CHAN KWING CHIU AND ANOTHER v. 陳志球

HCA 505/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 505 OF 2007

____________

______________

J U D G M E N T

______________

Introduction

1.  This dispute, a defamation claim, has been described as a storm in a teacup.  Perhaps both sides played a role in building up the storm.  Disputes often arise in relation to matters closest to home.  Territorial by human instinct, people are often jealous of guarding the sanctity of their perceived home borders. In their attempts to preserve their home as a haven, people may sometimes tend to be overzealous, at the risk of being intolerant and uncompromising, to the extent of being unreasonable.  All these may explain the gathering of the storm.

Background

2.  Savanna Garden (“Estate”) is a residential development in Tai Po, New Territories.  It consists of 40 houses and 9 apartment blocks, with a total of 284 units.  Under the Deed of Mutual Covenant (“DMC”) which governs the Estate, 52 shares are allotted to each of the owners of Houses 1 to 19, 48 shares are allotted to each of the owners of Houses 20 to 40, and 20 to 28 shares are allotted to each of the owners of the units in the apartment blocks. Each owner has one vote for each undivided share they hold in the Estate.  Members of the Owners’ Committee (“Committee”) are elected by the owners of the Estate at their annual general meeting, and tasked with deciding on matters relating to the management of the Estate in liaison with the managers. 

3.  On the evidence filed in these proceedings, it would appear that the house owners and the apartment unit owners did not see eye to eye when it came to matters of management of the Estate.  Some of the owners were unhappy with the performance of Kai Shing, the management company appointed under the DMC in 1988.  In 2003, the Committee appointed Whampoa Property Management Company Ltd (“WP”) as managers of the Estate in place of Kai Shing.  Yet other owners were dissatisfied with the Committee’s handling of the affairs of the Estate, and with their appointment of WP.  The house owners of the Estate (as opposed to the apartment unit owners) also thought that they did not have sufficient representation on the Committee.  At a meeting of the owners held on 4 September 2005, all members of the then Committee (with one exception) were voted out of office.  The new Committee comprised 12 house owners and 3 owners of units of the apartment blocks.  The 1^st plaintiff (“Chan”) became the vice-chairman of the 2005/2006 session of the Committee, and the 2^nd plaintiff (“Lam”) became a member of the same Committee.  At all material times, the defendant (“CK Chan”) was the Chief Estate Manager of WP.

4.  Matters relating to the management of the Estate did not improve after September 2005, and the relationship between the Committee and WP as managers in fact deteriorated.  Members of the 2005/2006 session of the Committee thought that the management staff of WP were incompetent.  They complained of one incident after another relating to affairs of the Estate.  Unfortunately, some of the more relevant background history has to be narrated for the understanding of the dispute which is the subject matter of these proceedings.  It is also the owners’ claim that their historical dealings with WP had bred hostility in WP, and that such history is by itself evidence of CK Chan’s malice against Lam and Chan.

5.  From the account of the Committee members, life at the Estate was anything but uneventful in 2006.  In February 2006, an under-age and unlicensed driver drove his parents’ car into the barrier of the carpark complex of the Estate, causing the barrier to be damaged.  The Committee discovered this only in June 2006, and the members claimed that the record of the incident had been altered by WP in an attempt to cover-up the true facts of the incident.  The Committee members considered that WP were negligent in their handling of this incident, in having failed to report a criminal matter to the police and to seek recovery of the cost of repairs of the barrier from the party liable.  In April 2006, the former and ousted chairman of the Committee, allegedly drunk at the time, stopped his car at the main entrance of the Estate in the peak traffic hours of the morning.  He not only caused serious traffic obstruction, but had allegedly also threatened to set fire to the LP gas tank of the Estate.  The Committee considered that WP had handled that incident in an improper manner, and had given preferential treatment to the former chairman, who was (it is claimed) instrumental in the appointment of WP as managers of the Estate.  In June 2006, there were several attempted burglaries within the Estate.  The Committee complained that there were serious failings in the security system and measures maintained by WP.  At a meeting of the owners held in July 2006, members of the Committee expressed “severe criticism” against WP and the management team at the Estate, and demanded for improvement in their management and operations at the Estate.

6.  In particular, members of the Committee were singularly dissatisfied with WP for introducing and implementing from August 2006 their policy of impounding the cars which the house owners parked outside their homes, by or near the entrance to their garages (“Policy”).  WP claimed that these vehicles were parked in the common areas and private roads within the Estate, and that as managers, they had the duty under the DMC and under the law to ensure that the common areas and roads were not obstructed, and to remove vehicles which were parked on these common areas and the roads of the Estate.  On their part, members of the Committee claim that house owners had parked their cars outside their garages for many years without interference from the former managers of the Estate.  They claim that they had not been fully consulted, and disagree that WP could implement the Policy without their consent.  They further considered that the implementation of the Policy was a matter of low priority in the management of the Estate, and that the Policy was inapplicable to the house areas.  Ample paperwork and some indignant correspondence were produced and circulated amongst the Committee, the residents of the Estate and the WP management team on the issue of the Policy, as to whether the Committee and the residents had been fully consulted, and whether the views of the Committee members were representative of the residents on the issue.  At one stage, the Committee threatened to issue a solicitor’s letter to WP.  There were some apparently heated exchanges at a meeting of the Committee which was attended by CK Chan and his management team.  The chain of correspondence ended with the house owners declaring to WP in writing on 21 October 2006 that they would continue to park their vehicles outside their garages, and WP in turn stating to all residents on 27 October 2006 that they would continue to enforce the DMC within the Estate, including the house areas.  The storm thus gathered.

