KWAN SIU WA, BECKY v. MARLA SUSILO

DCCJ 5396/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5396 OF 2007

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JUDGMENT

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Introduction

1.  This is a libel action.

2.  The Cathay Pacific Flight Attendants Union (the “FAU”) was formed in 1975.  At the material times in 2007,

(a)  the Plaintiff was the chairman of the FAU; and

(b) the Defendant, a member of the executive council (the “Exco”) of the FAU.

3.  On 6 December 2007, the Plaintiff commenced the present proceedings against the Defendant.

The Plaintiff’s case

4.  The Plaintiff complained that the Defendant had published 2 defamatory e-mails against her to a number of cabin crews, including the non FAU members.

5.  In relation to the 1^st e-mail (see attachment 1), it was

(a)  published from an anonymous account on 12 August 2007;

(b) re-published from the account of Ms. Ardiana Sukarsih (“Ardi”), an Indonesian friend of the Defendant, on 14 August 2007; and

(c)  further re-published from the account of Ms. Vera Wu (“Vera”), the honorary secretary of the Exco at the material times, on 18 August 2007.

6.  It was said that the 1^st e-mail, in their natural and ordinary meaning, or by way of innuendo, meant:

7.  As to the 2^nd e-mail (see attachment 2), it was also published from the Defendant’s own account on 2 September 2007.

8.  By the natural and ordinary meaning of, or by way of innuendo, the underlined words in the 2^nd e-mail meant:

9.  The Plaintiff found her being seriously defamed and injured in credit, integrity, reputation and feelings. She asked for, inter alia, injunctive relief and damages, including exemplary damages because of, among others, the improper motive of the Defendant in sending out the two e-mails.

The Defendant’s case

10.  The Defendant denied that the 2 e-mails were defamatory.

11.  She further said that:

(a)  she published them from her own account and did not hide her identity;

(b) they were true in substance and in fact; and

(c)  they were published on an occasion of qualified privilege.

Preliminary Issues

12.  Three preliminary issues of discovery were brought up when the parties appeared before me at trial.   

(a)  The Defendant asked to adduce 3 new documents to support her defence of qualified privilege. She said that they could prove that the internal newsletter of the FAU, namely, the Infauline, was in fact distributed to all cabin crews, not just the FAU members.

(b) The Plaintiff opposed to (a). Further, she sought to adduce 4 pictures about the mail box of the cabin crews, trying to demonstrate that the Infauline would only be distributed to the FAU members. It was said that a sticker of “FAU” was put on the mail box of the FAU members and the Infauline and communications were only distributed accordingly.

(c)  The Plaintiff also asked to adduce 2 e-mails between the Defendant and an ex-cabin crew, Ms. Eperanza Lajom (“Espie”). The Defendant warned Espie. Once the present proceedings were over, she might actually consider suing Espie for defamation.

13.  To avoid the wasting of time and costs, I allowed all the documents to be admitted on a de bene esse basis at the trial. After thought, I take the view that the documents are relevant to the issues between the parties. Although they were late, discovery is certainly a continuing obligation of the part of the parties. I further see no prejudice suffered by either the Plaintiff or the Defendant by allowing the late discovery to be put before this Court. Costs of the three applications were made costs in the cause.      

The issues

14.  Parties agreed the following 5 issues in dispute:

“1. Issue on Publication

(a) Whether the email sent by the Defendant to a group of cabin crew on 12 August 2007 (“the First Email”) contained the statements as alleged by the Plaintiff?

(b) Whether the Defendant republished the First Email to the same group of cabin crew on 14 August 2007 and 18 August 2007?

(c) Whether the email sent by the Defendant to another group of cabin crew on 2 September 2007 (“the Second Email”) contained the statements as alleged by the Plaintiff?

(d) Whether the Defendant used her own email account to send the First Email on 12 August 2007; and

(e) Whether the Defendant signed the First Email with her own name.

2. Issue on Meaning

(a) If the First Email contained the statements as alleged, whether those statements were defamatory of the Plaintiff?

(b) If the Second Email contained the statements as alleged, whether those statements were defamatory of the Plaintiff?

3. Issue on Defence of Justification

(a) If the First Email contained the statements as alleged, whether those statements were true as a matter of fact?

(b) If the Second Email contained the statements as alleged, whether those statements were true as a matter of fact?

4. Issue on Defence of Qualified Privilege and Malice

(a) If the First Email contained the statements which were defamatory of the Plaintiff, whether those statements were published on an occasion of qualified privilege?  If so, whether the defence did not avail the Defendant due to malice on her part?

(b) If the Second Email contained the statements which were defamatory of the Plaintiff, whether those statements were published on an occasion of qualified privilege?  If so, whether the defence did not avail the Defendant due to malice on her part?

