WANG LIN JIA v. NG KAI CHEUNG

HCA 113/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 113 OF 2008

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J U D G M E N T

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Introduction

1.  This is an application for an interlocutory injunction by the Plaintiff to restrain the Defendant until trial from further publishing defamatory information about him which he is said to have done repeatedly since June last year by e-mail circulated to a number of persons and organisations.

2.  The background to this can be shortly stated.  The Plaintiff, Mr Wang, apparently a person of good standing in the business community and a member of the Guangxi Committee (HKSAR) of the Chinese People’s Political Consultative Conference, is the owner of a company called Joinn Strategic Holdings Limited, which I will refer to as Joinn Strategic.  Joinn Strategic provides corporate advisory and restructuring services which includes advising companies who wish to be listed on the Stock Exchange here in Hong Kong as well as in Singapore where the Plaintiff says he is also held in high repute.  Joinn Strategic will therefore advise and assist in the preparation of its clients’ Initial Public Offerings [IPO’s].

3.  The Defendant, Mr Martin Ng Kai Cheung, had previously been employed by a company called Golding Soft Limited as its financial controller.  He is a qualified accountant both here and in the United States.  Golding Soft had retained the services of Joinn Strategic to advise it in getting listed on the Growth Enterprise Market of the Hong Kong Stock Exchange.  The Defendant resigned from Golding Soft in December 2004.  There is an allegation that he had been having mental problems at the time, but at this stage I am not able to make any finding or comment about that.

4.  Suddenly, in June 2007, e-mails were sent to a large number of banks and regulatory organisations both in Hong Kong and Singapore which were highly derogatory of the Plaintiff.  The first e-mail, dated 20 June 2007 was sent to, amongst others, the SFC in Hong Kong, the Hong Kong Stock Exchange, Singapore Exchange Securities Trading Limited and to banks and stock broking companies.  This e-mail is at Bundle B, page 4 in its English translation.  It purports to come from Kai Cheung Ng, the address being martinng2008@yahoo.com.cn.  I need to set out its contents here in full:

“	Subject: Let’s Report the Scoundrel of the Hong Kong Financial Sector — Wang Lin Jia
	As an international financial centre, such a scoundrel — Wang Lin Jia appeared in Hong Kong.  He is the controlling mind of a so-called consultancy company, which specialises in assisting domestic corporations in the Mainland in FALSIFYING ACCOUNTS, and then financing for listing, mainly listing in Singapore.  This is one of his crimes.
	Even worse, he has misappropriated some of the capital raised by the listed companies for his own use, such as to buy luxurious properties and yachts, to womanize, and to otherwise spend.  Think about our pension funds, if they are invested in these companies, there won’t be anything left for.  Examples of companies whose accounts are falsified by this scoundrel:
	1.	Golding Soft Ltd. — listed in Hong Kong
	2.	Joinn Limited (former name: Cytech Software Ltd) — listed in Singapore
	3.	People’s Food Holdings Ltd. — listed in Singapore
	4.	Sunray Holdings Ltd. — listed in Singapore
	5.	Full Apex Holdings Ltd. — listed in Singapore
	6.	CHT Holdings Ltd. — listed in Singapore
	There are many others companies that have got listed in Singapore through this scoundrel.  Although there are other professional institutions participating, they don’t know the truth, this scoundrel is thoughtful and he also considers himself to be a genius.
	This scoundrel misappropriated the capital raised by these listed companies through bank transfers and the banks only keep records for 7 to 10 years.  We have to report this as soon as possible, don’t we???
	If you have any comments, please contact me and report this together!!!
	I am Mr Ng, Phone no.:00852-97108468
	P.S.
	Regarding womanising, the act of this person is even more despicable.  He does not dare to bully Hong Kong girls, so he employed female staffs in disguise through a company in Jiangxi which he is behind controlling, to work with another company in Guangzhou.  There is one occasion that he asked a girl whom he was interested to go to a business trip to Singapore with him.  Before going to the trip, he asked his subordinate to take out HK$60,000 cash from the listed company(ies).  After arriving in Singapore, he coerced this girl to comply with his demands.  Nevertheless, we can’t blame this scoundrel, because this scoundrel looks disgusting, even though he has money, he can only use these despicable tricks to womanize.”