The incident

7.  On the evening in question on 27 October 2006, Lam returned home from Shenzhen at around 9 pm, and stopped his car by the entrance to House No 31 of the Estate where he lived.  He asked his domestic helper to clean the car outside the house.  Lam’s intention was to drive the car back into the garage after it had been cleaned.  Lam said that shortly after entering his house, and just as he was about to bathe, he received a curt telephone call from the management office.  He was asked to drive his car back into the garage immediately, or his car would be impounded.  The line was cut before Lam could even respond.  Lam’s evidence is that he considered the demand made by the management office to be unreasonable, as the parking of his car by the entrance to his garage did not cause inconvenience to anyone.  He decided to go to the management office to reason with the staff there.  Before leaving his house, Lam telephoned Chan and asked Chan to go with him to the management office, to resolve the dispute concerning the impounding of his car.  Chan and his wife immediately summoned at least two other house owners to go to the management office.

8.  Lam arrived first at the management office, and found Hui Kau Yung (“Hui”) and two other security officers in the employ of WP there.  Hui was at the material time the Senior Estate Officer stationed at the Estate.  Lam asked Hui to go to House No 31, to see if the parking of his car outside his garage was causing inconvenience to anyone.  Lam claims that Hui asked him to drive his car away, or it would be impounded.  Lam says he pulled Hui by his sleeve and demanded that he should go to his house.  At around this time, Chan and his wife arrived at the management office.  Chan claims that he tried to separate Lam and Hui to prevent a fight.  Hui claims that in this process, he was grabbed forcibly by Lam, dragged for some distance, and that Chan pushed him in the chest.  The police were called.  After some preliminaries, the matter was recorded by the police as a push and shove incident, and also recorded to have been settled by the parties.  After the police and the ambulance departed, Hui claimed that he felt unwell.  He went to the Alice Ho Mui Ling Nethersole Hospital (“Hospital”) for treatment.  He further filed a report with the police of having been assaulted by Lam and Chan.

The alleged defamation

9.  On 13 November 2006, CK Chan as Chief Estate Manager and on behalf of WP issued a letter to the Committee members and to the Chairman of the Committee (“1^st Letter”).  The 1^st Letter referred to Hui having been “violently assaulted” (“暴力毆打”) by two owners whilst executing his duties of impounding illegally parked vehicles.  It was stated in the 1^st Letter that the matter involved the personal safety of frontline workers of WP in their lawful execution of duties, and was a serious matter, such that WK would like to have the incident of 27 October 2006 (“Incident”) and the issue of unauthorized parking to be discussed at the meeting of the Committee scheduled on 15 November 2006 (“Meeting”).

10.  Prior to the issue of the 1^st Letter, CK Chan had asked Yim Kwok Hong, the chairman of the Committee (“Chairman”), to include the Incident and the matter of unauthorized parking in the agenda for the Meeting, so that these can be discussed.  The Chairman did not agree, on the ground that the Incident was being investigated by the police, that the Incident involved a matter between individual owners and that it was not for the Committee to deal with such matters.

11.  WP tendered its resignation as managers of the Estate on 15 November 2006, by giving 6 months’ notice under their agreement.  On 16 November 2006, WP issued a letter to all owners of the Estate (“2^nd Letter”). The 2^nd Letter referred to the Incident, reiterating that a manager had been “attacked and injured” (“遇襲受傷”) in the management office, in the course of execution of his duties of impounding vehicles, and that the matter was being investigated by the police.  The 2^nd Letter stated that the personal safety of WP’s frontline staff had been seriously threatened, that WP had been obstructed in their lawful management of the Estate, and that they had no alternative but to resign as managers.

12.  At the Meeting on 15 November 2006, CK Chan repeated the statement that his colleague had been “attacked and injured” (“遇襲受傷”).

13.  Chan and Lam claim that the 1^st Letter and the 2^nd Letter, and the words used by CK Chan at the Meeting, are all defamatory of them, since the letters and the words used suggest that they had “violently assaulted” Hui, and that Hui had been “assaulted and injured” by them.

14.  The storm hit, but the story does not end.  On 25 December 2006, Lam wrote to the Committee and all residents of the Estate, referring to the 2^nd Letter and stating that he had been “condemned” and that “accusations” had been directed against him as a result of the Incident and the 2^nd Letter.  The letter was copied to WP.  On 27 December 2006, Chan likewise wrote to the Committee, with copies of the letter sent to all residents of the Estate, WP and Hutchison Whampoa Ltd (“Hutchison”).  He referred to the 1^st Letter and the 2^nd Letter, gave his account of the Incident and pointed out that the police had concluded their investigations and had not found anyone to have committed any criminal act.  He repeated that he had been targeted and criticized as a result of the Incident.

15.  CK Chan complains that the letters from Lam and Chan are defamatory of him, as they suggest that his account of the Incident was untrue and a concoction, and that Lam and Chan had been unjustly victimized by CK Chan.