5. Issue on Compensation

(a) If defamation is provided, what compensation should be awarded to the Plaintiff?”

    (Agreed Issues filed herein on 11 January 2010)

15.  Parties’ respective Counsel, Mr. Wong and Ms. Yiu appeared before me at the pre-trial review.  Upon hearing from them, I directed, inter alia, that the aforesaid 5 issues still held valid, without prejudice to the Defendant’s right to rely on further sub-issues identified by Ms. Yiu. Indeed, I found the said 5 issues concise and precise to help identifying the real controversies between the parties.   

The witnesses

16.  To answer the issues and/or sub-issues, apart from issue 2, one has to assess the available evidence before the Court.  Quite some documents were adduced by the parties.  No one challenged their authenticity, although Counsel submitted different interpretation upon them.  As to witnesses, the Plaintiff adduced 3 statements, she herself and two of her colleagues, Vera, and Ms. Lucy Ching Chuen Walker (“Lucy”), one of the Exco member of the FAU from 2001 to 2005. However, Vera was not able to come to the Court to testify.  On the other hand, the Defendant was her only witness and she had prepared 2 statements.

17.  As usual, both Counsel asked this Court to accept the evidence of his or her client and to reject those of the other side.  Upon consideration, on balance, I take the view that the evidence of the Plaintiff and Lucy are preferred to that of the Defendant.

(a)  Ms. Yiu told me that both the Plaintiff and Lucy had been evasive in the box.  I respectfully disagree.  They were only guarded, to the skilful cross-examination of Counsel.  They took time to listen carefully, think and answer the questions put to them.  When they were not sure about the questions, they chose to stick to their witness statements.

(b) The credibility of the Plaintiff was also attacked upon some comments or remarks made upon her by a High Court Judge in another case.  I refuse to accept such proposition.  The matter has never been an issue in the present proceedings and whether her evidence is to be accepted by this Court has to be resolved within the evidence of the present proceedings.

(c)  Ms. Yiu tried her very best to persuade me to accept the evidence of the Defendant, including submitting that she remained open and answered all questions in cross-examination as well as were willing to “eat a humble pie” by admitting certain parts of the e-mails could not be substantiated as true by hindsight.  It might well be so, as far as her performance in the box.  However, the difficulty with Ms. Yiu is that her witness acted in a completely different way, as revealed by the contemporaneous documents.

(d) The credibility of the Defendant was almost completely destroyed by the reveal of the communications between the Defendant and another Exco member, Ms. Sukumal Kanjantawewal (“Maew”) in about late August and early September 2007.

(e)   The credibility of the Defendant was even further damaged. She told this Court in the box that she felt stressful by the present proceedings, but she issued the following e-mail to another ex-colleague 2 days before the trial.

“Dear Espie,
Good morning and happy new year to you. My name is Marla, I am sure you remember me through the letter that you sent accusing me of damaging FAU and Becky.
As I am sure you know, I have a defamation suit against me from Becky, through all this I learnt that actually your letter has a lot more weight in being defamatory than mine.  So once my suit is over, I might actually consider suing you for demoing me, so I thought I just give you the heads’ up …..”

18.  Hence, without prejudice to the findings described below, on balance, briefly, I agree to accept the case of the Plaintiff, including that the sponsorship for her to study legal studies were unanimously approved by the executive committee according to the rules of the FAU. She did so for the FAU, not herself. When the question of the sponsorship was raised by the Defendant, the Plaintiff did try to explain and locate document of proof. However, the relevant minutes could not be located although some indirect materials were made available. Therefore, the Defendant issued the 2 e-mails as the Plaintiff described. It aroused discussion within the community of the cabin crews and the same affected the feelings and integrity of the Plaintiff. The Infauline and other similar communications were only distributed to FAU members only.

19.  On the other hand, as to the Defendant, again on balance (and I remind myself that it is her motive being concerned), I refuse to accept her explanation. She did send the 1^st e-mail by an anonymous account, trying to hide her identity at the beginning, but only found that unnecessary to do so later. She sent out the 2 e-mails not for the purpose of asking for transparency and/or asking the members to draw their own conclusions. She did not give a comprehensive account of what had happened. In the 1^st e-mail, she did not tell the explanations having offered by the Plaintiff. In the 2^nd e-mail, she did not attempt to verify the allegations made against the Plaintiff. She wanted the Plaintiff to step down from the leadership of the FAU.   

20.  I now move to answer specifically the parties’ agreed issues.    

Issue 1: Publication?