Plainly, the content of this e-mail is highly defamatory of the Plaintiff.  This was followed by two other e-mails both on 23 June which were to the same effect.  These are, in translation, at B9 and 14.

5.  On seeing the first e-mail, the plaintiff says that he became very angry and embarrassed by the lies that had been written about him and he arranged for the Defendant to come to his offices so that they might discuss the matter.  They met on 22 June a day before the two further e-mails were sent.  The Defendant denied that he had sent the e-mail and refused to sign a letter of apology that the Plaintiff had prepared.

6.  The Plaintiff was shown the second and third e-mails on the following day.  What may be significant in due course is that the third e-mail at 12:12 p.m. referred to the meeting with the Plaintiff the previous day in these terms:

“

Since I sent out this e-mail, this scoundrel contacted me and asked me to sign a declaration to clarify hereby that I did not sign any such declaration and the contents of this e-mail are absolutely true.  I plan to report to the Commercial Crime Bureau of the Hong Kong police first next week, what do you all think?”

7.  On 26 June, the Plaintiff’s solicitors sent the Defendant a letter demanding an apology and retraction of what appeared in the e-mails.  There was no response to that letter and no telephone contact was possible with the Defendant.  In those circumstances, the Plaintiff issued a writ for libel on 18 July 2007 (HCA 1530/2007 — “the first writ”).  After that writ was issued, it is the Plaintiff’s case that the Defendant contacted Mr Vincent Liu, who is the financial controller of Joinn Strategic, and asked for one more chance.  The Plaintiff says that in view of what he perceived to be the Defendant’s mental instability, he was minded to give him that chance provided he signed and distributed to the recipients of the e-mails a retraction and an apology.  It is common ground that on 3 August, the Defendant attended the Plaintiff’s solicitors’ offices and he was presented with an apology letter which he also refused to sign because of the references to his mental instability.  Then on 25 August, the Plaintiff received a letter from the Defendant’s parents telling him that the Defendant had made a mistake in making defamatory remarks and asking him the Plaintiff to give him a chance.

8.  This was followed up by the Defendant telephoning Mr Liu in late August to say that he was remorseful and that he was willing to sign a letter of apology.  On 30 August, the Defendant signed such a letter at the Plaintiff’s solicitors’ offices which is at B102-104.  It is in the following terms:

“	To: Mr. Wang Lin Jia
	Declaration Statement
	In relation to the e-mails sent by me on 20 June 2007 at 3:04 p.m., 23 June at 12:12 p.m. and 25 June at 5:26 p.m. (sent from martinng2008@yahoo.com.cn), I hereby declare that the contents of the said e-mails are unfounded and untrue.  I falsified these e-mails and the contents.  I hereby solemnly declare to retract all these e-mails and the contents thereof, and I declare again that the contents in the e-mails are not true.  I apologise to Mr Wang Lin Jia, the companies as mentioned in the e-mails and all recipients of the e-mails.  I am willing to be responsible for all legal liabilities and consequences of the e-mails.  I also undertake that I will not send these kinds of e-mails again and to do the acts which would spoil the reputation of the others in the future.
	I also undertake that I will send an apology letter and enclose the Declaration Statement therein to all relevant parties within today.
	I hereby apologise.
	Singed: Martin Ng Kai Cheung 30.8.07”

Upon the Defendant having signed this letter, the Plaintiff instructed his solicitors to withhold any further action against the Defendant in relation to the first writ.  On 13 October, the Plaintiff received a letter from the Defendant dated 10 October [B48-50].  It is there to be read.  Its tone is highly emotional and apologetic for what he had done to the Plaintiff and expressed the hope that he might work for the Plaintiff again.

9.  Nevertheless, the matter did not end there.  December and January this year saw the publication of 13 further e-mails basically of the same type as the first e-mail on 20 June 2007 which I have set out in paragraph 4 above, most of these going to organisations operating in the financial sector in Singapore.  Unsurprisingly, some of the parties who received these e-mails are expressing concern about the probity of the Plaintiff’s and Joinn Strategic’s conduct.

