,000 as general damages having considered various precedents including Hung Yuen Chan Robert v HK Standard Newspaper Ltd [1996] 4 HKC 519, Oriental Press Group Ltd v Fevaworks Solutions Limited [2012] 1 HKLRD 848, Bawang International (Group) Holding Limited & Anor v Next Magazine Publishging Limited HCA 1109/2020 and Leung Chi Ching Candy v Yeung Hon Sing [2019] HKDC 1428.
123. The court has revisited these cases again and note that considerations stated under paragraphs 35 to 40 of the Ho Wing Shan case (e.g. regarding the reputation and standing of Well Born, the size of the Group, Well Born not claiming actual loss and damages caused by the Words and the fact that Well Born is a company and not a natural person etc.) would similarly apply to this case.
124. In the current case, unlike in the Ho Wing Shan case, Mr Lee made defamatory statements on not just one but four occasions over several days and the accusations were not just regarding a “security guard kick-back scam” (ie the 2nd Words) but other misconducts (or suspected misconducts) regarding management of the Estate and the Election. However, I do not think this should be a simple multiplication given that accusation of a “kick-back scam” probably done the most serious damage to the reputation of the plaintiff out of the other accusations. Further, the 4th Words was an allegation of suspicion carrying a “level 2” defamatory meaning.
125. As such, I am of the view that HK$300,000 is the appropriate award of general damages in this case.
Other relief
126. The plaintiff has also sought an injunction against Mr Lee. It is trite that the court would consider such if there is reason to apprehend further publication by the defendant (Gatley paragraph 9.14).
127. However, I am satisfied that there is no evidence to show that Mr Lee has broadcasted the Words beyond the Group or that he has published any further defaming messages against the plaintiff since November 2017, which is almost 6 years ago.
128. As such, I do not think it necessary to grant an injunctive relief now.
Order
129. I would give the following order:
a. Judgment be entered for the plaintiff with the sum of HK$300,000 awarded as general damages.
b. There be a cost order nisi that cost of the action be to the plaintiff to be taxed if not agreed, with certificate granted for one counsel.
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( Harold Leong )
District Judge
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Mr Jason Pow, SC and Mr Raymond Ho, instructed by K.B. Chau & Co, for the plaintiff
Mr Jin Pao, SC and Mr Vincent Chen, instructed by Lam & Co, for the defendant
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