21.  There was no dispute on the publication of the 2^nd e-mail as the Defendant conceded on it.

22.  There was also no dispute on the further re-publication of the 1^st e-mail on 18 August 2007 from the account of Vera as the Plaintiff had decided not to pursue it.

23.  There was largely no dispute on the re-publication of the 1^st e-mail on 14 August 2007.  It was because the Defendant admitted that she had asked Ardi to forward it to other Indonesian cabin crews.  She only raised that Ardi had sent the same to 2 non-FAU members, and it was unknown to her.

24.  Finally, as to the publication of the 1^st e-mail on 12 August 2007, I take the view that there was in substance no dispute between the parties.  It was because the Defendant agreed that she did send a similar e-mail on the date, in her own name, under her own e-mail account to some FAU members according to a list provided to her.  She did not hide her identity because she had never been the one who threw a stone and hidden behind the wall.

25.  However, I have not only decided to reject her evidence generally, but also seen the contemporaneous communication between her and Maew behind the back of all others.  Last, but not least, I find Mr. Wong’s analysis in his closing submissions agreeable.

“6. If one compared MS’s email in Crystal’s reply with the Anonymous Email, one can see that the following differences:-

	MS’s email in Crystal’s reply	Anonymous Email
(a)	“As an former Exco (joined July 2007 & resigned August 2007) & member of the Union, …..” (paragraph 4)	“Personally, as a member of the UNION, …..”
(b)	“..... Demand Accountability!  Lets ask for accountability, return the money and change leadership, if we have no confidence in the current one!” (paragraph 9)	The paragraph ended at “Demand Accountability”
(c)	“FAU will say that Our Chairwoman will dedicate herself to be the FAU consultant, once she no longer work for Cathay, what was not mentioned was that FAU will have to pay for those services, in effect FAU pays for her study, so that FAU will have the privilege (sic) to have her work as a consultant in the future and pay her a salary, ensuring her a stable income after Cathay” (paragraph 10)	The paragraph did not appear in Anonymous Email
(d)	“Marla Susilo” at the bottom of the email	“From a Concerned Member”

7.      …..

9.      First of all, if, as suggested by MS, the sender of the Anonymous Email only wanted to forward MS’s email to other people without revealing her identity, all she needed to do was to simply to send it out through the fictitious email account “plscallfau@gmail.com” (which, as suggested by the name, was created for that particular purpose) and no one would know who was the sender.  It was not necessary for the sender to replace MS’s name by “From a Concerned Member”, let alone editing out other parts of MS’s email.

10.    Secondly, it is obvious that the editing, particularly at paragraphs 8(a) and 8(c), was made for the specific purpose of concealing the fact that the sender was a member of the Exco.  If the sender of the Anonymous Email only wanted to conceal her own identity, why would the sender bother to make so much effort to protect MS by editing out the parts that could reveal MS’s identity, particular when, as alleged by MS, she had already sent the email in her own name?  The only explanation is that the sender of the Anonymous Email was a member of the Exco who wanted to conceal her identity and this person could be no one but MS.

11.    …..

12.    Thirdly, MS was unable to produce the email allegedly sent on 12 August 2007 in its original form.

13.    ….. MS was informed by the letter dated 5 October 2007 from the Plaintiff’s solicitors of the Plaintiff’s allegation that she had deliberately concealed her identity in sending a defamatory email on 12 August 2007 [C721-723].  The said letter was sent within 2 months from the publication of the email.  In other words, MS should be able to retrieve it from the system, if she so wished, in order to rebut the allegation…..

14.    Even assuming (without accepting) that MS failed to retrieve the email sent on 12 August 2007 for an innocent reason before it was erased, given the wide circulation of the email, one would expect that it would be easy to produce a copy in its original form in replies from other cabin crews …..

15.    Furthermore, if the Anonymous Email were sent by a member who simply wanted to forward MS’s email to her friends, then it was an odd coincidence that ALL 87 recipients of the Anonymous Email happened to be on the Email List (see paragraph 47 below).  By contrast, two out of the 19 recipients of Ardi’s Email were not on the list (see paragraph 48 below).  It is respectfully submitted that this fact strongly suggested that the sender had copied the email addresses directly from the Email List.

16.    Taking everything into consideration, it is more probable than not that the events happened as follows; MS originally wanted to conceal her identity because she did not want the Exco to have any direct evidence on her sending the email and therefore she sent the Anonymous Email on 12 August 2007.  That explains (a) why the Anonymous Email did not contain the part that could hint that the sender was a member of the Exco, (b) why all 87 recipients were on the Email List, and (c) why MS was unable to produce the email that she allegedly sent on 12 August 2007 in its original form with correct date and time.  Later, MS did not find it necessary to conceal her identity any longer or could not conceal her identity any longer.  She therefore edited the Anonymous Email and sent it to Ardi and Crystal on 13 and 14 August 2007 respectively.  When she sent the email to Ardi, MS made 3 changes (see paragraph 6(a), (b) and (d) above).  She made a further change (see paragraph 6(c) above) when she sent another email to Crystal.  In other words, she kept adding new information to the email in the course of sending out.  That explains why there were different edited versions of the Anonymous Email.”