10.  The Defendant has been spoken to by Mr Vincent Liu about these subsequent e-mails and he has denied sending them.

11.  Faced with this situation, the Plaintiff has now issued this writ complaining that he has been libelled in 16 e-mails, the first on 20 June 2007 and the final one on 17 January 2008.  It is said on his behalf that he should be granted this interlocutory injunction as a matter of urgency.  It is intolerable that he should have to put up with what amounts to a campaign of defamation of the worst possible kind which may have the effect of harming not only his good standing and reputation in the financial sector here in Hong Kong, in Singapore and on the Mainland but which is also likely to cause him severe financial loss as potential clients look elsewhere for the sort of services that Joinn Strategic provides.  Additionally, these defamatory remarks are said to harm his reputation in a private capacity having regard to part of the content of the e-mails which speak very badly of him in the way he treats women.

The Defendant’s Stance

12.  This summons was first listed before me on 25 January which was before the Defendant had an opportunity to respond to the Plaintiff and his witnesses affirmations.  On that occasion, it became very clear that the Defendant was contesting the authorship of any of these e-mails, thereby raising a most fundamental defence to any libel action.  I adjourned the matter to allow the Defendant to file evidence in reply which he has by his affirmation of 2 February which confirms his assertion that he is not the author nor the sender of these e-mails and he has provided detailed reasons for saying so.  As to the admission that he signed on 30 August 2007 in respect of 3 June 2007 e-mails, he says that he was rather badgered into doing so.  He says that the Plaintiff had told him that people reading these e-mails might believe that their contents were true, including the reference to Golding Soft’s fabricated accounts for which he had been responsible and in which circumstances he might well find himself in serious trouble.  Consequently, after references to his mental state were removed, he signed the admission on 30 August.

13.  Since the matter was adjourned on 25 January, two further
e-mails have been sent on 27 January and on 4 February to a very considerable number of recipients involved in the financial sector and who are involved in the type of work done by the Plaintiff.  These too are most defamatory in their content.

14.  Now that the matter has proceeded to a hearing before me, the Defendant has pursued the same stance that he is not the author nor the sender of this material. 

The Court’s Approach in Applications for an Interim Injunction in a Libel Action

15.  Mr Dykes SC, for the Plaintiff, quite rightly accepts that the regime established in American Cyanamid v Ethicon does not apply in libel cases.  The burden on an applicant for an injunction in a case such as this is a much heavier one.  Gatley [10^th edition, para. 25.2] puts it in this way:

“	25.2	Delicate nature of jurisdiction.The jurisdiction to grant interim injunctions to restrain publication of defamatory statements is ‘of a delicate nature’, which ‘ought only to be exercised in the clearest cases’.  That was stated by Lord Esher M.R. in Coulson v Coulson, and it encapsulates the general approach of the court.  The reluctance to grant peremptory injunctions is rooted in the importance attached to the right of free speech.  Thus the Court will only grant an interim injunction where:
		(1)	the statement is unarguably defamatory;
		(2)	there are no grounds for concluding the statement may be true;
		(3)	there is no other defence which might succeed;
		(4)	there is evidence of an intention to repeat or publish the defamatory statement.
		… The practice established in applications for interlocutory injunctions by American Cyanamid v Ethicon, of not considering the merits of the case once it had been shown there was a serious issue to be tried, but determining where the balance of convenience lay between the parties as regards the imposition of a restraining order, has been rejected as inappropriate in defamation cases.”

16.  In this matter, Mr Dykes submits that I need only concern myself with two issues at this stage.  Firstly, whether the statements contained in the e-mails are unarguably defamatory and secondly, whether the evidence is sufficiently compelling to justify a finding that the Defendant is the author and sender of these e-mails.

17.  I should also mention, in order to exclude it, the defence of justification.  The law is that where a defendant contends that the words complained of are true and swears on affidavit that he will plead and seek at trial to prove the defence of justification, the court will not grant an interlocutory injunction, unless the court is satisfied that such a defence is one that cannot succeed.  See Bonnard v Perryman [1891] 2 Ch.269 and, more recently Greene v Associated Press Ltd [2005] QB 972.  Although at paragraph 3 of his affirmation, the Defendant has said that the contents of the e-mails relating to the state of the accounts of Golding Soft are true in that they present a false picture, which is capable of standing as a partial defence of justification in relation to that company alone, the defendant insofar as I can discern his position is that he is limiting himself to the even more fundamental defence of not being the author and sender of the e-mails.  In these circumstances, the potential, very real difficulty that an applicant for an injunction faces where justification is going to be raised does not exist and I need not say anymore about it.

