LO SAM SHING v. LI FONG

HCA 1803/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1803 OF 2011

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J U D G M E N T

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INTRODUCTION

1. This is the Plaintiff’s action against the Defendant claiming damages for defamation arising from the Defendant’s statement made at the time of the Plaintiff’s election campaign for the Tai Po District Council election held in November 2011.  The statement was contained in a letter issued by the Defendant (the “Defamatory Letter”) addressed to 船灣十一聯村村代表 (village representatives of Shuen Wan, ie Plover Cove), 執行委員 (executive committee members, presumably of the Tai Po Rural Committee), and 鄉親父老 (elders of the villages and other respected villagers).  The Plaintiff considered the content of the statement defamatory of him (the “Offending Words”).  He claims general, aggravated and exemplary damages and an injunction to restrain the Defendant from further publishing the Offending Words. 

2. The Defendant does not deny the publication of the Defamatory Letter.  He relies on the defence of justification, fair comment and qualified privilege.  Apart from challenging these defences, the Plaintiff argues that these defences are not available because the publication of the Offending Words was actuated by malice.

Personae dramatis

3. The Plaintiff is an indigenous villager of the New Territories.  He was and is a villager of Ha Tei Ha Village in Shuen Wan. At the material times in 2011, he was a retired businessman of 75 years of age.  Since 1980, he had participated in a lot of community work for villagers in Shuen Wan and was elected the village representative of Ha Tei Ha Village.  In 2003, he was elected District Councillor of Tai Po, a public office which he held until 2012 when he was not re-elected.  During his term of office, he maintained a District Councillor’s office at 1^st floor, 30 On Fu Road (the “Councillor’s office”).  He employed two to three assistants.  He also kept a private accommodation at the mezzanine floor of an old building in Wai Yan Street (the “private office”) near to his Councillor’s office, which he occasionally used for meeting members of the public and for recreational purposes with his friends.  At present, he is still an elected village representative of Ha Tei Ha Village.

4. Miss Luk On Kee (“Miss Luk”) and Ms Chan Shuk Yee (“Ms Chan”) were assistants employed by the Plaintiff in his Councillor’s office at the material times.  They handled the Defendant’s request for assistance (the “complaint”) lodged with the Councillor’s office.  They are now no longer in the employ of the Plaintiff. 

5. The Defendant is also an indigenous villager of the New Territories.  At the material times in 2011, he was 68 years of age. He was and is a village representative of Lei Uk Village in Shuen Wan (船灣李屋).  He had migrated to the United Kingdom where he had lived for about 40 years.  He received high school education and is fluent in English and Chinese.  He has now returned to reside in Shuen Wan.  He holds various lots of land in the New Territories belonging to his t’ong, one of which is known as Lot No 255 RP in DD23 (the “Defendant’s land”). 

6. Mr Man Chen Fai (“Mr Man”) is an indigenous villager of the New Territories.  He is the Vice Chairman of the Tai Po District Council, a member of the Executive Council of Heung Yee Kuk and Chairman of the Tai Po Rural Committee.  He had also held various other official positions at the village level in Tai Po and in various committees within the Tai Po District Council.  He received a copy of the Defamatory Letter dated 23 September 2011 through the mail.

7. Mr Shek Kwong Yin (“Mr Shek”) is an indigenous villager, an elected village representative of Sam Mun Tsai Village and an executive member of Tai Po Rural Committee.  He operated a general store in Sam Mun Tsai Village selling soft drinks, food stuffs and daily goods.

8. Mr Lau Chi Shing (“Mr Lau”) is an engineer and director of an engineering company.  He is a resident of Tai Po.  He was one of the three contesting candidates for the District Council election in November 2011.  He won the election.

9. Ms Wong Ching (“Ms Wong”) is a member of the Liberal Party in Hong Kong.  She had no involvement in this case.  She was called by the Defendant to give what purported to be expert opinion about handling of office documentation.  She opined that Ms Chan and Miss Luk were negligent in their handling of the relevant documentation.  But such negligence is not in issue in this case.  I give no weight to her evidence. 

The background

10. The event leading to the present action commenced in September 2010 when government fenced off the Defendant’s land from the highway.  As the landowner and village representative, the Defendant approached the Councillor’s office for assistance on 7 December 2010.  Miss Luk attended to his complaint on behalf of the Plaintiff.  She liaised with the District Lands Office (“DLO”) and the Tai Po District Office (“DO”).  Eventually, his complaint was rejected by the DLO.  In a letter dated 13 January 2011 (the “DLO Letter”), the DLO refused to entertain the Defendant’s complaint on the ground that the Defendant’s land is an old schedule agricultural lot, the terms of grant of which conferred no right of access or passage from the public highway and suggested the Defendant to resolve his problem of access with neighbouring landowners.  In a letter dated 20 January 2011 from the DO (the “DO Letter”), the DO replied that the complaint was a matter to be handled by the DLO.  The Plaintiff’s action in respect of this complaint was concluded on 28 January 2011.  The parties are in dispute as to whether the Defendant had been to the private office to make his complaint with the Plaintiff and whether Miss Luk had informed the Defendant of the unsuccessful outcome of his complaint and sent him a copy of the DLO Letter and DO Letter.

11. On 19 August 2011, Ms Chan had a chance meeting with the Defendant at a restaurant during which the Defendant said he had not received any documents from the Plaintiff in respect of his complaint.  Then, Miss Luk sent the Defendant another copy of the DLO Letter that afternoon (or probably on the afternoon of 25 August 2011).  The parties are in dispute as to the content of the conversation between Ms Chan and the Defendant.

12. On 10 September 2011, the Defendant telephoned Miss Luk expressing dissatisfaction over the way the Plaintiff handled his complaint and demanded a copy of the case record (盧三勝區議員個案記錄表) in respect of the processing of his complaint by the Plaintiff.  A copy of the case record was thus sent to the Defendant.  There is no dispute as to the contemporaneity and authenticity of the case record.

13. The Defendant considered the Plaintiff dishonest and incompetent in handling his complaint and published the Defamatory Letter on or about 20 September 2011 to some twenty-five addressees, including the Plaintiff.  At that time, the Plaintiff and the other two candidates for the District Council election were conducting their election campaigns.

14. On 14 October 2011, the Plaintiff, through his solicitors, demanded the Defendant to give a full and unequivocal public retraction, an apology, and an undertaking not to repeat the publication of the Offending Words.  The Defendant replied by a letter dated 17 October 2011 reiterating his stance and ignored the Plaintiff’s demand.

15. The District Council election was held in early November 2011.  There were three candidates for the vacancy.  Mr Lau won the election against the Plaintiff by a narrow margin of 320 votes.  The Plaintiff was not re-elected.

The parties’ case and the issues

16. The Plaintiff’s case is simple.  The Offending Words were defamatory of him and were untrue in fact and in substance, whether in the meanings as he understood them or in the meanings as ascribed to them by the Defendant.  Specifically, the Plaintiff says he had done what he could to help the Defendant in his complaint and Miss Luk had duly informed him of the result of his complaint by telephone and by sending him a copy of the DLO Letter and DO Letter.

17. The Defendant’s primary case is that the Offending Words bore a lesser scope of defamatory meanings from that alleged by the Plaintiff, and he seeks to justify those lesser meanings.  Failing that, he pleads fair comment and qualified privilege.  

18. In pleading justification, the Defendant bears the burden of showing, on the meanings of the Offending Words as construed by this court, they were true in fact and in substance.  His defence of justification is built on the following factual basis.  About a month after lodging his complaint with the Plaintiff, the Plaintiff solicited his support in the Township Representative election to be held on 26 January 2011. At a meeting with the Plaintiff at his private office on 20 January 2011, they reached a consensus that the Plaintiff would use his best effort to resolve the Defendant’s complaint in return for the Defendant’s support in the Township Representative election.  At that time, the Plaintiff had not given him a copy of the DLO Letter or the DO Letter.  Known to the Plaintiff, but not to the Defendant, the government had rejected his complaint.  The Defendant therefore argues that on the above fact, the Plaintiff had failed to keep his promise, was dishonest in concealing the DLO Letter and outcome of the Defendant’s complaint so as to securehis support at the Township Representative election, and was incompetent as a District Councillor.

19. Failing that, the Defendant argues that the Offending Words were comments and the comments were fair.  He bears the burden of showing there was factual basis to support his comments and that the comments were honestly held by him.  He relies also on the above facts as the factual basis for his comments.

20. And further failing that, he argues that the Offending Words were expressions of opinion made on a privileged occasion.  The Plaintiff accepts that expression of opinion about public officers and persons in authority or with responsibilities towards the public is privileged, but argues that the defence is not available to the Defendant because the publication of the Offending Words was actuated by malice.  The Defendant bears the burden of showing, insofar as the Offending Words were expressions of opinion, that there was factual basis to support the opinion.  He also relies on the same factual basis in support of his opinion.  If he succeeds, the burden will be on the Plaintiff to show that the publication was actuated by malice in that the opinion expressed in the Offending Words was not honestly held by the Defendant or was published for some dominant improper motive, namely to disparage the Plaintiff in his public office with a view to discrediting him and prejudicing him in the then upcoming District Council election in favour of his opponent, Mr Lau.

21. Except for the true meanings of the Offending Words, the other issues raised in this case are all factual.  At the heart of these factual disputes are whether there was that meeting at the private office during which the Plaintiff promised to use his best effort to resolve the Defendant’s complaint in exchange for his support at the Township Representative election; whether Miss Luk had informed the Defendant of the content of the DLO Letter and/or sent him a copy, not whether the Defendant had actually received the copy; and whether the Defendant knew Miss Luk had done so.  These factual issues are:

(1) whether the Plaintiff had promised to use his best effort to resolve the Defendant’s complaint in return for his support in the Township Representative Election;

(2) whether Miss Luk had, on behalf of the Plaintiff, timeously informed the Defendant of the contents of the DLO Letter and/or sent him a copy;

(3) whether, in the light of my finding in (1) and (2), the Plaintiff was dishonest;

(4) whether the Plaintiff was incompetent in handling the Defendant’s complaint;

(5) insofar as the Offending Words are capable of being comments, whether there was factual basis in support of the comments;

(6) if the answer to (5) is in the positive, whether the comments were honestly held by the Defendant;

(7) insofar as the Offending Words are capable of being an expression of opinion, whether there was factual basis in support of the opinion; and

(8) if the answer to (7) is in the positive, (a) whether the opinion was honestly held by the Defendant; and (b) whether the Offending Words were published for some dominant improper motive as alleged by the Plaintiff.

THE MEANINGS OF THE OFFENDING WORDS

The applicable legal principles of construction

22. The applicable legal principles for construing the meanings of allegedly defamatory words are well established.  They may be summarised as follows.

23. First, the words complained of in a libel action are to be construed in their natural and ordinary meanings, i.e. ones in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would likely understand them.  The question is what meanings would the words convey to the mind of the ordinary, reasonable, fair-minded reader[1].

24. Second, the ordinary and natural meanings of words may be either the literal meanings or the implied, inferred, or indirect meanings; or any meanings that do not require the support of extrinsic facts passing beyond the general knowledge. Meanings which are capable of being detected in the language used can be part of the ordinary and natural meanings.  The ordinary and natural meanings may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and unfettered by any strict legal rules of construction, would draw from the words[2].

25. Third, it is necessary to take into consideration, not only the actual words used, but also the context in which the words were used and the persons to whom the communications were made[3].