16.  CK Chan further complains about a letter dated 10 January 2007, which was written jointly by Chan and Lam to the General Manager of Hutchison, and was copied to Mr Li Ka Shing, Mr Fok Kin Ning and Mrs Chow Woo Mo Fong of Hutchison, and Mr Raymond Chow, Mr Raymond Tam, Mr Tony Chui and Mr William Tang of WP.  In the letter, Chan and Lam claimed that CK Chan had made irresponsible accusations in correspondence, and had used the Incident as an excuse to resign as the managers of the Estate.  It was claimed in the letter that the allegations made by CK Chan were unsubstantiated and were defamatory.  On CK Chan’s case, this joint letter suggests that he had deliberately lied about the Incident, had made irresponsible and unfounded accusations, and had acted unreasonably in using the Incident as a pretext for WP to resign as managers of the Estate.

17.  On 13 March 2007, Chan and Lam instituted proceedings against CK Chan in respect of the defamatory statements contained in the 1^st Letter, the 2^nd Letter and as made in the Meeting.  By way of defence, CK Chan pleads justification and qualified privilege.  He further counterclaims for damages in respect of the defamatory statements contained in the letters dated 25 December 2006, 27 December 2006 and 10 January 2007.

18.  Chan and Lam deny that the offending words contained in the 1^st Letter, the 2^nd Letter and spoken at the Meeting were published on an occasion of qualified privilege.  They further claim that CK Chan was actuated by malice at the material time when the offending words were published.

The issues

19.  CK Chan no longer disputes that the offending words complained of by Chan and Lam were understood to refer to them, although Chan and Lam were not named in the offending letters.  Nor does he dispute that the words are on their face defamatory.  In view of the defences raised, and the evidence produced at trial, the issues for determination in the main action turn on:

(1)  whether Hui was indeed “violently assaulted”, and “assaulted or attacked and injured” by Lam and Chan on 27 October 2006;

(2)  whether WP had a duty to issue the 1^st Letter and the 2^nd Letter and to publish the offending words complained of;

(3)  whether CK Chan was acting under an improper motive when he issued the 1^st Letter and the 2^nd Letter and published the offending words complained of; and

(4)  the damages payable to Chan and Lam if their claim of defamation succeeds.

20.  The determination of the counterclaim follows from the findings made in the main action. 

Whether Hui was indeed “violently assaulted”, and “assaulted or attacked and injured” by Lam and Chan on 27 October 2006

21.  It is not in dispute that the burden of proving the defence of justification is on CK Chan.  Nor is there any dispute that the offending words complained of should be construed in their context and by their natural and ordinary meaning.  If a defendant is able to prove that “the main charge, or gist, of the libel” is true, it is not necessary for him to justify each and every statement or comment which does not add to the sting of the charge (Gatley on Libel and Slander 11th edition, 2008 paragraphs 11.8-11.10).

22.  The offending words should be construed in their natural and ordinary meaning, which is the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would likely understand them.  In this case, I do not agree that it would be appropriate to construe the words used by their legal meaning, by reference to the criminal offences or torts of assault, or battery.  Concepts such as “apprehension of immediate and unlawful personal violence”, “intentional or reckless acts” and even “battery” would not naturally come into the minds of reasonable people of ordinary intelligence, possessing general knowledge and experience of worldly affairs, when they come across the words “暴力毆打” and “遇襲受傷” and try to understand what they mean. 

23.  In my judgment, read in their proper context, the words “暴力毆打” simply mean to an ordinary, reasonable and fair-minded person that Hui had been violently assaulted or beaten, and the words “遇襲受傷” mean that Hui had been attacked, or assaulted or hit, and injured as a result.

24.  Has CK Chan been able to establish, on a balance of probabilities, that Hui had been violently assaulted or beaten by Chan and Lam, and that Hui had been attacked, assaulted or hit by Chan and Lam, and injured as a result?

25.  The Incident took place in October 2006, more than 5 years ago.  It is understandable that the witnesses called to give evidence at trial in June 2012 would not be able to recall the exact small details of Hui’s encounter with Lam, and then with Chan, which took place in a matter of minutes.  Police statements were given by the main protagonists shortly after the Incident: Hui on 28 October 2006 and 8 November 2006, Lam and Chan on 11 November 2006 and 25 November 2006.  Witness statements were also filed in these proceedings by Hui on 28 April 2008, by Lam on 22 March 2009 and 16 November 2009, and by Chan on 22 March 2009 and 17 November 2009.

26.  According to CK Chan’s Amended Defence and Counterclaim, Lam went to the Management Office at about 9:25 pm, asked Hui why he could not park his car outside his house and demanded that Hui should go to his house to investigate. It is pleaded that when Hui turned down Lam’s request, Lam tried to drag Hui to his house by pulling his shirt and tie.  When Chan arrived at the management office, it is claimed that he pushed Hui hard on the chest.

27.  In his statement made to the police on 18 November 2006, Lam claimed that he went to the management office to reason with Hui, and on arrival at the management office, he asked Hui to go to his house to look at his car, but Hui had refused.  Lam admitted in his police statement that argument ensued, and that Hui had pushed him on the shoulder and asked him to drive his car away.  Lam therefore used his hand to pull Hui’s shirt, urging him to follow him to his house.  Lam claimed in his 1^st police statement that when Chan arrived, Chan separated Lam and Hui and pushed him outside the management office.