26.  In conclusion, I will answer the Issue on Publication in the followings:

(a)  Yes.  The 1^st e-mail did contain the statements as claimed by the Plaintiff.

(b) Yes. The Defendant did republish the 1^st e-mail on 14 August 2007 when Ardi forwarded the same to 19 Indonesian cabin crews. The further republication on 18 August 2007 is no longer relevant.

(c)  Yes. The Defendant did send the 2^nd e-mail to another group of cabin crew on 2 September 2007 as claimed by the Plaintiff.

(d) No.  The Defendant only sent the 1^st e-mail under an anonymous account to a group of cabin crews on 12 August 2007.

(e)  No. The Defendant did not sign the 1^st e-mail with her own name.

Issue 2: Meaning of the e-mails?

27.  The Plaintiff complained that the e-mail carried defamatory imputations.  The 1^st e-mail carried 9 stings and the 2^nd one, 12.  They are recapped under paragraphs 6 and 8 of the present Judgment.

28.  The Defendant did not admit to any of the alleged imputations.  She only agreed that the 1^st e-mail bore 2 imputations only, namely:

“(1) P had used the FAU fund without proper authorization of members …..;

    (2) P had not informed the members openly about this matter.”

(Paragraph 69 of Ms. Yiu’s closing submissions)

29.  To decide on the parties’ dispute, I have to rely on myself, wearing the hat of the jurors.  In so doing, Mr. Wong kindly referred me to the case of Lee Ching v. Lau May Ming [2007] 3 HKLRD 623 when the Hon Poon J. summarized the relevant principles:

“39. First, the words complained of in a libel action are to be construed in their natural and ordinary meaning, i.e. in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs would be likely to understand them. The question is what would the words convey to the mind of the ordinary, reasonable, fair-minded reader? See Gatley on Libel and Slander, 10^th Edn, para. 3.15 at pp. 92 and 93.

40. Second, the ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond the general knowledge but is a meaning which is capable of being detected in the language used can be part of the ordinary and natural meaning. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special bout only by general knowledge, and not fettered by any strict legal rules of construction would draw from the Words : Jones v. Skelton [1963] 1 WLR 1362, per Lord Morris at pp. 1370-1371, quoted in Gatley, para. 3.16 at p. 94.

41.      Third, it is necessary to take into consideration, not only the actual words used, but the context of the words and the persons to whom the communications were made : Nevill v. Fine Arts & General Insurance Co. Ltd. [1987] AC 68, pr Lord Halsbury LC at p. 72.”

30.  Further, paragraph 2.28 of Gatley on Libel and Slander, 11^th ed, (2008), states that:

“It is defamatory to impute to a person in any office, any corrupt, dishonest, or fraudulent conduct or other misconduct or efficiency in it, or any fitness or want of ability to discharge its duties, and this is so whether the office be public or private, or whether it be one of the profit, honour or trust.”

31.  In the capacity of an ordinary FAU member, how would I understand the 1^st e-mail?  My answer is that: One of our colleagues is making a complaint against our chairman.  She has studied law for 5 years, using our union’s fund. However, it is violating the rules.  She has tried to hide such fact from us.  Becky is going to retire and she is thinking about herself only, not us.  We should be joining together and ask her to step down.

32.  With the above understanding, I can read more into the e-mail than the 2 concessions made by the Defendant.  I agree with the imputations at paragraph 6(a), (b), (d), (e), (g), (h) and (i).  As to the remaining (c) and (f), they are not apparent from a reading of the e-mail.

33.  What about the 2^nd e-mail?  It is quite a lengthy e-mail. My reading and understanding is:

(a)  To follow up the 1^st e-mail, Becky has tried and will try to justify her study by an approval at one meeting of the Exco in 2002.  However, no document has been found at all since the confrontation 3 months ago.  I do not trust Becky and so I have resigned from the Exco.  She has been studying law at our expenses for her personal benefit.  She will become our consultant after her retirement.

(b) Becky has been using our money as she pleases, including charging us fees for union work, acting against lawyer’s advice causing the FAU to lose millions of dollars, incurring entertainment expenses without explaining the details, and so forth.

(c)  I resigned from the Exco because I did not trust Becky.  Her integrity is in question.  She is confrontational.  She has habit of making unsubstantiated allegations.  She will tell lies after lies to cover up her mistake.  Our union does not need her.