26. With these principles in mind, I turn to construe the Offending Words and ascertain their meanings.

The Offending Words

27. The relevant part of the Defamatory Letter reads as follows:

“ 關於上述事件 [i.e., the blockage of the Lot]，本人在2010年八月曾到本區區議員盧三勝先生求助，盧議員答應我會盡一切努力爭取我應有權益，本人一直等候盧議員佳音… 直至2011年八月二十五日，收到盧議員來信,隨信附上地政處信件一封，日期2011年一月十三日，內容和我在上述所提相同，盧議員收到地政處信件後，從未向地政處提出異議，更談不上理據力爭 [sic.] ，並將文件收藏至今年八月二十五日才將地政處副本信件轉交給我，事件拖延太久，使我錯失上訴機會，整件事本人感到非常憤怒和被騙感覺，本人質疑盧議員誠信和處事能力，本人希望各位有意參選本區區議員人仕，凡事以民為本，沽名釣譽,只會誤人誤事。”

(Translation:  “About the aforesaid matter [i.e., the blockage of the Lot], I requested the assistance of Mr Lo Sam Shing, District Councillor of this District, in August 2010. Councillor Lo promised me to give his best efforts to fight for my rights.  I waited for the good news from Councillor Lo … until 25^th August 2011, I received a letter from Councillor Lo, attaching therewith a letter of the DLO dated 13^th January 2011, the content was the same as aforementioned.  After receiving the letter from the DLO, Councillor Lo never raised any objection to the DLO, let alone to fight for my case.  He also kept the DLO Letter until 25^th August of this year, when he gave a copy to me.  The matter was delayed for too long, causing me to lose the chance to appeal.  I feel very angry and deceived about the entire matter.  I question the honesty, integrity and competence of Councillor Lo.  I hope that those who intend to enter the election of this District Council to uphold the interests of the people in the Tai Po District.  To be interested in fame and glory will only cause harm to the constituents and mess up their business.”)

The meanings contended by the parties

28. The Defendant accepts that the Offending Words are defamatory but contends that they bear a lesser scope of defamatory meanings from that alleged by the Plaintiff.  There is substantial agreement on their meanings.  The meanings as ascribed by the Plaintiff and the different meanings ascribed by the Defendant, which are in parenthesis and in italics, are as follows:

(1) the Plaintiff was dishonest and lacked integrity (failed to keep his promise to the Defendant);

(2) the Plaintiff was guilty of undue delay in his handling of (informing the Defendant of the decision of the government departments about) the Defendant’s request for assistance;

(3) the Plaintiff was incompetent and failed to discharge his duty as a District Councillor; and

(4) the Plaintiff not only failed to uphold the interest of the people in the Tai Po District, but was only interested in fame and glory, thereby causing harm to his constituency and “messing up” their business (no such meaning at all).

The meanings in ordinary print are common meanings accepted by both parties.  The meanings underlined are the meanings relied on by the Plaintiff, but disputed by the Defendant.  The meanings in parenthesis and in italics are the alternative meanings contended by the Defendant but disputed by the Plaintiff. The Defendant does not accept the fourth meaning and contends that the Offending Words do not carry that meaning at all.

29. In respect of the first meaning, the crucial words are: “誠信” in the phrase:

“本人質疑盧議員誠信和處事能力”

(Agreed translation:   “I question the honesty, integrity and competence of Councillor Lo”) 

30. According to 中華高級新詞典, 中華書局 2009 Ed, “誠信” means “誠實; 守信用”, ie honesty and keeping one’s promise.  According to Collins Cobuild English Dictionary, 1995 Ed, “integrity” refers to honesty and being firm in one’s moral principle.  The difference between the English and Chinese language of that term lies in the presence or absence of the element of morality in the term.  Since the original text is in Chinese, the meaning according to the Chinese dictionary must prevail.  Furthermore and more importantly, in the whole context of the Defamatory Letter, the Defendant was referring to his seeking assistance from the Plaintiff who “promised [the Defendant] to give his best efforts to fight for [the Defendant’s] rights”.  There is no implication or suggestion of morality or righteousness.  Thus, on a fair reading of the Defamatory Letter, I accept the first meaning as contended by the Defendant.

31. As for the second meaning, the dispute is whether the delay referred to the entire handling of the Defendant’s complaint or only to informing the Defendant of the decision of the government departments in respect of his complaint.  The relevant part of the Defamatory Letter reads:

“ 並將文件收藏至今年八月二十五日才將地政處副本信件轉交給我，事件拖延太久,使我錯失上訴機會，…”

(Agreed translation: “He also kept the DLO Letter until 25^th August of this year, when he gave a copy to me.  The matter was delayed for too long, causing me to lose the chance to appeal. …”)

The Defendant’s accusation is that the Plaintiff withheld the DLO Letter from him until 25 August 2011 when it was too late, as a result he lost his right to appeal.  The meaning contended by the Plaintiff suggests delay in the entire processing of the complaint by the Plaintiff.  However, the reference to the DLO Letter dated 13 January 2011 suggests that action had been promptly taken by the Plaintiff, albeit ineffective. There was nothing in the Defamatory Letter to suggest that the Plaintiff delayed in processing of the Defendant’s complaint.  In the proper context of the Defamatory Letter, I accept the Defendant’s contention that the delay referred to the delay in informing him of the outcome of the Plaintiff’s liaison with the government departments.

32. The Defendant accepts the third meaning as contended by the Plaintiff.

33. The Defendant disagrees with the fourth meaning contended by the Plaintiff.  The relevant part of the Defamatory Letter reads:

“ 本人希望各位有意參選本區區議員人仕，凡事以民為本，沽名釣譽，只會誤人誤事。”

(Translation: “I hope that those who intend to enter the election of this District Council to uphold the interests of the people in the Tai Po District.  To be interested in fame and glory will only cause harm to the constituents and mess up their business.”)

34. Mr Yuen, counsel for the Defendant, argued that the meaning contended by the Plaintiff was at odds with the agreed translation.  He submitted that the statement is universal truth and bears no further defamatory meaning over and above the other three meanings.  That may be the impression given by the above sentence read in isolation.  However, the Defamatory Letter must be read as a whole and construed in its proper context.  The meaning to be ascribed need not be the literal meaning only.  It may be an indirect meaning, which a reasonable reader guided not by any special knowledge but only by general knowledge and unfettered by any strict legal rules of construction, would imply or infer from the context and surrounding circumstances.  Here, the Defamatory Letter was issued amidst the campaigns by the candidates for the District Council election and the Plaintiff was running for that election.  The Defendant was criticising the Plaintiff’s competency and his failure in discharging his duty as a District Councillor.  He was referring to the Plaintiff’s delay in informing him of the government’s decision in respect of his complaint handled by the Plaintiff, which resulted in his losing the chance to appeal.  He felt, not only angry, but also deceived about the entire matter.  He was criticising in no equivocal term the competency of the Plaintiff as a District Councillor.  It was in that context, the Defendant made the above statement.  He was not giving a lesson to the addressees about the moral in life or the qualities expected of a District Councillor, but impliedly telling them that the Plaintiff was lacking in those very qualities, was only interested in fame and glory, and will only cause harm to the constituency if he was elected.  I accept the fourth meaning as ascribed by the Plaintiff.

35. Accordingly, I find the ordinary person with general knowledge and experience of worldly affairs would understand the Offending Words as carrying the following meanings:

(1) the Plaintiff was dishonest and failed to keep his promise to the Defendant;

(2) the Plaintiff was guilty of undue delay in his informing the Defendant of the decision of the government departments about the Defendant’s complaint;

(3) the Plaintiff was incompetent and failed to discharge his duty as a District Councillor; and

(4) the Plaintiff not only failed to uphold the interests of the people in the Tai Po District, but was only interested in fame and glory, thereby causing harm to his constituency and “messing up” its business.

THE FACTS

An overall view of the witnesses’ credibility

36. The outcome of this trial depends very much on my finding of fact.  Credibility of the witnesses, particularly that of the Plaintiff and the Defendant, is at the heart of this case.  I bear in mind that the test of credibility is inherent probability and consistency with contemporaneous documentary evidence[4].  The case record is an important contemporaneous document, the authenticity of which was not challenged.  The Defendant admitted that it was not a fabricated record.  I give most weight to the case record.  Where appropriate, I test the evidence of the witnesses against the case record.

37. The Plaintiff, now aged 77, was slightly disadvantaged by his age.  His evidence in chief, which was contained in his two witness statements, appeared logical.  But his evidence under cross-examination was confusing over the issue of his lobbying for support from the villagers and the Defendant in the Township Representative election.  The latter issue is an important premise on which the defence is based.  Despite the slight deficiency in his performance, in the light of the totality of the evidence, I consider him credible and accept his evidence.

38. The Defendant is seven years younger.  He had lived in the United Kingdom for about 40 years and had completed high school education.  The evidence in his witness statement was well presented.  Though he appeared to be more alert under cross-examination, on a proper analysis of his evidence and demeanour, I find him evasive as demonstrated by his professed ignorance of the District Council election in November 2011; and his evidence as to his purpose of accompanying Mr Lau in visiting Mr Shek shortly before the campaign period.  Being a village head and village representative, his evidence that back in September 2011 he had no knowledge of the then upcoming District Council election to be held in two months’ time just begs belief. 

39. The most fatal damage to his credibility is the case record, which on his own admission, is not a fabricated record.  The case record showed that Miss Luk had informed him of the DLO’s decision by telephone and sent him a copy of the DLO Letter on 13 January 2011, as soon as it was received.  However, his evidence, particularly his denial of having been informed of the progress of his complaint and the content of the DLO Letter by telephone, is directly contradicted by the case record.  One, if not the most, important building block of his case is that the Plaintiff concealed the DLO Letter from him in January 2011.  That is completely destroyed by this contemporaneous case record.  And so goes his credibility as well.

40. Another fatal damage to his honesty is that having obtained a copy of the case record, he must have read it and known that Miss Luk had sent him a copy of the DLO Letter on 13 January 2011.  Yet, with that knowledge, he published the Defamatory Letter accusing the Plaintiff of incompetence, and in particular, of concealing the DLO Letter.  The issue, as I have emphasised, is not whether the Defendant had received a copy of the DLO Letter in January 2011, but whether Miss Luk had verbally informed him of the content of the DLO Letter and/or sent him a copy.  In view of the case record, Miss Luk certainly had done both.  Having read the case record, the Defendant must have known she had.  Thus, even assuming in his favour that for some reason the copy of the DLO Letter had never reached him, he knowingly made false accusation of concealment against the Plaintiff in the Defamatory Letter.  The case record completely destroyed his case of honest belief in the truthfulness of his allegations in the Defamatory Letter.  His admission that the case record is not a fabricated record sealed his fate in this litigation.

41. In my ultimate analysis of the evidence, I find the Defendant evasive, exaggerating and dishonest.  I even find he concocted the various incidents to build up a case of the Plaintiff giving him an empty promise in exchange for his support in the Township Representative election so as to provide the factual basis to launch his various defences.  He was a totally incredible witness.  Where his evidence is at odds with the Plaintiff’s and his witnesses’ evidence, I accept the Plaintiff’s and his witnesses’ evidence and reject the Defendant’s.

42. Miss Luk was a former assistant employed by the Plaintiff, but has now left the Plaintiff’s employment.  She appeared to be the youngest of all the witnesses, less experienced in life and more timid.  She relied heavily on the case record.  She was shown to have been misled by the entry of 11 January 2011 in the case record (see paragraph 64).  But that has no impact on her honesty or the reliability of her evidence.  Apart from that little blemish, her evidence is, nevertheless, cogent, inherently credible and supported by the case record.  She has no personal interest in this litigation.  I consider her a credible witness and accept her evidence.

43. Ms Chan was a former assistant of the Plaintiff.  She is no longer in his employ.  She is a very mature woman with good working and life experience.  She had worked in a number of District Councillors’ offices before joining the Plaintiff’s.  She is knowledgeable about customary practice in the New Territories.  Her evidence is cogent and consistent.  She was firm and impressive under cross-examination. Her evidence is inherently credible.  She impressed me as a responsible and credible witness.  I accept her evidence. 