28.  In his witness statement made for the purpose of these proceedings on 22 March 2009, Lam claimed that Hui refused to go to Lam’s house as asked, without giving any reason.  Lam repeated that Hui had pushed him on the shoulder, asking him to go and drive his car away, and that he was annoyed.  Lam claimed that he therefore pulled Hui by the sleeve and demanded that he should go to his house. 

29.  In his supplemental witness statement made on 16 November 2009, which was about 3 years after the Incident, Lam claimed that he had only used 2 fingers of his right hand to pull Hui’s sleeve slightly, when he asked Hui to go to his house.

30.  In his statement made to the police on 18 November 2006, Chan claimed that when he arrived at the management office, he saw Lam and Hui standing very close to each other, face to face.  Chan claimed that he saw Lam pull Hui by his shirt sleeve, for a very short interval.  Chan claimed in his police statement that 4 or 5 security guards were surrounding Lam, and feeling that there might be a fight, Chan went up and used his hands to separate Lam and Hui.  Chan acknowledged in his 2^nd statement made to the police on 25 November 2006 that there had been an argument in the management office. 

31.  In his witness statement made on 17 November 2009, Chan claimed that he had seen Lam use 2 fingers of his right hand to pull Hui’s left sleeve slightly.

32.  Chan’s wife and the other owners who arrived after Chan did not witness the close encounter between Hui and Lam and then Chan.  Mrs Chan only heard loud noises or argument, and saw 4 or 5 guards who she claims had surrounded Lam.

33.  On Hui’s part, according to his witness statement made on 28 April 2008, Lam had stormed into the management office, shouting obscene words in Cantonese loudly, and using foul language.  According to Hui, Lam had charged at him, asking why he could not park his car in front of his own house, and demanded that Hui should go with him immediately to check the position.  When Hui refused, Lam grabbed him forcibly by his shirt and tie, and dragged Hui to the front door of the management office.  Hui claimed in his witness statement that he stumbled along with Lam for 10 steps, and that Lam only released him from his grip when Chan appeared. 

34.  Hui claimed in his witness statement that Chan “stampeded” him and pushed him on the chest, which caused Hui to lose his balance and to retreat for 2 steps.  Hui further claims that Lam and Chan then got hold of him with their hands and “whisked him to the front door”.  It was only then that, on Hui’s case, Hui’s 2 colleagues Kuo and Ng came to his rescue and separated Chan and Lam from Hui.

35.  Hui was extensively cross-examined as to the graphic descriptions contained in his witness statement: as to how he was forcibly dragged from his office to the front door of the management office, and his being whisked to the front door by both Lam and Chan.  He maintained that the only inaccuracy contained in his statement was that he had actually come out to the counter of the management office, such that Lam had dragged him for a distance of 3 feet only, and not all the way from his own office to the front door.

36.  In the statement which Hui gave to the police on the night of the Incident, Hui had claimed that Lam had used his hands to pull him by his shirt and his tie, forcibly dragging him forward for about 10 steps.  Hui also claimed in his police statement that when Chan arrived, Lam had let go of him, but Chan had come up to Hui, and used his right hand to push Hui once on the chest, making him go back for 2 steps.

37.  Although Lam had, in his testimony in court, attempted to play down his agitation when he arrived at the management office, I do not find it credible that the encounter between Lam and Hui had been as calm and docile as Lam suggested in court.  In his own witness statement, he had claimed that he was annoyed when Hui repeated in the management office that Lam should drive his car away. According to Lam’s own testimony in court, he had returned home tired after a long journey, and was about to take a bath when he received the curt call from the management office to remove his car.  His car had been damaged shortly before the Incident, when the space in front of his garage had been marked by the management office for guest parking over the 1 October public holidays.  He had been given a temporary permit for parking outside his garage.  Despite this, he was told on 27 October to remove his car immediately, or it would be impounded under the Policy which Lam and the house owners had never agreed to. According to Lam, he had to get dressed to make the visit to the management office. He had made the point of calling Chan to go to the management office with him, obviously to object to the idea of having to remove his car, as otherwise he would simply have driven his car back into the garage, as asked.  In any event, Lam admitted in court that he had used foul language on arrival at the management office. In all the circumstances, it is unlikely that Lam would have been calm and dispassionate when he arrived at the management office on the night in question to reason with Hui.

38.  Clearly, Lam’s intention was to have Hui go to his house, to demonstrate to Lam how his car was causing inconvenience to other users, or obstructing the common parts of the Estate.  I do not find it credible that in his agitated state, Lam would have used his thumb and his finger to slightly pull Hui, in a pinching motion as Lam appeared to suggest in Court, when he tried to get Hui to go to his house.  His attempts in Court to downplay the incident and to portray his encounter with Hui as calm and conciliatory makes his evidence incredible and unreliable.