(d) Formal complaint has been lodged and we shall stand up to ask Becky and her Exco to step down.

34.  The Defendant did not put any positive case to the Plaintiff’s suggested imputations.  With the above reading of the 2^nd e-mail, with the obvious tone and choice of strong wordings, I cannot agree more on the 12 stings proposed by Mr. Wong.

35.  Probably, it goes without saying that the 2 e-mails will tend to lower the Plaintiff in the estimation of right-thinking FAU members generally, or be likely to affect her adversely in the estimation of reasonable FAU members generally.  Indeed, it appears that almost all sorts of bad things, including corrupt, dishonesty, fraudulent conduct, misconduct, low efficiency, unfitness and lack of ability have been imputed to the Plaintiff.

36.  To conclude my answers to Issue on Meaning of the e-mails, they are:

(a)  Yes. The 1^st e-mail did contain defamatory statements to the Plaintiff.

(b) Yes. The 2^nd e-mail did also contain defamatory statements to the Plaintiff.

Issue 3: Justification?

37.  Were the aforesaid imputations true?

38.  Ms. Yiu has been trying her very best to look for available evidence she managed to get at cross-examination of the Plaintiff to justify at least some of the Defendant’s case.

39.  However, it suffices for me to conclude that such defence is bound to fail.  As pointed out by Mr. Wong in his closing submissions,

“40.    The Defendant relies heavily on the Rules of FAU (“the Rules”) and argues that two imputations admitted by the Defendant in the First Email (i.e. BK had used the FAU fund without proper authorization of members and BK had not informed the members openly about this matter) were justified because the Rules required members’ approval on the sponsorship and it was a fact that BK did not inform members about the sponsorship before the publication of the First Email.

41.    With respect, the argument is wholly misconceived and is made on the wrong footing.  It is true that the First Email mentioned BK’s failure to obtain members’ prior approval on sponsorship.  However, as submitted above, the imputations contained in the First Email were much wider than the Defendant is willing to accept.  The message that MS wanted to bring out in the First Email was that BK had misappropriated FAU funds for her legal study without any kind of authorization and deliberately withheld information in relation to sponsorship from members (because she did not want them to know it), and the purpose of her study was not for the interest of FAU or its members but for her own personal interest (i.e. to secure an employment after retirement).  It was these imputations (as particularized at paragraph 30 above) that the Defendant needed to justify.

42.    It is clear that there is nothing that the Defendant could rely on to justify those imputations.  First of all, there was no disagreement between MS and BK that the sponsorship required approval.  The disagreement was on whether the proper authority to approve the sponsorship rested on the Exco (as suggested by BK) or AGM (as suggested by MS).  Even if MS was right in the interpretation of the Rules, there was simply no justification to impute BK misappropriating FAU funds for her legal study without authorization.  Secondly, BK’s stance was that the Exco had the authority to approve the sponsorship and therefore she did not raise the matter of sponsorship in any AGM.  There is completely different from saying that BK deliberately withheld information from the members because she did not want the members to know it.  Thirdly, as admitted by MS, BK never said that she wanted to be the consultant of FAU after her retirement, let alone whether the legal study was intended to achieve that purpose.  The suggestions of employing BK as a consultant of FAU after her retirement actually came from other Exco members.  The imputation that she studied law in order to secure an employment after retirement is clearly unjustified.

43.    Likewise, the Defendant’s argument in respect of the Second Email is also misconceived.  The facts relied on by the Defendant (i.e. Exco never consulted members on the salary difference and the launch of new website, and the entertainment expenses were not itemized in the annual reports) do not assist the Defendant since the imputation contained in the Second Email (as particularized at paragraph 35 above) went further than that.  The overall impression that MS wanted to create in the Second Email was that BK was a liar (in making up the Exco approval and the excuse that the minutes might have been destroyed) and had constantly misused the FAU funds (in addition to the sponsorship) for her own benefit for many years in the past. Once again, it is clear that there is nothing that the Defendant could rely on to justify those imputations.”

40.  Therefore, I will give two negative answers to Issues 3(a) and (b).

Issue 4: Qualified Privilege and Malice?

41.  Mr. Wong agreed to accept that the Defendant would be entitled to the defence of qualified privilege if the recipient was a member of the FAU.  Parties disputed only narrowly on the exact identity of a few recipients on the 2 e-mails as one could not be sure about the same on a mere reading of the e-mail address.

42.  Ms. Yiu, on the other hand, tried to help her client’s case by introducing a number of sub-issues in the area.

43.  Upon consideration of their argument, I take the view that the defence of qualified privilege is not available to the Defendant.