44. Mr Shek’s evidence evolved around a very small compass.  He was called by the Plaintiff to prove that the Defendant accompanied Mr Lau to visit him at the store and vouched for Mr Lau.  In his witness statement, he vigorously disputed the Defendant’s evidence that the Defendant only bought a bottle of water at his store and left without vouching for Mr Lau.  But under cross-examination, he retracted.  He was not re-examined on those issues.  I could give no weight to his evidence.

45. Mr Man’s evidence is not controversial.  I accept his evidence.

46. Ms Wong Ching purported to give expert evidence.  She has no personal knowledge in the factual issues in dispute, which are not for expert opinion, anyway.  Her opinion evidence is irrelevant. I give no weight to her evidence.

The case record

47. There is no dispute that the case record is a contemporaneous record.  The Defendant expressly and unreservedly confirmed that it is not a fabricated record.  Mr Yuen only attacked its comprehensiveness, accuracy and the interpretation of the entries therein. 

48. Mr Yuen referred to an entry made by Ms Chan at the end of page 2 which stated that a copy of the letter from the government department, meaning the DLO, was re-sent on 19 August 2011.  His criticism was that the entry was not made in chronological order. Ms Chan explained that a copy of the DLO Letter was re-sent as a result of the chance meeting she had with the Defendant on 19 August 2011.  Later, when she came to read the case record after the Defendant complained about the conduct of his case, she noticed that this event had not been entered into the record.  But by then, other later events such as the Defendant’s complaint had been entered.  Thus the entry had to be made out of sequence.  I think the criticism was frivolous. There was no dispute that the Defendant received a copy of the DLO Letter re-sent to him in August 2011.  If the case record is incomplete, it would only be to the Defendant’s advantage, as it is the Defendant who complained about inadequacy of the steps taken by the Plaintiff in attending to his complaint. 

49. In addition, I noticed that the copy of the DLO Letter was re-sent under a covering letter dated 25 August 2011.  This suggests that the date of the entry of 19 August 2011 was incorrect and Ms Chan’s recollection of that incident is unreliable.  But as there is no dispute that a copy of the DLO Letter had been re-sent and received by the Defendant, little, if any, turned on that mistake in the entry.

50. My other observation is that the heading box of the second page of the case record is misleading.  That has led to some confusion in Miss Luk’s and also the Plaintiff’s evidence that she had a meeting with the Defendant on 11 January 2011, which the Defendant denied (see paragraph 64).  That only came to be discovered by me after Miss Luk had concluded her evidence and she was not recalled.  The mistake is obvious and is resolved in favour of the Defendant.  Nothing turned on that misleading aspect either.

51. I shall deal with Mr Yuen’s interpretation point as and when it arises.  For reasons as I shall explain, I reject Mr Yuen’s interpretation of the entries in the case record.

52. In conclusion, I find that the case record is a contemporaneous, authentic and accurate record.  Though some trivial events were not entered and the date in respect of two entries might be wrong, the deficiencies are of little significance and do not affect its overall reliability. Three entries are of particular importance.  First, the entry on 13 January 2011 showed that Miss Luk had verbally informed the Defendant of the content of the DLO Letter and sent him a copy.  Second, the entry on 28 January 2011 showed that Miss Luk had sent a copy of the DO Letter to the Defendant.  The Defendant denied that he had been informed by Miss Luk of the decision of the DLO or had received a copy of the DLO Letter or the DO Letter.  But, as there is no dispute as to the contemporaneity and authenticity of the case record, I am bound to accept Miss Luk’s evidence and the correctness of the above entries and reject the Defendant’s evidence.  This is a very important piece of evidence.  As my further finding of fact shows, it supports the Plaintiff’s case, and damages the Defendant’s credibility and honesty.  It even undermines the Defendant’s defence.  See paragraphs 39 to 40 above.

Lodging of the complaint: the alleged first meeting at the private office

53. According to the Defendant, he lodged his complaint at the Councillor’s office towards the end of 2010, which according to the case record was 7 December 2010.  He was received by the Plaintiff’s assistant, who probably was Miss Luk.  He told her the purpose of his visit and that he wished to see the Plaintiff.  The Plaintiff was not at the office.  The assistant was not sure when the Plaintiff would return and suggested him to try to see the Plaintiff at his private office nearby at 4 pm.  The Defendant reached the private office at about 3:30 pm and saw the Plaintiff working on his computer.  He thought the Plaintiff was trading shares on-line.  He waited until 4 pm when the Plaintiff interviewed him.  After he had lodged his complaint, the Plaintiff told him to return home and wait for news. 

54. According to Miss Luk, she attended to the Defendant on 7 December 2010.  The Defendant requested to see the Plaintiff, but the Plaintiff was not in the office.  She took down the particulars of the complaint and the Defendant left.  While she agreed under cross-examination that the Plaintiff would arrange meeting the public at his private office, she was adamant that she had not suggested the Defendant to go to there later that afternoon.  She said she would ascertain the views of the Plaintiff first. Indeed, she sought the Plaintiff’s instruction on the following day.  There was no mention in the case record of her sending the Defendant to see the Plaintiff at the private office.  There was no suggestion that such was the usual practice if the Plaintiff was at the private office.  Given the way in which the Plaintiff used the private office, it would not have been appropriate for Miss Luk to send the Defendant there without first seeking the Plaintiff’s permission.  Miss Luk’s evidence is supported by the entry of 7 December 2010 in the case record. 

55. According to the Plaintiff, he knew the Defendant since childhood, but they were just acquaintances.  In about December 2010, the Defendant telephoned him to seek his assistance.  He told the Defendant to file his case with Miss Luk at his Councillor’s office and he told Miss Luk to follow up.  After the Defendant had filed his complaint, Miss Luk called him and then reported to him with Ms Chan at the private office.  The Plaintiff denied receiving the complaint from the Defendant at his private office.  He said that the private office was used for meeting his fellow villagers and for recreational purposes such as playing mahjon with his friends. He used his Councillor’s office for official business. 

56. Whether there was another meeting between the Plaintiff and the Defendant at the private office is of little or no significance. Miss Luk unequivocally denied telling the Defendant to see the Plaintiff at the private office.  The Plaintiff also unequivocally denied seeing the Defendant there. However, it is Mr Yuen’s suggestion that the Plaintiff was at pains to distance himself from his private office because it was at the private office where he solicited the Defendant’s support in Township Representative election and promised to resolve his complaint.  He argued that the Defendant could not have been able to give the address and a description of the private office if he had not been advised by Miss Luk to go there and Miss Luk’s evidence that the Plaintiff would arrange to meet members of the public there gave support to the Defendant’s evidence.

57. As the photographs show, the private office was located at the mezzanine floor of an old and mainly residential building.  It did not have the usual appearance of an office where business was transacted.  It was more like a hide-out where one works in private or takes a rest, or, as the Plaintiff said, it was used for meeting and recreational purposes.  The Plaintiff might have occasionally arranged to meet members of the public or his assistants there.  The Plaintiff and the Defendant were both involved in affairs of the villagers in Shuen Wan.  The Defendant could have been to the private office in connection with such affairs before, though the Plaintiff said under cross-examination that he could not recall whether the Defendant had been there before or not.  I can place little weight on the Defendant’s knowledge of the address and description of the private office. 

58. On the other hand, Miss Luk was adamant that she had not told the Defendant to go to the private office and she gave a credible explanation why she had not.  The Plaintiff also denied he had a meeting with the Defendant there.  But his evidence is at odds with Miss Luk’s in one minor aspect.  According to the Plaintiff, Miss Luk together with Ms Chan reported to him about the Defendant’s complaint at the private office immediately that day; whereas Miss Luk said that she reported to the Plaintiff on the following day.  Miss Luk’s evidence was based on the case record.  If an event was not recorded in the case record, she might not have recollection.  There was no mention in the case record about Miss Luk reporting the Defendant’s complaint to the Plaintiff on 7 December 2010 or referring the Defendant to see the Plaintiff at his private office.  This aspect of Miss Luk’s evidence has to be treated with some caution.  The Plaintiff’s evidence was based on recollection.  He was able to recall the telephone call from the Defendant previously about this complaint.  Miss Luk might have considered the Defendant’s complaint important as the Plaintiff had told her to follow up and the Defendant had indicated that he wished to meet with the Plaintiff.  Hence, it was not unlikely that she considered the complaint important and reported to the Plaintiff immediately.  Then she received or sought the Plaintiff’s instruction on the following day.  These possibilities have not been explored in evidence.  On the issue whether Miss Luk had reported the complaint to the Plaintiff that afternoon, I prefer the Plaintiff’s evidence which was based on recollection.  He probably had better recollection of this incident than Miss Luk.  But nothing important turned on that minor discrepancy. 

59. On the issue of whether the Defendant had a meeting with the Plaintiff that afternoon, I accept the Plaintiff’s and Miss Luk’s evidence.  Miss Luk has left the employment of the Plaintiff.  There is no reason or motive for her to lie about not having referred the Defendant to the private office.  There was nothing to suggest that the Plaintiff had colluded with her.  If they had, the little discrepancy between their evidence about her reporting to the Plaintiff that afternoon would not have surfaced.  Given the nature of her evidence, I have no reason to doubt that she had not told the Defendant to go the private office that afternoon.  I accept the Plaintiff’s and Miss Luk’s evidence and reject the Defendant’s.  I find this alleged meeting at the private office was a concoction of the Defendant. 

The processing of the Defendant’s complaint by the Plaintiff

60. On the following day, Miss Luk sought directions from the Plaintiff as to how to process the Defendant’s complaint.  She told the Plaintiff that the Defendant wanted to see him, but the Plaintiff said he would consider seeing the Defendant after enquiries have been made with the government departments.  She carried out the instructions given to her by the Plaintiff.  She recorded the Plaintiff’s instructions, including to make enquiries from the DLO and the DO, and the telephone number of the new liaison officer of the DO.  She made enquiry with that officer who referred her to enquire from the DLO and gave her the telephone number of a Mr Leung of the DLO.  Miss Luk then enquired from Mr Leung who suggested her to provide photographs of the site.  Her evidence is supported by the entry of 8 December 2010 in the case record.

61. On 9 December 2010, Miss Luk made an entry showing that the Plaintiff instructed her to make appointment with the Defendant for taking photographs of the Defendant’s land.  Miss Luk also made an entry that she had made an appointment to visit the Defendant at his address in Wong Yue Tan at 3:30 pm on the same day.

62. According to the Defendant, about a week after lodging the complaint, two female assistants of the Plaintiff, who could be no one else but Miss Luk and Ms Chan, telephoned him to make arrangement for a site visit. This aspect of their evidence tallied.

63. There are five entries between 10 and 30 December 2010, which showed that Miss Luk diligently followed up with the Defendant’s complaint.  She went to inspect the Defendant’s land; discussed with Mr Leung of the DLO and later with Mr Yeung; and wrote to the DLO.  On 30 December 2010, she telephoned the Defendant and informed him that the DLO had received the Defendant’s complaint. 

64. The entry on 11 January 2011 showed that Miss Luk was verbally informed by the DLO that as the Defendant’s land is an old schedule agricultural lot government had no obligation to provide access from the highway, and that she should liaise with the DO or the Highways Department. Miss Luk said that she then sought instruction from the Plaintiff and was told to write to the DO and the Highways Department for assistance.  According to the entry on 13 January 2011 in the case record, Miss Luk wrote to the DO, with a copy of the letter to the Highways Department, seeking their assistance.  That letter was dated 12 January 2011.  Probably, Miss Luk had issued the letter before making the entry.  This minor inaccuracy in the case record has no serious impact on the reliability of the case record and Miss Luk’s evidence.