39.  According to the 9 November 2006 police statement which was given by Kuo (Hui’s colleague, who was present in the management office on 27 October 2006), Kuo stated that as soon as Lam entered the management office, Lam had demanded of Hui in a loud voice as to the impounding of his car.  According to Kuo’s account to the police, Lam used his right hand to pull Hui by his arm, and then pulled Hui by the front of his shirt and his tie, dragging him forward.  Kuo claimed that when Chan appeared, he used his right hand to push Hui on the chest.

40.  The other security guard present, Ng, accepted in his court testimony that he was not sure whether Hui had been “whisked away” to the front door, as Hui claimed in his witness statement.  Ng accepted that he had seen little of the Incident, and only had a very hazy memory of the Incident by the time of the trial - which is not at all surprising.  Yet, in the statement which Ng had given to the police shortly after the Incident on 9 November 2006, Ng had stated that Lam had lifted Hui, and dragged him forward for a few steps.  Ng also claimed in his police statement that when Chan appeared, he used his right hand to push Hui on the chest, which made Hui step back for 2 steps.

41.  Having reviewed the evidence, the account given in Hui’s witness statement may have been exaggerated, but Hui remained consistent in his claim from 28 October 2006 (when he gave his 1^st statement to the police) until trial that Lam had pulled him by his shirt, and had dragged him for a distance, which he claimed at trial to be 3 feet.  Hui is small in build, being approximately 5 feet 2 inches high.  Lam is taller than Hui.  In Lam’s state of agitation and annoyance, whose purpose of going to the management office was to make Hui accept that his car was not parked in a manner which caused obstruction, it is more likely than not that he would have insisted on Hui going with him to his house.  In all the circumstances as described even by Lam himself, I do not consider it credible that he would have taken hold of Hui’s shirt sleeve, in a pinching gesture, to persuade Hui to go with him.

42.  As for Chan, on his own evidence, the impression he had upon entering the management office was that there might be a fight, as (on his evidence) Lam was surrounded by several guards.  According to Chan and his wife (who arrived just after Chan did) there was a commotion involving loud noises.  On Chan’s own account, his objective was to separate Lam and Hui.  Chan claimed that he used his 2 hands to part Hui and Lam.  I do not believe, on Chan’s description, that a gentle parting would have been adequate to separate Lam and Hui, nor do I believe that Chan considered at the material time that a gentle parting would be adequate.  It is inherently more likely that Chan would have had to use a measure of force to push both Hui and Lam back.  Even Lam accepted in his testimony in court that Chan had pushed him and Hui, causing them to step back, although Lam claimed that this was a normal reaction. 

43.  Lam’s evidence therefore supports Hui’s claim that when Chan appeared at the management office, Chan had pushed Hui on the chest, causing Hui to take 2 steps back.  The accounts given by Kuo and Ng in their police statements of November 2006 are also consistent with Hui’s claim that Chan had pushed Hui once on the chest.

44.  It is true that in the accident report signed by Hui on 1 November 2006, he did not give a detailed account of how he was grabbed by Lam and dragged. The report was made by him to record his having sustained injuries in the course of work, and was filed with the Human Resources Department of WP.  Yet, even in this report, Hui had stated that Lam had used his hand to pull and drag him, that Chan had used his hand to push him, and that there had been “an entangle”, with hands involved (“用手糾纏”).

45.  Having considered all the evidence, I accept that Lam had used force to pull Hui for a distance of about 3 feet, and that Chan had pushed Hui in the area of his chest, in an attempt to make him back away from Lam.  As a result of Chan’s push, Hui had to take 2 steps backward. 

46.  I do not find it incredible that when the police arrived at the management office, Hui agreed to settle the matter and told the police so, as he did not feel particularly unwell at the time and did not wish to further damage the relationship between the owners and WP.  I accept Hui’s evidence that shortly after the police, Lam and Chan had left, he tried to return to his work but began to feel unwell and decided to go to the Hospital for a checkup. It is not uncommon for pain to be only felt some time after force has been exerted, and such pain may escalate as time progresses.  The Hospital’s records confirm that Hui was admitted at 11 pm on 27 October 2006, was diagnosed with “neck pain”, given analgesic balm, and given one day’s sick leave.  There is sufficient evidence to infer that the pain Hui complained of was caused by his encounter with Lam and Chan earlier that night.  Whether Hui suffered slight neck pain, or more serious multiple injuries as he later complained to the doctor in the early hours of 28 October 2006, I accept that Hui was injured as a result of the forceful pushing and pulling he encountered at the management office on 27 October 2006.

47.  I find nothing sinister in CK Chan visiting Hui at the Hospital, or his accompanying Hui to the police station to make his report when Hui decided to pursue his complaint of having been assaulted by Lam and Chan.  Nor do I accept that Hui had been instigated by CK Chan to make a false complaint about his injuries.  There is simply no evidence to suggest this, apart from the sheer allegation made by Chan and Lam that Hui had spoken to CK Chan on the telephone immediately after the Incident.  Hui’s evidence is that the person he had spoken to on the telephone was his immediate superior, Wu, and it is inherently more probable for Hui to report the Incident to Wu.

48.  On the evidence, I accept that Hui was attacked, and injured as a result. Some violence had been exerted on him.  However, I do not consider that a reasonable person of ordinary intelligence and general knowledge would consider that by reason of Hui having been forcibly dragged for 3 feet and pushed to the extent that he had to retreat 2 steps (as I have found), he had been “violently assaulted” or “violently hit” by Lam and Chan.