(a)  Once malice or improper motive has been established, the defence of qualified privilege vanishes.

(b) The principles summarized in Gatley which was referred to in Albert Cheng v. Tse Wai Chun Paul [2000] HKCF AR 339 are respectfully adopted:

“(1) Improper motives

(a) There is some special reason of public policy for giving immunity in all cases of qualified privilege. If the maker of a statement uses the occasion for some other reason he loses the protection of the privilege.

(b) The defendant is entitled to be protected unless some dominant improper motive on his part is proved.

(c)(i) The usual motive relied on is that of injuring the claimant, but there may be others.

    (ii) Knowledge that a statement will injure the claimant does not destroy the privilege if the defendant was using the occasion for its proper purpose.

(2) Absence of honest belief

(a) If it can be proved that the defendant did not believe that what he published was true, that 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”. The burden of proof, at least where conduct extraneous to the privileged occasion is not relied on, is not a light one.

(b) If the defendant publishes untrue matter recklessly, without considering or caring whether it be true or not, he is treated as if he knew it to be false, but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to truth.

(c) There are exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue; he is not then malicious.

(3) Positive belief

(a) Positive belief in the truth of what is published will usually protect the defendant unless he can be proved to have misused the occasion. Judges and juries should be slow to draw the inference that he had misused the occasion, and the defendant’s desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found.

(b)   Where the defendant believes in the truth of what he has published and conduct extraneous to the privileged occasion is not relied on, the claimant can only succeed if he shows that the publication contains irrelevant matter, and that it can be inferred that the defendant did not believe it to be true or realised that it was irrelevant, and brought it in for some improper motive.  Judges and juries should be slow to draw this inference too.”

(c)  The existence of malice or improper motive is apparent from the communications between Maew and the Defendant, as extracted from paragraph 17(d) above.  They aimed at dissolving the Exco and get rid of the Plaintiff from the FAU.

(d) Clearly, Maew fed the Defendant with information and allegations at the material time and the later adopted most of them in the 2^nd e-mail to attack the Plaintiff.

(e)  I remind myself that I should be slow in finding and/or drawing inference on the question of malice or improper motive against the Defendant.  However, as suggested by Mr. Wong, the Defendant’s conduct was totally inconsistent with what she claimed to believe or to be.  She could not be honestly or positively believed what were stated in the 2 e-mails.

(i)   She told me that she wanted to promote transparency of the operation of FAU only. However, after resignation, she worked with Maew at the back of all others.

(ii)   She admitted at cross-examination that she should present a full and fair picture to the members so that they could decide by themselves.  However, she did not tell the explanation of the Plaintiff clearly or at all in the e-mails.

(iii)   With the secret assistance from Maew, she noted that the Plaintiff was trying to explain to the members in writing soon.  However, she did not wait for the Plaintiff to do so but “pre-empted” her by publishing the 2^nd e-mail, “trying even to make it ‘big’ by putting as many issues relating to the use of FAU funds” (paragraph 67 of Mr. Wong’s closing submissions).

  (iv)   Ms. Yiu suggested that the Defendant she should have stayed in the Exco if she had the “improper motive”.  It had at one stage sound reasonable to me.  However, upon thought and reviewing the e-mails again, I noted that the Defendant had mentioned a number of times therein that she had to resign from the Exco because of the loss of confidence, trust, and so forth.  There is really another more convincing way of looking at such conduct, as suggested by Mr. Wong in his closing submissions:

“72. ….. It is obvious that in order to pursue the hidden agenda, they needed one person to stay in the Exco to collect information and another person to stay outside the Exco to do the publication. As indicated by Maew, she would be expelled from Exco if she openly disagreed with the stance of Exco. Therefore, the improper motive could not be effectively carried out if both of them stayed in the Exco.”

(v)   Of course, I have not forgotten my earlier finding that the Defendant did send an anonymous e-mail on 12 August 2007.

44.  Again, I will also give 2 negative answers to Issue 4, namely, due to malice and/or improper motive on the part of the Defendant, the defence of qualified privilege cannot be relied upon by her.

Issue 5: Compensation?

45.  I now come to the final issue as identified by the parties, namely, the appropriate relief that should be ordered by the Court in the circumstances.

46.  Mr. Wong asked for an injunction.  I agree that it is a suitable relief, having taking into account of the anonymous e-mail and the e-mail sent by the Defendant 2 days before the present trial.

47.  As to damages, I note the followings:

(a)  Mr. Wong asked for general compensatory damages.  He said that the defamation was serious because it attacked on the Plaintiff’s honesty and integrity.  The range of publication was wide and there were malice and improper motive on the part of the Defendant.