65. During cross-examination, Miss Luk was referred to the heading box on page 2 of the case record which suggested that the Defendant attended the Councillor’s office in person on 11 January 2011.  Referring to that box, Miss Luk said she had a meeting with the Defendant that day during which she informed him the progress of his complaint.  But she could not recall any particulars of that meeting or explain why such meeting was not recorded in the case record.  According to the Defendant there was no meeting on that day.  The heading box appeared to have replicated, except for the date, the particulars in the heading box on page 1 which stated that the Defendant lodged a complaint at the office in person and the particulars of the complaint.  Obviously, the event which occurred on 11 January 2011 was only the receipt of the reply from the DLO.  Miss Luk was misled by the heading box to say there was a meeting of which she could not recall any particulars but speculated that the Defendant was told of the progress.  I believe, the truth was that there was no meeting with the Defendant on that day.  Miss Luk was honestly mistaken, but that mistake has no impact on her honesty. 

66. Similarly, base on the case record, the Plaintiff said in his witness statement that Miss Luk had a meeting with the Defendant on that day.  The Plaintiff’s solicitors likewise asserted in their letter to the Defendant dated 14 October 2011 that the Plaintiff had passed on a copy of the DLO Letter to the Defendant at that meeting.  They were all acting under the same misapprehension.  It was not the Plaintiff’s evidence that he was at the meeting.  Obviously, his solicitors were not at the meeting either. 

67. The entries on 13 January 2011 read as follows:

“再去信民政處及路政署跟進

收到地政書面回覆

致電李先生告知情況及寄副本予他”

These three entries showed on that day Miss Luk received the DLO Letter; wrote to the DO and the Highways Department for follow-up (but the letters were dated 12 January 2011, see paragraph 64); telephoned the Defendant and informed him of the decision of the DLO; and sent him a copy of the DLO Letter by post.  The Defendant denied having received the said telephone call or a copy of the DLO Letter.   

68. Here, Mr Yuen raised a point of construction of the entries in the case record.  Under cross-examination, Miss Luk admitted that she would add the word “已” to a verb to indicate it was in the past tense.  However, Mr Yuen noted that the word “已” was missing in the entry on 13 January 2011 relating to her telephoning the Defendant and sending him a copy of the DLO Letter.  Miss Luk agreed with counsel that it was possible that the entry was a record of the instructions given by the Plaintiff, but she did not exclude the possibility that it was a record of action taken. 

69. In construing the three entries, the case record including the three entries must be read as a whole.  In reading the case record, as with reading any Chinese document, it must be borne in mind that the use of the word “已” to denote past tense is not an invariable practice in the Chinese language.  In addition, I also note from the case record that the Plaintiff’s instructions were always recorded as “盧先生表示” (Mr Lo indicated).  With these in mind, I now turn to construe the third entry.

70. In respect of the first entry, there is no doubt that Miss Luk had written to the DO and the Highways Department.  The letter was actually dated a day earlier.  The word “已” was not used, suggesting that Miss Luk did not invariably use that word to denote past tense.  The second entry was about receipt of the DLO Letter.  This entry could not have been a record of the Plaintiff’s instruction.  The word “已” was not used.  However, it can be argued that the words “收到” (received) suggest a completed action in the past.  In fact, there is no dispute that the DLO Letter was received earlier that day.  I accept the absence of the word “已” in the second entry was neutral.  In respect of the third entry, as Miss Luk said under cross-examination, there could be two possibilities: namely it was a record of the Plaintiff’s instruction or a record of the action taken.  Reading the case record as a whole, it is unlikely that the entries on 13 January 2011 were a record of instructions given by the Plaintiff.  It is more likely than not that they are a record of the events which occurred or actions taken on that day.  It is most likely that the omission of the word “已” in the third entry was accidental and not intentional and has no significance.  Mr Yuen’s argument is just semantic. 

71. Putting aside this fine point of construction, if one looks at the evidence with realism, one would reach the same conclusion.  If the third entry was a record of the instruction given by the Plaintiff, one wonders why Miss Luk would have just recorded the instruction and did nothing pursuant to that instruction.  She must have followed that instruction and sent the Defendant a copy of the DLO Letter.  If the entry was a record of the action taken, as I would construe it, Miss Luk clearly had sent the Defendant a copy.  Whatever the construction to be put on that entry, the result is the same.  Despite the little doubt expressed by Miss Luk of her own evidence, it is beyond dispute that she had not only sent the Defendant a copy of the DLO Letter but had also verbally informed him over the telephone of the content of that letter.  This finding of fact almost conclusively determined all the issues in dispute in this litigation.

72. The entry on 25 January 2011 showed that Miss Luk received a reply from the DO saying that the complaint had been referred to the DLO for follow up.  It should be noted that it was around this time, or probably a little earlier, that according to the Defendant, the Plaintiff had a meeting with him at the private office and solicited his support at the Township Representative election.  The Defendant’s allegation is denied by the Plaintiff.  For reason as I shall explain when I come to analyse the evidence about that meeting, I do not believe the Defendant’s allegation.

73. On 26 January 2011, Miss Luk telephoned Mr Yeung of the DLO about the DO Letter.  Mr Yeung told her that the DLO had already replied to her via the DLO Letter of 13 January 2011.  That was the day of the Township Representative election.

74. The entry on 28 January 2011 showed that Miss Luk forwarded a copy of the DO Letter to the Defendant.  Apparently, at that stage, Miss Luk considered all that could be done had been done and the case was closed.  The Defendant denied receiving that letter.  Anyway, that letter has no significance in this action.

75. I accept Miss Luk’s evidence.  Her evidence is supported by the contemporaneous case record the authenticity of which is not in dispute.

The chance meeting between the Defendant and Ms Chan in August 2011

76. There was no further progress in the Defendant’s complaint for seven months.  On 25 August 2011, Ms Chan happened to see the Defendant in a restaurant.  She started a casual conversation with him asking if he had returned from the United Kingdom and the Defendant answered “yes”.  Then she asked if he had received copies of the letters from the government departments sent to him by the Councillor’s office.  The Defendant replied that he had not.  Ms Chan then offered to re-send copies to him.  According to Ms Chan, Miss Luk re-sent another copy of the DLO Letter to the Defendant under a covering letter that afternoon.  It was unexplained why the covering letter was dated 25 August 2011, while according to Ms Chan she had the chance meeting with the Defendant on 19 August 2011 and made a post-entry in the case record of re-sending the DLO Letter on that same day.  Presumably, she was mistaken about the date when the DLO Letter was re-sent, as it was Miss Luk who re-sent the copy of the letter.  Anyway, nothing significant turned on that mistake.

77. There is no dispute that there was that chance meeting between Ms Chan and the Defendant and the subject matter of their conversation.  The Defendant disputes the content of the conversation. According to the Defendant, after replying that he had returned from the United Kingdom, he immediately asked Ms Chan about the progress of his complaint and Ms Chan replied:

“已經收到了地政處D信，好似要你地夾埋其他人一齊做嘢喎”

(Translation:   “the Councillor’s office had received a letter from DLO and it seemed that you and others had to do something together.”)

78. On an objective view, both accounts of the conversation are possible.  On either version, it was just a casual conversation.  Ms Chan’s mentioning of the DLO Letter and the Defendant’s asking about the progress of his complaint were just convenient common topics.  However, the two conversations give slightly different colours to the parties’ case.  Ms Chan’s version is neutral and consistent with both the Plaintiff’s case as with the Defendant’s case.  The Defendant’s version is also neutral but more consistent with the Defendant’s case. 

79. On the Defendant’s case, at the time he had not received a copy of the DLO Letter or been verbally advised of the outcome of his complaint.  If so, it would have been reasonable for him to ask Ms Chan about the progress and then Ms Chan proffered the advice given by the DLO in that letter.  He could not have made up Ms Chan’s conversation as he alleged it, mildly suggesting that it was Ms Chan who accidentally let the secret out.  But, if for eight months the Defendant had heard nothing about his complaint and all out the blues Ms Chan told him that the DLO advised that he should do something together with other people to resolve his problem about access to the his land, he must be very eager to find out, at least in gist, what that something was.  Even according to his own supplemental witness statement, he did not understand what Ms Chan meant there and then.  But he asked no further questions but simply asked for a copy of the DLO Letter.  He explained that he considered it best to find that out from the letter.  That is one person’s words against another. But his explanation does not seem to be convincing.  

80. The truth can be easily ascertained by testing the evidence of Miss Luk, Ms Chan and the Defendant against the contemporaneous case record.  According to Miss Luk and the case record, Miss Luk had informed the Defendant of the content of the DLO Letter by telephone and sent him a copy on 13 January 2011.  The truthfulness of this aspect of Miss Luk’s evidence cannot be doubted because the Defendant admitted that the case record was not a fabricated record.  If subsequent to that telephone conversation, the Defendant had not received a copy of the DLO Letter, one wonders why for the past eight months he never raised that with Miss Luk.  The inference is that he must have received the copy of the DLO Letter which undoubtedly had been sent to him by post.  Thus, at the time of the meeting in August 2011, the Defendant knew that the DLO had rejected his complaint and suggested him to liaise with the neighbouring landowners to resolve his problem about access.  If so, there was no reason why he would have asked Ms Chan about the progress of his complaint.  It was natural for Ms Chan to start the conversation in the way she described.  The Defendant might have answered Ms Chan’s question in the negative out of his dissatisfaction with the outcome of his complaint.  I accept Ms Chan’s version of the conversation more probable.

81. The dispute about the content of the conversation has no bearing in this action.  It was specifically raised by the Defendant in his supplemental witness statement to bring out his suspicion arising from what he alleged was said by Ms Chan.  As there can be no doubt that he had at least been informed by Miss Luk of the content of the DLO Letter on 13 January 2011, the Defendant was, as Mr Fung, counsel for the Plaintiff, suggested, just acting.  His dispute about the content of the conversation backfired on him.  His evidence of Ms Chan telling him that he and others had to do something together supported Miss Luk’s evidence that she had informed him of the content of the DLO Letter and had received a copy.  Like his dispute about the first meeting with the Plaintiff at the private office, this is just another example of his attempt to seize on any opportunity to concoct a case against the Plaintiff.  It damaged his credibility.  I reject his evidence and accept Ms Chan’s version of the conversation.

The Defendant’s alleged concealment and dishonesty

82. According to the Defendant, upon reading the copy of the DLO Letter re-sent to him, he was confused.  On 27 August 2011, he telephoned Miss Luk and asked for a copy of the case record.  A copy of the case record showing the events up to and including 28 January 2011 was sent to him. Upon reading the case record and the DLO Letter, according to the Defendant, he realised that the Plaintiff had withheld the DLO Letter from him; failed to timeously disclose the decision of the DLO to him; and dishonestly made an empty promise of helping him to resolve his complaint, knowing that the DLO had already rejected his complaint.  He said he was very angry and felt he was deceived. 

83. On 10 September 2011, which was two weeks later, he telephoned Miss Luk expressing his dissatisfaction with the DLO Letter and said he was considering complaining against the Plaintiff.  Miss Luk reported the incident to the Plaintiff on 12 September 2011.  These events were all entered into the case record.

84. The Defendant said he doubted the Plaintiff’s honesty and his intention to keep his promise.  He considered the Plaintiff had failed in his duty and doubted his ability as a District Councillor.  Hence, on 20 September 2011, he issued the Defamatory Letter with a copy to the Plaintiff.  These allegations will be explored in greater depth when considering the Defendant’s defences. 

Soliciting of the Defendant’s support and the Plaintiff’s promise

85. I now backtrack to mid January 2011 when the Defendant’s complaint was still in the course of being processed by the Plaintiff.  It is the Defendant’s case that between 15 and 18 January 2011, Mr Cheung Kau (“Mr Cheung”) telephoned and then visited him at his home to enlist his support for the Plaintiff in the then Township Representative election on 26 January 2011.  Mr Cheung is a very senior villager, though not a village representative at that time.  The Plaintiff had known Mr Cheung for a long time and treated him as his uncle.  He admitted seeking support from Mr Cheung and expected Mr Cheung would lobby to village representatives for him.  There were only 23 village representatives who were entitled to vote at the Township Representative election.