49.  To justify “暴力毆打”(“violently assaulted”), it has to be shown not only that violence had been exerted on Hui, but that there was “毆打”(“an assault”) as these words are generally understood, ie that Hui had been hit, struck or beaten.  It has to be shown that Hui had been hit, struck or beaten violently. I do not consider that this has been established to be true.

50.  I find, therefore, that the offending words “暴力毆打” “violently assaulted or hit” are not justified, but the offending words “遇襲受傷” “attacked and injured as a result” are justified. 

51.  The fact that the police did not initiate criminal prosecution against Lam and Chan is not evidence that Hui had not in fact been assaulted or attacked by Lam and Chan. 

Whether WP had a duty to issue the 1^st Letter and the 2^nd Letter and to publish the offending words complained of

52.  Cases of qualified privilege have been described as circumstances in which, on grounds of public policy, persons may make statements of fact about another which are defamatory and in fact untrue, without incurring liability for defamation (para 14.1, Gatley on Libel and Slander).  As the Court of Final Appeal explained in Cheng & Anr v Tse Wai Chun (2000) 3 HKCFAR 339 at 355:

“The rationale of the defence of qualified privilege is the law’s recognition that they are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of a particular information from a particular source …. Traditionally, these occasions have been described in terms of persons having a duty to perform or an interest to protect in providing the information. If … a person’s dominant motive is not to perform this duty or protect this interest, he is outside the ambit of the defence (of qualified privilege).”

The Court of Final Appeal affirmed in the case that, in the case of qualified privilege, the defence is defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged.

53.  The occasions of qualified privilege include one where the person who makes the statement has a duty (whether legal, social or moral) or interest to make the statement and the recipient has a corresponding interest or duty to receive it.  The duty or interest may be common to both parties, but this is not essential.  (Paragraph 14.6 Gatley on Libel and Slander) Whether there is a duty for the purpose of qualified privilege is a question of law ( para 14.15 Gatley on Libel and Slander).

54.  I fully accept that CK Chan, as the Chief Estate Manager of WP and in charge of WP’s portfolio of properties at the managerial level, has a legal duty to raise the Incident with the Committee, as the representative of the owners and residents of the Estate, for discussion.  A manager of WP had been attacked by 2 owners at the management office, in the course of his work and whilst implementing the Policy introduced by WP at the Estate.  WP, as managers of the Estate, had maintained the stance that they had a duty under the Deed and under the law to implement and enforce the Policy, to prevent obstruction of the common areas and private roads within the Estate.  No doubt they are right, although this is not a case for deciding on the effect of the terms of the DMC and the ambit of WP’s duties and powers under the DMC.  Hui had been subjected to force, to say the least, when he was carrying out his duties as the Senior Estate Officer in asking Lam to remove his car from the front of his house.  The Incident was not a personal dispute or quarrel between Hui and Lam, or Chan.  By Hui’s account, he was subjected to force and violence in the course of his work, and injured as a direct result.  According to the Hospital’s records which CK Chan said he had reviewed before issuing the 1^st Letter, Hui suffered neck injury or multiple injuries after the Incident.  As Hui’s employer, WP is in law liable for injuries sustained by Hui in the course of his employment.  WP is further entitled to seek indemnity or contribution from any third parties liable in respect of the injuries Hui sustained in work.  As Counsel for WP also pointed out, the owners were the occupiers of the Estate and had potential liability in respect of any injuries sustained by Hui in the management office.

55.  In my judgment, WP were indeed obliged to raise the Incident with the owners and the Committee, to ensure the personal safety not only of Hui, but of all other employees of WP who would be working at the Estate and who might be required in the future to enforce the Policy of impounding the vehicles of Lam, Chan and other owners in the house area and other parts of the Estate.  CK Chan was the senior officer of WP with responsibility for management of the Estate, and it was his duty, acting on behalf of WP, to bring the Incident to the attention of the owners of the Estate.  The natural thing to do would be for CK Chan to raise the Incident with the Committee and to ask for it and the Policy to be discussed at a meeting of the Committee, and this was precisely what he did in November 2006, by the issue of the 1^st Letter.

56.  The Committee had the duty and interest to be informed of the Incident, which involved 2 owners allegedly assaulting a manager of the Estate in the circumstances set out in paragraph 54 above.  Even if the Committee members did not believe the allegation to have been substantiated, as a responsible Committee tasked with the management of the Estate in liaison with the managers, they had the duty to consider the matter and to discuss it with WP.

57.  This case is totally distinguishable from the facts of Lee Man Kin v Wang Mei Chun & Ors HCA 2876/2003, unreported, 19 August 2005 which is relied upon by Leading Counsel for Chan and Lam.  There, the Court held that a sub-committee of owners of one of the residential blocks of an estate, which did not have power to manage the common areas and common facilities or to enforce the provisions of the DMC of the estate, was “not the organ to receive and deal with complaints by one owner made against the other”.  The sub-committee in question had very limited jurisdiction or powers under the applicable DMC, and the dispute or complaint which the Court held that the sub-committee had no power to deal with in the case concerned an argument between 2 residents as to the correspondence exchanged between them, and the manner of the plaintiff’s insertion of a letter into the defendant’s letter box in the building.