(b) He also asked me to exercise my discretion for the Plaintiff aggravated damages when she only pleaded exemplary damages.

(c)  The Plaintiff did not adduce evidence to show the extent of damage done to her by the 2 e-mails and/or to try to quantify the damages she sought.

(d) Ms. Yiu asked me to take into account of various mitigating factors, in case that the Defendant failed on the liability issue.  They included that the e-mails were only sent to 100 odd recipients as compared to 7,000 members in the FAU.

(e)  Ms. Yiu also kindly referred me to a number of authorities to guide me that damages were generally not very substantial.  Upon perusing them, I find Wong Ying Chow v. Wong Hang Yin, DCCJ 4078/2005; Deputy District Judge C. Lee, dated 20 May 2010, a better comparable to the present case.

48.  I consider that $100,000 compensatory damages and $100,000 aggravated/exemplary damages are appropriate in the circumstances of our case.

Costs

49.  There is also an order nisi that the Defendant shall bear costs of the Plaintiff, including all costs reserved and Counsel’s Certificate for the 5 days’ trial before me, at District Court scale, party-and-party basis, to be taxed if not agreed.

50.  I also take this opportunity to thank both Counsel for their kind and useful assistance to the Court.

Attachment 1

“There have been snippets and rumours going on regarding our FAU chairman using the FAU funds to study law.

Well, actually it is a fact. She had studied law since 2002 and had been using the FAU fund without asking members’ approval as stated in the FAU Rule Book.

It has also never been mentioned in any inFAUline, according to the Chairman, she does not need to ask for members’ approval. She only needs to inform members about it. Which she did in the annual financial report. Something about educational expenses.

Personally, as a member of the UNION, I am very disappointed and failed to see why was she keeping this fact in law profit, when she is so outspoken about everything else. She should have asked the members for approval before deciding to go ahead and study.

What benefits can be gained by FAU or its members sponsoring our Chairman to study law? When she is retiring soon!

Is she thinking of Members’ Welfare? Or is she thinking about her own welfare?

I believe that we need a Union to ensure that the welfare of the crew is well represented. To balance the drive for profits and welfare of the work force, job satisfaction and stability.

However, do we approve of our Chairman using our fund as she sees fit?

I leave the answer to each one of you. If you are okay with it, please disregard this email. If you are not okay with it, please call your FAU and ask for an explanation. Demand accountability! Lets ask for accountability, return the money and change leadership, if we have no confidence in the current one!

Let’s have our voices heard and inform our Chairman that we are not happy about her using our money for her own study!”

Attachment 2
(underlined words are said to be
defamatory to the Plaintiff)

Subject: Re: FAU UPDATE NEWS

Dear All,

Hello everyone, my name is Marla, I am writing this email to update you with what had been going on with the issue of Becky Kwan sponsorship, the ‘missing evidence’ and what is going to happen in the short term.

SPONSORSHIP & THE MISSING EVIDENCE

It seems that finally our esteemed Chairman is going to come clean (please interpret the word clean loosely) with the issue of sponsorship in the upcoming InFAUline. Meaning that she will finally inform members that YES she did use the FAU fund for her study.

She will also claim that she was nominated by the EXCO members during one of the meeting prior to her taking up the study in 2002. Unfortunately, any written record that will support this statement (minutes of meeting) are yet to be found. I had actively searched for this document when I was EXCO (in July/August 2007), but I could not find it. Maew was and I believe is also still looking for it. Till date, no such documents could be found. Becky had RAISED UP THE POSSIBILITY that all these said documents may have been destroyed somewhere along the line, she had mentioned this on her correspondence with Maew, in order to “save” Maew’s time and to stop her searching further.

It is so very convenient that all other minutes are there, except for the ones needed regarding this sponsorship.

Chairman and some EXCO will also give a lot of dance and songs about why they decided to send Becky to study law, but if we can cut through the twists and turns, this is what remains unanswered!

The dangling questions still unanswered:

1. Why was sponsorship issues not raised in any EGM or AGM?
2. Why members are only informed now in 2007? (5 years after initial decision).
3. Is there anyone else using similar sponsorship in EXCO?
4. Criteria for sponsorship?

In July/August 2007 Maew and I had confronted Becky (BK) regarding this issue, and had asked her to inform members. She claimed that she would do that, unfortunately I had lost any confidence in this statement; I feel that if she failed to inform/ask consent from members since 2002, she would not do so now. That is the reason why I resigned and sent out an open letter instead informing crew of the fact that BK had used FAU fund for her own study.

In the meeting, there was also talk about Becky nominating herself to be FAU consultant after her retirement. Hence, it is my belief that Becky takes up the study to ensure her future career after retirement. Till date, I was not given any evidence to the contrary.