86. According to the Defendant, subsequently the Plaintiff telephoned him on or about 20 January 2011, and said he had no confidence winning the Township Representative election as he had a very strong opponent.  He requested the Defendant to support him at the election so that he could automatically become an executive member of the Tai Po Rural Committee.  He invited the Defendant to have a discussion with him at his private office.  Then the Defendant met with the Plaintiff at the private office.  During that meeting, the Plaintiff told him that some overseas villagers of Shuen Wan had complained to the Independent Commission Against Corruption (“ICAC”) about his purchasing air tickets and meals for the villagers to return to Hong Kong to vote for him.  The Plaintiff also showed him some documents from the ICAC.  The Defendant was puzzled by what the Plaintiff did.  The Plaintiff also told him that he knew some government officials and other District Council members and promised to try his best to resolve his complaint of blockage of his land.  The Plaintiff suggested that they would mutually benefit if the Defendant would vote for him.  The Defendant had a strong feeling that if he did not vote for the Plaintiff at that election, the Plaintiff would not deal with his complaint.  He felt helpless and agreed to vote for the Plaintiff.  Then on 24 January 2011, Ms Chan delivered two boxes of pomeloes to his home saying that they were gifts from the Plaintiff.  The Defendant took the pomeloes as the Plaintiff’s gesture of thanks for his support at the Township Representative election.  Subsequently, he voted for the Plaintiff at the election and the Plaintiff won by a landslide of nine to five.

87. The Plaintiff admitted seeking the Defendant’s support for the Township Representative election, but under totally different circumstances.  He denied having the telephone conversation with the Defendant on or about 20 January 2011, the meeting at the private office, and the conversation and the promise made thereat.  In his witness statement, he said he had canvassed the Defendant’s support when he met the Defendant at the Rural Representatives Executive Committee meeting on or around 20 January 2011, but the Defendant declined saying that he was too old for the job.  He then said although he rang the villagers for their support, presumably he meant subsequently, he did not ring the Defendant in view of that encounter. The Plaintiff’s witness statement is confusing in that at one stage he said he canvassed the Defendant’s support, but at another stage he said he did not.  His witness statement is also confusing in another respect in that it suggested that the Plaintiff met the Defendant at the rural representatives committee meeting.  He clarified that in his supplemental witness statement by saying that he met the Defendant when he went to the meeting, not that he actually met the Defendant at the meeting as the Defendant was not a member of the executive committee.  

88. Against this background of confusion, it was suggested to the Plaintiff during cross-examination that he met the Defendant in a meeting on 20 January 2011 and sought his support.  The Plaintiff denied saying that was not what he said in his witness statements.  Mr Yuen criticised the Plaintiff for retracting from his witness statement.  With respect, there were two questions asked of the Plaintiff: (1) whether he met the Defendant at the meeting; and (2) whether at the meeting he canvassed the Defendant’s support.  Given the state of confusion in the Plaintiff’s witness statement, it is not clear what his denial was directed at.  If the denial was directed at the first question, it was consistent with the clarification he gave in the supplemental witness statement that he did not meet the Defendant at the executive committee meeting.  If the denial was directed at the second question, it was also consistent with his supplemental witness statement in that he did not canvass the Defendant’s support at that meeting, but he did so when he met the Defendant on the occasion he went to the meeting.  The confusion created by his witness statement might have given rise to Mr Yuen’s criticism.  But, in the circumstances, it would not be right to say that the Plaintiff was retracting from his witness statement.

89. The Defendant also disputed the Plaintiff’s evidence that the Plaintiff had canvassed his support at or on the occasion of that meeting, and that he declined saying that the Plaintiff was too old.  He said he would not have dared to say so because most of the members of the executive committee were seniors at very advanced age.  But there was nothing in the Plaintiff’s evidence to suggest that he was canvassing the Defendant’s support openly before the members of the executive committee.

90. Then, Mr Yuen referred to the confusion in the Plaintiff’s evidence about lobbying for support from the villagers and other village representatives.  The Plaintiff said in his witness statement that he rang the villagers for their support.  When it was suggested to him under cross-examination that the villagers had no right to vote, he said he called them in the hope that they would in turn lobby their village representatives to vote for him.  Mr Yuen submitted that the Plaintiff’s evidence was convoluted and he must have solicited the Defendant’s support.  The Plaintiff’s evidence might appear convoluted.  But obviously, that was how things worked in Shuen Wan.  The Plaintiff spoke to his old uncle and friend, Mr Cheung for support.  Then, on the Defendant’s own evidence, Mr Cheung attempted to enlist his support.  The Plaintiff did not dispute that he had sought the Defendant’s support.  His evidence is that having been declined by the Defendant once, he turned to others.  He said he did not really need the Defendant’s support because he was invited by some village representatives to take up the office as no one was keen for the job and indeed he won by a landslide.  When he telephoned the villagers for their support, he was being diplomatic and polite to the people whom he would represent.  While I agree that his evidence might appear confusing, but properly understood, I think he was telling the truth.

91. Next, the Defendant alleged that the pomeloes were the Plaintiff’s gesture of thanks for his support at the Township Representative election.  He said that he had never received such or other gifts from the Plaintiff before.  This allegation was to reinforce his case about the promise made by the Plaintiff at the meeting in the private office.

92. The Plaintiff’s evidence is that the pomeloes were just customary gifts for the Chinese New Year and had nothing to do with the promise as alleged by the Defendant.  Ms Chan, who had worked for various District Councillors in the past ten years, said it is customary in the New Territories for people holding such public office to send fruits, calendars, or other little gifts to village representatives, village heads or elders during the Chinese New Year or major festivals.  On the day in question, she was instructed by the Plaintiff to distribute pomeloes to various recipients including the Defendant.  She had a van loaded with boxes of pomeloes to deliver.  She and a male worker delivered two boxes of six pomeloes each to the Defendant at his home.  The Defendant received them without asking what the pomeloes were for. 

93. The Defendant disputed Ms Chan’s evidence of customary practice.  Ms Chan explained that it was possible that the Defendant had never received such gifts before because that was the first year when he was elected village head and at the time of distribution of the pomeloes he was the village head designate.  On that part of Ms Chan’s evidence which was not challenged, she had a lot of pomeloes to deliver and to many people that day. The gift was more consistent with the performance of the custom as she suggested than with a gesture of thanking the Defendant for his support.  The Defendant received the pomeloes, asked no questions and distributed them to his brothers and sisters within the t’ong as the Plaintiff expected.  He must have known they were customary gifts for the Chinese new year for him to distribute.  The twelve pomeloes were not of much value.  They could not be any meaningful reward for a vote which the recipient would otherwise not have cast. I have no doubt about Ms Chan’s credibility and the reliability of her evidence.  The Defendant was not honestly mistaken about the purpose of the gift or was paranoia, but was seizing every opportunity to build a case of the Plaintiff soliciting his support at the Township Representative election in exchange for a promise to resolve his complaint, which never existed.  

94. I accept the Plaintiff’s and Ms Chan’s evidence and reject the Defendant’s evidence that the Plaintiff had a meeting with him in the private office on 20 January 2011 during which the Plaintiff promised to use his best effort to resolve the Defendant’s complaint in exchange for the Defendant’s support in the Township Representative election.  That alleged meeting was just a concoction of the Defendant.

The Defendant’s and Mr Lau’s visit to Mr Shek’s store

95. It is common ground that between the end of August and mid September 2011 the Defendant and Mr Lau visited Mr Shek at his store.  The Defendant and Mr Lau said that the visit took place on 27 August 2011 before nomination of candidates for the election.  Mr Shek said that the visit took place in mid September 2011.

96. According to the Defendant, Mr Lau requested the Defendant to accompany him to visit Mr Shek.  He understood that by accompanying Mr Lau on the visit, he was giving Mr Lau confidence.  He said that after making some introductory remarks, he went to buy a bottle of water from a woman staff of the store.  He overheard Mr Shek saying that Mr Shek would support the Plaintiff but not Mr Lau.  Then he left to visit his sick friend while Mr Lau continued chatting with Mr Shek.  According to Mr Lau, he had not made up his mind to run for the election at that stage.  He was only testing the waters and exchanging views with Mr Shek. 

97. The gist of Mr Shek’s witness statement and supplemental witness statement, which is treated as his evidence in chief, is that the three of them had a chat at his store during which Mr Lau asked who he would vote for and he replied that he would vote for the Plaintiff.  Then, the Defendant interposed and suggested that the chance should be given to the younger generation, while looking at Mr Lau.  The Defendant also criticised the Plaintiff’s lack of contribution during his eight years’ service and commented that the villagers need someone more energetic and pro-active.  He denied that the Defendant bought a bottle of water from his staff and left.  He said he had no woman staff at the store but was only assisted by his wife.  However, under cross-examination, Mr Shek agreed that the Defendant bought a bottle of water and left, though he insisted that the Defendant had vouched for Mr Lau being younger and more energetic and criticised the Plaintiff.  He was not re-examined on those issues.  I consider I am bound by his answers under cross-examination which contradicted his evidence in chief.  I reject his evidence as ambiguous and unreliable. 

98. However, even on the basis of the Defendant’s and Mr Lau’s evidence, that visit was not without significance.  The Defendant was very evasive when cross-examined as to his purpose of accompanying Mr Lau on the visit.  He said that his purpose was just to accompany a friend.  Though Mr Lau said that he had not made a firm decision to run for the election, his purpose of the visit had much to do with his intention to run for the election. On the Defendant’s own admission, he was giving confidence to Mr Lau by accompanying him on the visit and he knew the purpose of the visit was to canvass for votes.  I think it was more than that. Being an indigenous villager and village head himself, the Defendant must appreciate that by accompanying Mr Lau on the visit promoting his election policies, he was showing open support for Mr Lau.  Clearly, his intention was to support Mr Lau at the election.  He was being evasive.

99. Mr Lau’s evidence evolved around a very small compass.  He was called by the Defendant to contradict the Plaintiff’s evidence that the Defendant was supporting Mr Lau in the District Councillor’s election so as to dispel the Plaintiff’s further suggestion that the Defendant was acting with an ulterior motive of prejudicing him at the election.  Unfortunately for the Defendant, the visit and his own evidence clearly demonstrated his intention to support Mr Lau at the District Councillor’s election.

JUSTIFICATION

100. Defamatory allegations are serious allegations. To invoke the defence of justification, the burden lies on the Defendant to prove by cogent evidence that the defamatory meanings of the Offending Words are true in fact and in substance[5].

101. The defamatory meanings of the Offending Words are set out in paragraph 34.  The Defendant does not dispute that in those meanings the Offending Words were defamatory of the Plaintiff.  He relies on the use of the words “feel”, “hope” and “doubt” as evidence of his expressions of comment and opinion and argues that such comment and opinion is justified as representing a true state of affairs as disclosed by the facts.  He relies on the following matters.  He has to prove all those matters are true.  If he should fail in anyone of them, the defence fails.

Dishonesty

102. The Defendant relies on the alleged meeting he had with the Plaintiff on 20 January 2011 at the private office during which the Plaintiff promised to use his best efforts to resolve his complaint in exchange for his support in the Township Representative election.  The basic premise of the Defendant’s allegation of dishonesty is that the Plaintiff knew that his complaint had been rejected by the DLO, but nevertheless concealed it in order to secure his support in the Township Representative election and took advantage of the misplaced trust he had on the Plaintiff.

103. On the issue of concealment, the Defendant said he was never informed of the outcome of his complaint or given a copy of the DLO Letter.  On the basis of his admission that the case record was authentic and not fabricated, it is beyond dispute that Miss Luk had informed him of the content of the DLO Letter by telephone and sent him a copy on 13 January 2011.  If he had not received the copy within a reasonable time thereafter, he must have chased Miss Luk for a copy, but he never did and never even mentioned it until eight months later at the chance meeting with Ms Chan and only when the topic of the receipt of the DLO Letter was raised by Ms Chan.  I do not believe in his evidence (see paragraphs 79-80).  It is also too much of a coincidence that both the DLO Letter and DO Letter which had been posted to him were not received by him, whereas the copy of DLO Letter re-sent on 25 August 2011 and a copy of case record sent to him in September 2011 were received by him.  