58.  The Committee in this case has the power to deal with matters relating to the management of the common areas of the Estate.  The Incident arises out of Hui’s execution of his duties and the duties of WP in the management of the Estate under the DMC.  CK Chan sought to raise for discussion at the Meeting not only the alleged assault of Hui, or the dispute which had erupted between Hui and Lam or Chan in the management office, but also the general issue of the personal safety of WP’s frontline employees in the course of their work within the Estate, and the Policy to be enforced by such employees.  The Committee members had the legal duty and interest to receive the statements containing the offending words, for consideration at the Meeting. 

59.  The existence of the duty on CK Chan’s part on the one hand, and on the Committee’s part on the other hand, cannot be negated, removed or diminished simply by the mere refusal by the Chairman or any Committee member to consider the matter, or their erroneous belief that the Committee should not, or could not, deal with the matter. 

60.  WP decided to resign as managers of the Estate as a result of the Incident, as they felt that the personal safety of their frontline staff had been seriously threatened, and that their execution of duties had been obstructed.  For the reasons set out in paragraph 54 above, I am satisfied that WP had the duty or interest to explain to the residents of the Estate the reason for their resignation as managers after 3 years of service.  The fact that WP had the power to terminate their management agreement by service of 6 months’ notice does not mean that WP did not have the interest to inform the owners of the reason for their termination of service, or that the owners did not have the interest or duty to be informed that the Incident was considered by WP to be a reason for their resignation.

61.  The passage in paragraph 17.11 of Gatley on Libel and Slander relied upon by Leading Counsel for Chan and Lam, that charges of crime will only be privileged if made with the honest desire of promoting investigation into the alleged crime or prosecuting the alleged offender, should be read in the proper context.  The passage and the cases cited there apply where no other legal duty or interest exist for the maker to make the statement.  In the present case, WP and CK Chan clearly have a duty, as the managers appointed under the DMC and as the employer of Hui and other frontline security staff at the Estate, to make the statements. 

62.  To conclude, I am satisfied that WP had the duty and interest to issue the 1^st Letter and the 2^nd Letter and to publish the offending words complained of, and that the Committee and the residents of the Estate had the duty and interest to receive the same letters and the offending words.

Whether CK Chan was acting under an improper motive when he issued the 1^st Letter and the 2^nd Letter and published the offending words complained of

63.  The burden is on Chan and Lam to prove, on a balance of probabilities, that there was malice on CK Chan’s part, to defeat the defence of qualified privilege. 

64.  As explained in Cheng & Anr v Tse Wai Chun (2000) 3 HKCFAR 339, in the context of qualified privilege, malice simply means that the defence cannot be relied upon if the defendant had used the occasion for some purpose other than that for which the occasion was privileged.  The leading authority for qualified privilege is the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135:

“The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognizes that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it is defamatory and turns out to be untrue. With some exceptions..., the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. “Express malice” is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive with which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.”

65.  The test therefore is whether it can be proved by Chan and Lam that in issuing the 1^st Letter and the 2^nd Letter and in uttering the offending words at the Meeting, CK Chan was acting under some dominant and improper motive to injure Chan and Lam, and not in furtherance of his duty or interest as the Chief Estate Manager of WP to raise the Incident and the issue of the personal safety of WP’s employees for discussion by the Committee.

66.  It is the case of Chan and Lam that the history of the dealings between WP and CK Chan on the one part and Chan, Lam and the Committee on the other part constitutes strong, if not overwhelming, evidence of malice.  They refer to the incidents in February, April and June 2006 described in the opening paragraphs of this Judgment.  They refer to the correspondence issued by or on behalf of CK Chan and Hui in August and November 2006.  They rely on the owners’ evidence on what was perceived as the arrogant, disrespectful and hostile attitude of CK Chan at the Committee meetings in September and October 2006.  They further draw attention to the hostile threats and what they regard to be unreasonable demands made in letters issued by WP’s solicitors acting for Hui in May and July 2007.  All these, it is claimed, demonstrate that CK Chan was motivated by and acted under a desire to exact revenge against Chan and Lam for the complaints which the owners or the Committee members had made against WP and their management staff.  They also rely on what Hui had allegedly informed the owners in October 2006, that the Committee members had “angered” or “offended” CK Chan, and that this was the reason why the Policy was being enforced. 

67.  I can see from the correspondence and from the evidence that the relations between the Committee members and the WP management team in 2006 were far from cordial.  WP’s implementation and enforcement of the Policy brought the final breakdown to the already tense and fragile relationship.  It is obvious that CK Chan did not have a pleasant or easy task on the occasions when he attended meetings with members of the Committee on affairs of the management of the Estate. 