All the statements I wrote above can be verified, should you wish to do so, as to the CONCLUSION, I will not try to influence anyone here. Just read it through and draw your own conclusion!

FINANCIAL Accountability

Do you know that during the COURT CASE, one of the EXCO members who remains on 72 hours, were given the salary difference between 72 hours and 76 hours by FAU. That sum of money has since been returned to FAU. However, this fact was also not made public.

Do you know that EXCO do not work for free?

Do you know that FAU had spent HKD $50,000 on the launch of a new website, that till date not many members visit? It is a legal spending, but is it necessary?

Do you know how many millions FAU had to pay, once it lost a certain lawsuit that FAU consultant had advised FAU not to take up? Once again, it is a legal spending, still if FAU heeded the advice of its own lawyers, could this kind of high spending be avoided?

Who does BK employ to redesign the FAU website?

What is the reason for launching the new website?

It is our money that BK uses. So why should be kept in the dark?

When there is the entertainment expenses stated in the Annual Report, why is it not itemized?

Whom do we need to lobby?

FAU is not a company that needs to entertain, or does it?

If you do not know any of the above, could you ask FAU, why are you not informed?

I believe that all of us are endowed by this inherent feeling of right or wrong. We do not need anyone or anybody to tell us what to think or to influence us. I give you the facts as I know it and I invite you to process them yourself and draw your own conclusion.

CHAIN MAIL & AGENDA

I was invited by BK to join EXCO for many years which I had always declined. These are the reasons why I accepted the nomination this year, I wanted to find out if CX is as bad as BK had always painted in InFAUline or in any conversation I because BK had assured me that she is going to be less confrontational in dealing with the management.

Sadly, I felt I was severely misinformed, as I have mentioned in my open letter, I STRONGLY BELIEVE that WE NEED TO HAVE A UNION, we need to have a REPRESENTATIVE BODY whose main concerns are our WELFARE.

I don’t believe that FAU under BK’s Chairmanship could accomplish these objectives.

With this sponsorship matter, and what I perceive as her reluctance to inform members, I had begun to wonder what her primary objectives are. Is she working for FAU, or is she using FAU for her security?

I am aware that she is the longest serving EXCO in FAU, but does that make her the most effective or the most loyal?

As her dealings with the management, I had experienced first hand how she conducted the meetings with the company. My feelings and discomfort in her confrontational style is known by all other EXCO members attended the meetings including BK herself.

I resigned from FAU EXCO because I question the integrity of BK on the subject of sponsorship and her delaying tactics in informing members, I further question the effectiveness of FAU under her chairmanship and confrontational style. As I was not able to have BK and the EXCO members to write a statement informing members, I wrote an open letter to many crew informing this fact. I signed that email with my own name. I have also stated the intention of speaking freely regarding this issue during my last EXCO meeting.

For bringing everything out in the open, I had been accused by EXCO members of damaging the FAU. I find it quite amusing, to be labeled as such even though I had expected it. I never use any FAU money for my study, I had informed the EXCO that I was uncomfortable with the sponsorship issue, had asked questions, had received no satisfactory answers. I had informed EXCO that I was uncomfortable with BK confrontational style, and BK’s habit of making unsubstantiated allegations. I had also informed EXCO that I will speak about this sponsorship issue to crew community freely. In short I have a clear conscience.

Do I regret being an EXCO even if it is only for one month? In the beginning yes, not anymore! I had a bad experience, but I also learned a lot. I learned, sometimes speaking up for what is right is very liberating. I found friends in the unexpected places, I also found out that some people will tell lies after lies to cover up the first mistake, instead of just owning up, taking responsibility and move on.

WHAT IS TO COME?

A formal complaint letter by FAU members have been drafted and lodged to FAU, of which FAU has the obligation to reply within a certain time frame. Should FAU fails to do so, the REGISTRA Trade Union (an organization who is overseeing all Unions in HK) will handle the matter.

I would also like to encourage members to exercise their rights in getting the kind of UNION that meets members’ needs. I encourage all of you to speak up, call the FAU, ask questions, lodge complaints, demand explanation, transparency and accountability. Share the news with as many people as you can. Get them to be involved, let us not let others lead us blindly. FAU should work for what members want, not for its own agenda. Members can also demand for EGM (extra ordinary meeting) to be called. FAU rules book is there as a guidance, but if decision made by EXCO is not to members’ liking, members can demand a change. Draw a petition letter, state what you as members want.

FAU ph : 2382 8988

FAU email : fau@cpafau.org.hk

Believe me, it does make a difference. Lastly, what would you like me to do? Please share your view and opinion. Thank you for reading and thank you for taking the time to care!