104. But even if he had not received a copy of the DLO Letter in January 2011, it would not improve his case.  On the question of the Plaintiff’s dishonesty or concealment of the decision of the DLO, the issue is not whether the Defendant had received a copy of the DLO Letter, but whether Miss Luk had informed him of the content of the letter or had sent him a copy. On the incontrovertible evidence, she had done both.  There is absolutely no factual basis to justify an allegation of dishonesty or concealment against the Plaintiff.

105. The Defendant incurred considerable effort in making up a case of dishonesty against the Plaintiff.  First, he alleged concealment of the DLO Letter.  Second, he introduced the private office as the place where he had his first meeting with the Plaintiff when he lodged his complaint.  The dispute as to whether there was such a meeting and where it was held is quite unnecessary, save to lay the foundation of the second meeting on 20 January 2011.  Third, he described the second meeting at the private office where the Plaintiff sought his support at the Township Representative election.  It was at that meeting, he alleged, that the Plaintiff dishonestly promised to fight for him knowing that his complaint had been rejected by the DLO.  Fourth, to further reinforce his case, he alleged that the pomeloes were gifts by the Plaintiff as an appreciation for his supporting him at the Township Representative election.  It is on these building blocks that he made up his case of dishonesty against the Plaintiff.  For reasons as I have explained, I reject his evidence on all these issues.  I find that the Defendant’s case was concocted.  There were no concealment and meetings at the private office.  The alleged promise was a concoction.  This aspect of the defence of justification collapsed.

106. Even if I were to come to an otherwise conclusion on the facts, the Defendant would still fail to prove dishonesty. The Defendant’s case is that the promise was made on 20 January 2011 when the Plaintiff had received the DLO Letter of 13 January 2011.  However, the undisputed fact was that at that time the Plaintiff was still pursuing the complaint on his behalf.  On that day, he instructed Miss Luk to follow up with the DO and the Highways Office.  Miss Luk wrote to those offices enclosing photographs of the Defendant’s land and the highway.  The Plaintiff had not put a stop to his action prior to the alleged meeting.  On 20 or even up to 25 January 2011, he was still waiting for replies from the DO and Highways Department.  Thus, even if there were such a meeting and promise made on 20 January 2011, the Plaintiff could not have been dishonest in promising to pursue the complaint for the Defendant for he must be still intending to do what he could.  Even on 25 January 2011 when the Plaintiff received the DO Letter, Miss Luk was still following up with the DLO in the light of that Letter.  On any view of the evidence, the Defendant has failed to justify his allegation of dishonesty.

Failure to keep promise, incompetence, undue delay and failure to discharge duty

107. The Defendant attempts to justify his allegation of the Plaintiff’s failure to keep his promise and incompetence etc by arguing that by failing to raise any objection to or follow-up with the DLO Letter, the Plaintiff broke his promise made in December 2010 and on 20 January 2011 to use his best efforts to fight for the Defendant.  First, there is no evidence of any such promise made to the Defendant when he made the complaint on 7 December 2010.  Second, on the facts, I reject the Defendant’s evidence that such promise was made on 20 January 2011. 

108. Even if such promise had been made, it has been fulfilled. The Plaintiff, through his staff, had taken prompt actions to handle the Defendant’s complaint.  Miss Luk promptly arranged a site visit, took photographs of the Defendant’s land and promptly liaised with the relevant government departments.  She had taken all possible steps with the government departments concerned.  The Government, or the DLO, had no obligation under the terms of the Crown lease to provide access to the Defendant’s land from the highway.  In five weeks, she did all that could be done in relation to the complaint.  On 13 January 2011, she informed the Defendant of the decision of the DLO and sent him a copy of the DLO Letter by post.  On 28 January 2011, she also sent a copy of the DO Letter to the Defendant, indicating the position of DO.  The only outstanding government department to pursue was perhaps the Highways Department.  That department did not respond.  But given the DLO’s position, it was most likely that the Highways Department would find it unnecessary to provide access to the Defendant’s land.  Any further effort will be futile.

109. It was suggested to the Plaintiff that he could have liaised with the adjacent landowners on behalf of the Defendant to obtain access through their land.  I think that would be expected too much from any District Councillor.  As explained by the Plaintiff, there were so many different lots of land and landowners involved.  They were unknown to the Plaintiff.  After all, the Defendant’s complaint was about blockage of access to the highway by the government and not about blockage by the adjacent landowners. 

110. In the circumstances, the Defendant could not justify any allegation of the Plaintiff’s failure to keep his promise, incompetence, undue delay or failure in the discharge of his duty as a District Councillor.  Furthermore, the Defendant admitted under cross-examination that subsequently he had pursued the complaint himself with the various government departments and for two years the position remained the same.  This confirms my conclusion above.

Defence of justification - conclusion

111. In conclusion, the defence of justification totally collapsed.

FAIR COMMENT

112. The five ingredients in the defence of fair comment are set out in Cheng & Another v Tse Wai Chun[6].  These are:

(1) the words are comment and not statement of fact;

(2) there is a basis for the comment, contained or referred to in the matter complained of;

(3) the fact forming the basis for the comment must be true;

(4) the comment is on a matter of public interest; and

(5) the comment must be honest however prejudiced or obstinate one might be, and however exaggerated his view is.

113. The Plaintiff does not dispute that the Offending Words are capable of being construed as inferences or deductions from the alleged facts and are capable of being comments.  He does not dispute that being a District Councillor, his acts and conducts are subject matters on which the public has an interest to criticise.  He disputes there was sufficient factual basis for the comment. 

114. The Defendant relies on the same particulars pleaded in support of his defence of justification to support his defence of fair comment.  In essence, he relies on the Plaintiff’s concealment of the DLO Letter and the decision of the DLO; the alleged promise made by the Defendant at meeting at his private office on 20 January 2011; and the incompetent way in which the Plaintiff handled his complaint. 

No factual basis to substantiate the comment

115. On the facts as I found them, the alleged meeting at the Plaintiff’s private office on 20 January 2011 is a concoction; the Plaintiff had exercised due diligence and did what he could to advance the Defendant’s complaint; Miss Luk had verbally informed the Defendant of the content of the DLO Letter and sent him a copy and there was no concealing of the decision of the DLO.  Accordingly, the facts forming the basis for the comment are not true and there is no factual basis to substantiate the comments.

Whether the Defendant’s comments were honestly held

116. Even assuming there was somehow a factual basis for the comments, the Defendant has to prove that he held the comments in honest belief.  However, my finding that the entirety of his case was concocted excludes any possibility of his comments and opinion as expressed in the Defamatory Letter as being honestly held. 

117. First, having found that the alleged promise made at the meeting at the private office on 20 January 2011 was a concoction, there was absolutely no factual basis for the Defendant’s comments or opinion about the Plaintiff’s dishonesty and failing in his promise.  The Defendant could not have honestly held such comments or opinion.

118. Second, the Defendant had specifically requested for and received a copy of the case record.  He had no doubt that it was a contemporaneous record and had no reason to believe it was fabricated. Upon receipt of the case record, he must have read it and read it carefully.  He should have noticed the various entries showing the various steps taken by the Plaintiff in pursuing his complaint.  He should have realized that the Plaintiff had done all that could be done on his behalf.  There was no basis for his comments or opinion that the Plaintiff was incompetent, was guilty of undue delay, and failed to discharge his duty as District Councillor.

119. Third, upon reading the case record, he should have notice that Miss Luk had actually sent him a copy of the DLO Letter on 13 January 2011.  The issue, as I have said, is not whether the Defendant had received a copy of the DLO Letter, but whether Miss Luk had sent him one.  Even assuming that the Defendant had, by mishap, not received the copy of the DLO Letter, upon reading the case record he could have no doubt that Miss Luk had sent him a copy.  Besides, Miss Luk had actually informed him of the content of the DLO Letter by telephone.  Thus, he could not have honestly held any comments or opinion that the Plaintiff was dishonest in deliberately concealing the DLO Letter or withholding the content of that letter from him in order to secure his support at the Township Representative election. 

120. Mr Fung referred to paragraph 2 of the Defamatory Letter in which the Defendant said he felt extremely annoyed by the Plaintiff’s conduct.  That sentiment was expressed in the Defendant’s witness statement and repeated in his evidence in cross-examination.  Mr Fung submitted that the Defamatory Letter was written in a fit of anger constituting a way for the Defendant to vent his spleen and frustration from which lack of genuine belief in the view expressed may be inferred.  I do not view the evidence that way.  On my finding of fact, the Defendant knew all his allegations were untrue.  The factual basis on which the comments were based was concocted.  He could not have been genuinely angry at the conduct of the Plaintiff.  He was not venting his spleen but was consciously making up false allegations or comments against the Plaintiff. 

Defence of fair comment - conclusion

121. The factual basis relied on by the Defendant in support of his comment and opinion was not just misplaced but concocted.  He could not have honestly held the comments or opinion as expressed in the Defamatory Letter.  The defence of fair comment totally collapsed.

QUALIFIED PRIVILEGE

122. To invoke the defence of qualified privilege, the defendant has to prove that the occasion of the publication arises from his duty to speak out, and to tell all he knows or believes, or when it is necessary to speak in the protection of some common interest[7].  It is well established that communications made by an elector to another in relation to a candidate of an election is an occasion of qualified privilege[8]. 

123. The maker of a defamatory statement on an occasion of qualified privilege need not justify the truth of what he asserted.  But the defence of qualified privilege is negatived by malice. He loses the privilege if the statement was made with malice.  Malice in this context means: (1) using the privileged occasion to make the statement for some improper motives; or (2) absence of honest belief that what he published was true.  The improper motive relied on must be some dominant improper motive. Usually, an intention to injure the plaintiff may be a sufficient improper motive.  Making a statement for the purpose of venting one’s spleen or emotion is an abuse of the privileged occasion and constitutes malice[9].  Positive belief in the truth of what is published, however unreasonable, will usually protect the defendant unless he can be shown to have misused the privileged occasion for some improper motives.  The burden of proving malice is on the plaintiff. 

124. The Plaintiff accepts that complaints about public officers including himself as a District Councillor is privileged by such a duty, but argues that the defence is negatived by malice.  His case of malice is that the Defendant did not honestly believe what he said in the Defamatory Letter was true but published it to prejudice his chance of success in the District Council election in favour of his opponent, Mr Lau.  The burden of proof is on the Plaintiff.

Other circumstances relied on by the Defendant

125. I have quite fully set out all the relevant circumstances of the parties’ case.  For the purpose of considering the defences, Mr Yuen highlighted the following matters.

126. First, it is common ground that the Plaintiff and Defendant are mere acquaintances and had no previous grudge at all.  Probably, what led to the publication of the Defamatory Letter was the way the Defendant’s complaint was handled by the Plaintiff or his dissatisfaction of the outcome.

127. Second, there is no dispute that the Defendant was not an opponent of the Defendant in the District Council election.  The Plaintiff and Mr Lau had no political affiliation, while the Defendant was a member of the Liberal Party.  Mr Yuen submitted that on such background there was no reason for the Defendant to help Mr Lau.  He also pointed out that the visit was made in late August 2011 before nomination for the District Council election had commenced. I should also add that according to Mr Lau, he had not even made up his mind to run for the election at that stage.  Mr Yuen also argued that the Defendant only accompanied Mr Lau on his way to visit his sick friend.  Be that as it may, the fact is that on the Defendant’s own evidence, he did accompany Mr Lau to visit Mr Shek knowing that the purpose of the visit was to lobby for Mr Shek’s support at the District Council election and he was giving Mr Lau confidence; and on Mr Lau’s own evidence, he was testing the waters and explaining his election policy to Mr Shek.  There could be no doubt that the Defendant intended to support Mr Lau.