68.  However, CK Chan was only doing the job which he was employed, and paid, by WP to do.  According to the evidence, the Estate was only one of many estates that were under CK Chan’s charge.  He was one of the three Chief Estate Managers in charge of managing the portfolio of properties managed by WP.  According to the evidence of CK Chan, the Estate only occupied about 5 to 10% of his time and workload.  He was not stationed at the Estate.  Hui was the on-site manager at the Estate, but CK Chan was not Hui’s immediate superior, as there were two more levels of personnel between him and Hui.  Hui did not have to report directly to CK Chan in relation to matters of the Estate.  CK Chan’s evidence is that he did not have to attend regular meetings of the Committee.  He did not have to read or approve all documents relating to the Estate.  Some of the letters relied upon by the owners as evidence of CK Chan’s malice were in fact issued by Hui, and not by CK Chan.  If there were problems arising from the day-to-day management of the Estate, I see no reason why CK Chan would have to take personal responsibility, or be personally blamed by WP or his superiors.  It is only the owners’ speculation that CK Chan had been embarrassed by the letters issued by the Committee to WP.  Even if CK Chan was annoyed, or offended, by the owners or the Committee members as a result of his work at the Estate, I find it improbable and far-fetched for Chan and Lam to suggest that CK Chan would personally take it upon himself to issue statements for his own and dominant purpose of injuring, or getting back at Chan and Lam.  Objectively and dispassionately considered, there was no need for him to do so.

69.  I may add that Chan and Lam have also claimed that evidence of CK Chan’s malice can be found in his failure to inform the residents and the Committee members that by 17 December 2006, the police investigations into the Incident had been concluded without any criminal prosecution.  In this respect, I accept CK Chan’s explanation that the Chairman had already informed all residents of this fact and of the letter which Chan had received from the police to confirm the conclusion of investigations, when the Chairman issued his letter dated 4 January 2007 to all residents.

70.  As Counsel for CK Chan has highlighted, the Court is slow to draw the inference that a defendant was so actuated by improper motives as to deprive the defendant of the protection of the privilege, unless the Court is satisfied that the defendant did not believe that what he said or wrote was true, or that he was indifferent as to its truth or falsity.

71.  It was strenuously argued on behalf of Chan and Lam that CK Chan had no belief in the truth of his statements, or was totally reckless.  It was pointed out that CK Chan had never asked Chan and Lam for their account of the Incident before issuing the 1^st Letter, and that he had no basis to claim that Chan and Lam had violently assaulted Hui, or that Hui was injured as a result.

72.  It is CK Chan’s evidence that prior to issuing the 1^st Letter, he had heard Hui’s account of the Incident and had reviewed the Hospital records, as well as the police statements made by Hui, Kuo and Ng.  His evidence is that the offending words properly described the Incident, on the basis of what he knew.

73.  Again, in the words of Lord Diplock in Horrocks v Lowe, at page 149 of his judgment:

“The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In according to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertainable by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they have reached are true. The law demands no more.” (Emphasis added)

74.  Lord Diplock aptly stated what needs to be said on the facts and the evidence in this case.  Even if it can be said that CK Chan had carelessly, impulsively or even unreasonably arrived at his conclusion, swayed perhaps by some prejudice in favor of his subordinates, that Hui had been “violently assaulted” or “attacked” by Chan and Lam and “injured” as a result, I believe that he honestly and positively believed that the conclusions he reached on the materials he had received were true.  That is all that the law demands of him.

75.  Overall, I am not satisfied that an inference can be drawn from the available evidence that at the time when he published the allegedly defamatory statements, CK Chan was acting under the improper motive of taking revenge against Chan and Lam for what they may have done in the past, or of injuring Chan and Lam.  In this regard, I bear in mind that what has to be established is that such improper motive is the “dominant” motive, for the defence to be excluded.  On the facts of this case, I am satisfied that CK Chan’s dominant motive was the proper discharge of his and WP’s duties of securing the personal safety of their front-line staff in their work at the Estate, and to explain WP’s resignation as the managers of the Estate.

76.  The other arguments raised on the basis of the unreasonable maintenance of a defence of justification lose force since I have found that the offending words “attacked and injured” are substantially justified.

The damages payable to Chan and Lam if their claim of defamation succeeds

77.  The issue of the damages payable to Chan and Lam falls away in view of my finding that CK Chan has a defence of qualified privilege.

The counterclaim

78.  As for the counterclaim, the assertions made by Chan and Lam that CK Chan had defamed them by concocting or fabricating a serious allegation of assault or battery against them fail, since CK Chan has a good defence in defamation.  It follows that Chan and Lam had, by publishing the 2 letters dated 25 and 26 December 2006, defamed CK Chan.  CK Chan only wishes to be vindicated and is happy with any award of damages which the Court deems fit to make in his favour.  I will accordingly make a nominal award of damages, in the sum of $5,000 to be paid by each of Lam and Chan to CK Chan. 

Orders

79.  The claims made by Lam and Chan for defamation are dismissed.  An award of $10,000 in total is made in favor of CK Chan on his counterclaim.  I will make an order nisi that Lam and Chan are to pay to CK Chan the costs of the main action and of the counterclaim, to be taxed if not agreed, with certificate for counsel. 

80.  It is indeed unfortunate that the parties had considered it necessary to resort to hostile litigation to resolve their dispute, which is rooted in their disagreement over how the Estate should be managed in a manner which is conducive to a harmonious, safe and pleasant home environment.  In deciding to bring the matter to the courts, they have had to spend substantial legal costs and devote time and energy which can be more fruitfully used elsewhere. Hopefully, they can now walk away from this, feeling that they have at least ventilated some of their grievances in open court.  However, it is high time parties recognized that litigation is neither a game, nor a tactic, to be played.