128. Third, Mr Yuen submitted that the Defendant was not a member of Mr Lau’s election team.  But Mr Fung argued that he was.  There is no evidence from the Plaintiff to support Mr Fung’s contention.  Such contention was denied by the Defendant in cross-examination.  According to the Defendant, he was a member of the Liberal Party and a member of the election team of a candidate from the Liberal Party in another constituency.  Mr Yuen also referred to Mr Lau’s evidence that he paid a home visit to the Defendant and was given a copy of the Defamatory Letter.  That supports the Defendant’s case that he was not a member of Mr Lau’s election team.  The purpose of Mr Yuen’s submission is that there was no reason for the Defendant to help Mr Lau.  However, the Defendant’s own evidence was that he assisted Mr Lau by accompanying him to visit Mr Shek.  He clearly demonstrated his intention to support Mr Lau at the District Council election.

129. All these matters had been taken into account in my decision reached so far and in my decision to be reached.  In the totality of the evidence, they carried little weight.  

Absence of honest belief

130. In paragraphs 116-121, I have found that the Defendant had no factual basis for his comments and opinion and in fact the factual basis was all concocted.  The same conclusion applies to his defence of qualified privilege.  Absence any factual basis for the Defendant’s opinion, the only inference is that the opinion was not honestly held by him.  Not only did he not honestly hold such opinion, he even cast a despicable image on the Plaintiff in the Defamatory Letter by deliberately concealing a most relevant fact that Miss Luk had informed him of the contents of the DLO Letter and sent him a copy.  Not only that he knew there was no concealment of the DLO Letter or of the outcome of his complaint, he made false accusations that there was.  The meeting on 20 January 2011 and the promise was concocted by him.  Such conduct is demonstrably malicious.  Had he fairly disclosed the fact that he had been informed by Miss Luk of the content of the DLO Letter or that according to the case record she had sent him a copy of the DLO Letter, the Defendant might still argue that his opinion about the concealment was nevertheless an honest and positive belief though unreasonable, bias, exaggerated or obstinate.  That is not the case. I find that the opinion about the Plaintiff as expressed in the Defamatory Letter was not honestly held by the Defendant.

Improper motive

131. The Plaintiff also relied on the Defendant’s motive of prejudicing him in the District Council election as an improper motive.  The fact relied on by the Plaintiff is that the Defendant accompanied Mr Lau to visit Mr Shek, vouched for Mr Lau and discredited the Plaintiff.  Because of the unsatisfactory state of Mr Shek’s evidence, I excluded his evidence.  What is left of the Plaintiff’s case in this respect is the Defendant’s own evidence of his intention to assist Mr Lau in his election campaign and knowingly gave him support by accompanying him to visit Mr Shek.  Having excluded Mr Shek’s evidence, I would not go that far as to infer from that visit a motive of prejudicing the Plaintiff in order to enhance Mr Shek’s chance of success in the election. Viewed in isolation, such evidence is insufficient to raise any inference of improper conduct.

132. However, when the Defendant’s assistance to and support for Mr Lau is viewed together with his deliberate concealment of Miss Luk’s two telephone calls informing him of the progress and the content of the DLO Letter; the lack of factual basis for his opinion; the false  accusations of concealment, dishonesty, failure to keep promise, etc which were all concocted by him; the inference that the motive behind his publication of the Defamatory Letter was to damage the Plaintiff’s credibility and image as a District Councillor so as to prejudice his chance of winning the election may be readily drawn.  

Defence of qualified privilege - conclusion

133. Not only that there was no factual basis to support the Defendant’s opinion as expressed in the Defamatory Letter, the factual basis was concocted by him and he knew it was false. The Plaintiff has amply shown that the opinion was not honestly held by the Defendant and that the Defendant published Defamatory Letter with the improper motive of damaging the Plaintiff’s credibility and image as a District Councillor so as to prejudice his chance of winning the election.  The defence was negative by malice.

DAMAGES

134. The Plaintiff is not seeking special damages in terms of loss of salary inherent to a District Councillor’s office which he failed to secure in the District Council election.  Nevertheless, the election as part of the factual matrix has a bearing on the damages to be awarded at large.  The Plaintiff seeks general damages, aggravated damages and exemplary damages. 

135. All the three heads of damages are “at large”.  In England, the practice in defamation cases has been to make a global award for general damages and aggravated damages instead of making separate awards for each head.  In Broome v Cassell & Co Ltd[10], the House of Lords expressed preference for a single sum award even where there is an element of exemplary damages.  A single sum award is convenient and reduces the risk of double-counting.  It is particularly preferable for trial by jury.  A split award has the advantage of underlining the factors considered for the different heads of damages and if the court has taken an unfavourable view of the defendant and the reasons.  In this judgment, I shall make split awards in view of its obvious advantages.     

General damages

136. The purpose of general damages is to compensate the plaintiff for the harm caused to him by the effects of the defamation. They serve three functions: (1) to provide consolation for the distress the plaintiff suffered as a result of the publication of the defamatory statement; (2) to repair the harm to his reputation, including where relevant, his business reputation; and (3) to act as a vindication of his reputation[11]. 

137. The damages awarded must be sufficient to restore the plaintiff, as far as money can do, to the position he would have been in if the tort had not been committed.  They must be sufficient to publicly, demonstratively and absolutely vindicate the plaintiff and to compensate him for the seriously injured feelings[12] 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[13].  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[14].  Where there has been no retraction or apology, an order for damages is the only solatium available to the plaintiff.  These principles are not disputed by Mr Yuen.

138. Mr Fung referred me to four cases: Cheung Ng Sheong Stevenv Eastweek Publisher Ltd[15], Downtex v Flatley[16], Chu Siu Kuk Yuen v Apple Daily Ltd & Ors[17], and John Raymond Luciw v Wolfgang Derler[18]. He asked for general damages to be assessed at $2 million.  Mr Yuen referred me to Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd & Ors[19], 周啓邦律師事務所訴何秀武[20], Au Yee Ming Ivan v Ng Fei Tip[21],  Kwan Siu Wa Becky v Marla Susilo[22],and Lee Ching v Lau May Ming[23].  He suggested a sum of $20,000 appropriate, should I find against the Defendant on liability.

139. In Cheung Ng Sheong Steven, the newspaper magazine published an article alleging that the plaintiff, a professor of the University of Hong Kong, failed to give lectures to students and refused to take a group photograph with the students.  The magazine published a correction two weeks later.  He was awarded $2.4 million by the jury.  The Court of Appeal considered the libel of merely marginal seriousness and set aside the award as grossly excessive.  Thus, that award serves no value as an indication of an appropriate quantum.  However, the Court of Appeal laid down the following guiding legal principles.  First, it is permissible for jury to be given guidance in quantum by being informed of libel awards made by judges.  The same applies to a trial by a judge sitting without a jury.  Second, the court should be wary that an excessive award might constitute an impediment to freedom of opinion and expression as guaranteed in article 16 of the Hong Kong Bill of Rights Ordinance (Cap 383).  Third, the award must be sufficient to publicly, demonstratively and absolutely vindicate the plaintiff and to compensate him for the seriously injured feelings.  The Court of Appeal said at 613D-E:

“… 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. … ” (original emphasis)

140. In Downtex v Flatley, the English High Court emphasised the relevance of the business or professional relationship between the publishee and the claimant when deciding on the quantum of the award.  Tugendhat J said at paragraph 26:

“26. Publication to a relatively small number of persons who are already in a business or professional relationship with a claimant may be as serious or worse than a wider publication to persons who are not, and are unlikely to contemplate being, in such a relationship …”

141. In Chu Siu Kuk Yuen, a newspaper article alleged that a female solicitor, surnamed “Siu” who practised in Yuen Long, had absconded with $2 million of client fund.  Upon discovery of the identity of the solicitor on the following day, the newspaper published an apology without mentioning the name of the plaintiff or the solicitor who actually absconded with client funds but merely stated that the solicitor the police were looking for was not surnamed “Siu”.  As a result of the article, the plaintiff suffered depression which materially contributed to her child being born almost 13 weeks premature and remained in a life-threatening condition for some time thereafter.  The plaintiff sought compensatory, aggravated and exemplary damages.  Yuen J, as she then was, awarded general damages in the sum of $3 million.  She declined awarding aggravated damages in the absence of actual malice.  She also declined awarding exemplary damages on the ground that it had not been shown that the defendant knew or was reckless whether he was committing a tort and have decided to do so because the material advantages from publication outweighed the prospect of material loss.

142. In Luciw v Derler, the defendant created a Facebook page in the name of the plaintiff.  He posted a photograph of the plaintiff and his wife on the Facebook page and described the plaintiff as both a homosexual and a paedophile.  While in control of the Facebook page, the defendant sent Facebook messages to a female friend of the plaintiff, the plaintiff’s wife, and his nephews of a sexual or paedophilic nature.  Citing Chu Siu Kuk Yuen, DHCJ Saunders, as he then was, awarded general damages in the sum of $1 million.

143. In Hung Yuen Chan Robert, the plaintiff was a practising solicitor and Honorary Vice-Consul for the Republic of Paraguay in Hong Kong.  His office as Honorary Vice-Consul was terminated in August 1994.  In September 1994, the defendant published an article in the front page of its newspaper in relation to a passport scandal and the plaintiff’s dismissal as Honorary Vice-Consul.  Le Pichon J, as she then was, awarded him general damages in the sum of $700,000. That was an award for defamation made 17 years ago.

144. In Au Yee Ming Ivan, the plaintiff was the chairman of an incorporated owners of a building.  He was slandered to have taken advantage of his position.  General damages in the sum of $15,000 and aggravated damages in the sum of $10,000 were awarded against the defendant. 

145. In Kwan Siu Wa Becky, the plaintiff was the chairperson of a flight attendants union.  Two defamatory emails were sent by the defendant attacking her honesty and integrity.  There were 100 odd recipients of the email as compared to 7,000 members in the union.  General damages in the sum of $100,000 and aggravated/exemplary damages in the like amount were awarded.

146. In Lee Ching the 1^st plaintiff was a vice chairperson of a charitable organization and the 2^nd plaintiff was its secretary.  They were defamed in a letter issued to all members of the organization in relation to their personality, integrity and loyalty.  They were each awarded $200,000 in general damages and $200,000 in aggravated damages.

147. In周啓邦律師事務所訴何秀武, the defendant was a District Councillor.  The 1^st plaintiff was a partner of a solicitors firm, member of the Liberal Party, and Legislative Councillor who supported the defendant’s opponent in the District Council election.  The defendant’s election team distributed several tens to a hundred election leaflets accusing the 1^st plaintiff of misuse of his public office and unsuitability for the office.  DHCJ Auyeung, as she then was, awarded the 1^st plaintiff $100,000 as general damages and $20,000 as aggravated damages.

148. Mr Fung relied heavily on the damages awarded in Chu Siu Kuk Yuen and Luciw v Derler in support of his claim for an award of $2 million.  While he recognised that the defamatory statements in those two cases were much more widely circulated than that in the present case, he argued that the plaintiffs in those two cases were not public figures.  He also relied on the principle in Downtex v Flatley.  He emphasised on the business relationship between the Plaintiff and the publishees who were influential public figures and politicians in the locality.  He submitted that the injury suffered by the Plaintiff were effectively at least as damaging if not worse than a wider circulation among the general public. 

149. On the other hand, Mr Yuen argued that the Defamatory Letter was only distributed to about 25 recipients in a district where there were about 6,800 eligible voters; that they were sent by mail instead of being prominently distributed or exhibited in the streets; and were published well before the votes were to be casted.

150. In assessing damages in defamation, the relevant considerations include the seriousness of the libel having regard to the plaintiff’s position and standing; the prominence of the article; the circumstances of its publication; the conduct of the defendant, including his conduct subsequent to the plaintiff’s complaint; and the absence of any retraction or apology. 

151. The Plaintiff was a public figure in Shuen Wan area.  He was a village representative and had participated in a lot of community work for his village and Sam Mun Chai Village since 1980.  At the material time, he had held the office of a District Councillor for seven years.  The Defamatory Letter was published during the campaign for the District Council election which the Plaintiff was running for.

152. The Defamatory Letter was published to about 25 recipients who were politicians, village representatives, chairmen or committee members of rural committees and fishermen representatives.  They may not have much effect on the outcome of the election as the voting public had been very much diluted by non-indigenous villagers over whom the recipients might exercise no or little influence.  However, the recipients had personal or business relationship with the Plaintiff.  

153. The libel in the present case was a very serious one since it impugned on the reputation of the holder of a public office.  It was published during the early stage of the campaign period for the District Council election.  Given the relatively small circulation, the publication of the Defamatory Letter may not have any serious consequence to the outcome of the election.  Nevertheless, the publication was made to politicians and public figures in the locality, many of whom had business relationship with the Plaintiff and whose views on his honesty, integrity and competency as a District Councillor were highly treasured by the Plaintiff.  It was published during the Plaintiff’s election campaign.  Though that had little or even no impact on the outcome of the election, it created much anxiety and annoyance on the Plaintiff.  The injury to his feeling cannot be lightly overlooked.  The injury was further exacerbated by the Defendant’s refusal to retract or apologise.  He deserves substantial damages to console him for the distress he suffered, to repair the harm to his reputation, and to vindicate his reputation from the date of publication down to judgment. 

154. However, I do not consider Chu Siu Kuk Yuen and Luciw v Derler appropriate comparables for the present case.  In the former case, the accusation of a solicitor absconding with client funds was much more serious and carried with it a criminal connotation.  That publication was made in a newspaper of wide circulation in the entire territory and not just a locality.  The plaintiff suffered physical injury as a result.  The libel in the latter case was of a different nature and to publishees who were relatives of the plaintiff.  I think 周啓邦律師事務所訴何秀武  is a better comparable in terms of time and the facts.  In that case, the 1^st plaintiff was a practicing solicitor and member of the Legislative Council a person of greater prominence than the Plaintiff and the defamatory leaflets were given a wider circulation.  Having regard to all the circumstances, I consider an award of $200,000 appropriate.

Aggravated damages

155. The purpose of aggravated damages is also compensatory by nature.  It is to compensate the plaintiff for the additional injury to his feelings caused by the defendant’s conduct where it is justifiably heightened by the manner in which or motive for which the defendant  caused it[24]. In deciding whether to award aggravated damages, the court should look for aggravating factors over and above those which are relevant for considering an award of general damages or facts which are extraneous to the publication of the libel, such as the defendant’s state of mind and motive; and his conduct of the defence.  In Rookes v Barnard, Lord Devlin held that in considering an award for aggravated damages the following factors are relevant[25]:

(1) the defendant’s motive;

(2) the defendant’s conduct;

(3) whether the defendant bore any malevolence or spite or committed the wrong in such manner as to injure the plaintiff’s proper feelings of dignity and pride;

(4) the defendant’s failure to make any or any sufficient apology and withdrawal of the libel;

(5) the repetition of the libel;

(6) the defendant’s plea of justification if it was bound to fail;

(7) the defendant’s conduct in deterring the plaintiff from proceeding;

(8) the defendant’s conduct of the defence, especially his persistence by way of prolonged or hostile cross-examination of the plaintiff; and

(9) the general conduct of the proceedings in a manner calculated to attract wide publicity.

156. Mr Fung asked for an award of $500,000 under this head.  Only a few cases of aggravated damages were cited by counsel.  In Luciw v Derler, quoted by Mr Fung, an award of $100,000 for aggravated damages was made.  In the authorities quoted by Mr Yuen, the awards were more modest. Each case depends on its facts and the amount of general damages also has a bearing.

157. As I have found, the Defendant knew that his allegations in the Defamatory Letter were untrue in fact and in substance.  In fact, he concocted them.  His motive in publishing the Defamatory Letter was to discredit the Plaintiff and to prejudice his chance of success in the election.  That was malicious.  He turned down the Plaintiff’s invitation to apologise and to withdraw the libel. He insisted on adhering to his allegations in the Defamatory Letter and refused to put an early end to this episode without the need for the Plaintiff to resort to ligation.  Since he knew the allegations were false, particularly as he concocted them, he must have known his defence of justification, fair comment and qualified privilege is bound to fail.  Yet, he chose to contest the action to its very end, thereby unnecessarily increasing the anxiety caused to this aged Plaintiff.  An award of aggravated damages is well justified.  Fortunately for him, without compromising his defence, his counsel conducted the defence in a most lawyerly manner.  Having regard to all the circumstances, I consider an award of $100,000 for aggravated damages appropriate.  In arriving at the above assessment, I have not taken into account the injury to the Plaintiff’s feeling etc which has been compensated for by the general damages awarded.

Exemplary damages

158. By its very nature, exemplary damages are intended to punish a defendant for his anti-social behaviour to the plaintiff in his wilful commission of a tort[26]. They were used to be called “punitive damages”.  They are controversial because on one view they confuse punishment and compensation[27]; but another view is that these two functions are like oil and vinegar which may not mix in solution but nevertheless make an acceptable liaison[28]. Until the House of Lords decision in Rookes v Barnard[29], they were not clearly differentiated from aggravated damages.  Rookes v Barnard and subsequent House of Lords decisions confirmed that the remedy is available against arbitrary or unconstitutional actions by servants of the government and certain wrongful and conscious profit motivated conduct.  In respect of the latter category of conduct, which came to be referred to as “Lord Devlin’s second category”, Lord Devlin said that an award of exemplary damages is permissible where:

“The defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.”[30]

This principle was re-formulated in a later House of Lords case by Lord Hailsham in Cassell v Co. Ltd v Broome[31] as follows:

“What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic, or perhaps physical, penalty.”

The formulation in both cases was focused on profit motivated conduct.

159. More recently, in Kuddus v Chief Constable of Leicestershire[32], the House of Lords expressed the view that the House should depart from its decision in Broome v Cassell Co. Ltd and adopt a different approach.  First, Lord Slynn said that it is the behaviour giving rise to the wrong found to have been committed rather than the cause of action which has to be looked at to decide whether the facts fall into one or other of the prescribed categories.  Second, Lord Nicholls said that behaviour is as good a basis as the profit motivated conduct for making an award of exemplary damages.  His Lordship considered that the rationale of exemplary damages lies in the sense of outrage which a defendant’s conduct sometimes evokes, ‘a sense not always assuaged fully by a compensatory award of damages, even when the damages are increased to reflect emotional distress’[33]. The essence of the conduct constituting the court’s discretionary jurisdiction to award exemplary damages is conduct which amounted to an outrageous disregard of the plaintiff’s rights.  Lord Nicholls said[34]:

“…The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant’s conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiff’s rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna.

…

Nor, I may add, am I wholly persuaded by Lord Devlin’s formulation of his second category (wrongful conduct expected to yield a benefit in excess of any compensatory award likely to be made). The law of unjust enrichment has developed apace in recent years. In so far as there may be a need to go further, the key here would seem to be the same as that already discussed: outrageous conduct on the part of the defendant. There is no obvious reason why, if exemplary damages are to be available, the profit motive should suffice but a malicious motive should not.

As I have said, difficult questions arise here. In view of the limited scope of the submissions made by the parties on this appeal, this is not the occasion for attempting to state comprehensive conclusions on these matters. For the purposes of the present appeal it is sufficient, first, to express the view that the House should now depart from its decision in Broome v Cassell Co. Ltd [1972] AC 1027, in so far as that decision confirmed the continuing existence of what has subsequently been described as the “cause of action” condition and, secondly, to note that the essence of the conduct constituting the court’s discretionary jurisdiction to award exemplary damages is conduct which was an outrageous disregard of the plaintiff’s rights.”

(Emphasis added)

However, Lord Scott was of the view that an award of exemplary damages, the intention of which is not to compensate the victim of a wrong but to punish its perpetrator, is an anomaly[35].  But that was a minority view only.

160. In A v Bottrill[36], Lord Nicholls when delivering the majority judgment of the Privy Council explained outrageous conducts as:

“…in the nature of things, cases satisfying the test of outrageousness will usually involve intentional wrongdoing with, additionally, an element of flagrancy or cynicism or oppression or the like: something additional, rendering the wrongdoing or the manner or circumstances in which it was committed particularly appalling. It is these features which make the defendant’s conduct outrageous…”

161. Thus, over the past forty years, the law on exemplary damages has moved forward.  Certainly there are wrongful and conscious conducts which give no financial benefit to the wrongdoer but which are no less appalling than profit motivated conducts.  There is no reason why such conducts should not be punished.  Thus, the scope to which exemplary damages are available have expanded from punishing profit motivated conduct, ie conduct under Lord Devlin’s second category, to outrageous conduct.  The essence of such outrageous conduct is conscious wrongful conduct committed in contumelious disregard of the plaintiff’s rights with an additional element of flagrancy or cynicism or oppression, or committed in manner or circumstances which render the conduct particularly appalling, such that the court has to show its public disapproval of such conduct and to pass on a public message that the law will not tolerate such conduct by awarding exemplary damages over and above that which would be sufficient to compensate the victim for the wrong suffered.

162. I have not been referred to nor am I aware of any Hong Kong authorities in which exemplary damages were awarded on the basis of the defendant’s outrageous conduct.  Awards for exemplary damages were mostly made on the basis of Lord Devlin’s second category.  The nearest case I am aware of was Deacons v White & Case LLP & Ors[37].  In that case, DHCJ Gill referred to Lord Nicholls’ dicta in Kuddus, but concluded that the plaintiff’s case just fell short of proving outrageous conduct.

163. In the present case, I find that the Defendant had received a copy of the DLO Letter in January 2011, and in any event, upon his receipt of the case record he must have known that a copy had been sent to him.  On the fact, I find that he had actually received a copy of the DLO Letter in January 2011.  It was with that knowledge that he issued the Defamatory Letter making serious allegations against the Plaintiff which he knew were untrue.  This is a case of concoction, not a case of recklessness or gross negligence.  Such conduct is more deserving of punishment.  The Defendant knowingly made false accusation against the Plaintiff in the Defamatory Letter.  He issued it at the time of the campaign for the District Council election.  The Defamatory Letter was obviously targeted to prejudice the prospects of the Plaintiff in the then upcoming election.  But for one consideration, I would have held such conduct as outrageous and a contumelious disregard of the Plaintiff’s right.  He did not publish the Defamatory Letter indiscriminately.  Only about 25 copies were issued.  They were sent by post.  His conduct, though very serious, was just short of being an affront to the court’s sense of justice and was insufficient to provoke the court to exercise its discretion to award the additional punishment.  The general damages and aggravated damages are sufficient to provide consolation for the distress he suffered; to repair the harm done to his reputation; and to vindicate him.  I make no award under this head.

INJUNCTION

164. As for the injunction sought, there is nothing to suggest that the Defendant will repeat the publication.  I consider the award under this judgment sufficient to deter him from doing so.  Accordingly, I shall not grant this remedy.

CONCLUSION

165. The meanings of the Offending Words as I found them were defamatory of the Plaintiff.  The Defendant was unable to justify the defamatory meanings and failed in his defence of fair comment and qualified privilege.  Having regard to all the circumstances, I award the Plaintiff general damages in the sum of $200,000 and aggravated damages in the sum of $100,000 together with interest at judgment rate from the date of this judgment.  I refuse the Plaintiff’s application for injunction.  I make a costs order nisi that the Defendant shall pay the Plaintiff’s costs of this action on an indemnity basis.