Are the Statements Undoubtedly Defamatory?

18.  I can take this shortly.  These are accusations of wholesale dishonesty in the course of the Plaintiff’s profession, together with imputations as to his moral character in relation to the opposite sex.  I find as a matter of law that these statements are unarguably defamatory.  The evidence is all one way in this regard.  This therefore disposes of the first issue in favour of the Plaintiff.

Is the Defendant the Author and Sender of These E-mails?

19.  The first question is to decide to what standard of proof this needs to be shown to be the case.  Clearly, it has to be beyond a mere prima facie case, or even a good arguable case, as is sometimes looked for in applications for interlocutory injunctions.  Given the courts very high expectations in a libel case before it will be persuaded to make an order of this kind, it seems to me that Mr Dykes needs to demonstrate that, even at this pre-trial stage, and on conflicting affirmations, it is more likely than not, in other words carrying the civil burden of proof, that the Defendant is the author and sender of these e-mails.  I had wondered, in the course of the argument, whether on this issue the matter is somewhat akin to an Order 14 situation where all the Defendant needs to show is that there is a triable issue as to whether he is the author and if he can demonstrate that, then the outcome will need to go to trial, in which case no injunction could go to restrain the Defendant in circumstances where authorship is disputed.  Whichever way one cares to express it, the final analysis must be that Mr Dykes needs to carry the day now and demonstrate on the civil burden that the Defendant is the author.  Gatley refers to a need to show that there is no other defence which might succeed [see para. 15 supra.] which indicates the very high burden placed on an applicant for an injunction.  I would have thought that this condition can be no higher than proof by an applicant of a vital ingredient, such as authorship, on the basis of the civil burden and this therefore is how I propose to approach the evidence.

Analysis of the Evidence at Present

20.  The starting point for any examination of this kind is the admission of authorship of the June 2007 e-mails by the Defendant in the letter of 30 August 2007.  The Defendant has sought to explain this as having come about by virtue of pressure brought to bear by the Plaintiff and that he thought that he had better say this was all untrue because he feared that he would be held responsible for the fraudulent Golden Soft accounts which he had prepared.  This explanation needs to be weighed by me as part of all of the relevant evidence as a whole that may or, in some instances, may not point to the Defendant’s authorship.

21.  What I am not prepared to take into account is the letter from the Defendant’s parents, to which I have already referred, confessing to this on his behalf.  They cannot be considered as his agents for this purpose and there is no evidence that they sent this letter with his authority or consent.  This letter must therefore be excluded from my consideration.

22.  Mr Dykes has put in a schedule of evidence which he says points to the Defendant as being the sender and the author of the e-mails.  The June e-mails, of course, bear the Defendant’s name and the e-mail address is also in the Defendant’s name together with his telephone number.  As to the e-mail address, the Defendant has explained that this is not his and that he could not log into it when he was asked to send out apologies for what he had done and he had to create a new e-mail address which was very similar to the one used by the sender of the June e-mails.  There is evidence from Mr Vincent Liu that a few days after the issue of the first writ, the Defendant telephoned him to ask for forgiveness for what he had done.  After that on 30 August 2007, he signed the letter of apology.  On 10 October, the Defendant sent the Plaintiff a letter of apology [B48/50] which, having regard to its contents and, the surrounding background, clearly serves to confirm the on-going dispute and the Defendant’s authorship of the June e-mails.  One then comes to the e-mails dated 19 and 21 December 2007 [B51-59], the contents of these being very similar to those sent in June although it is right to say that the sending e-mail address does not bear the defendant’s name nor are they signed by him.  The e-mail of 17 December is signed by the Defendant [B60-63] notwithstanding the fact that it does not come from the e-mail address of the June e-mails which contained his name.  The sending e-mail address for 17 December is the same one as for the e-mail on 19 and 21 December.  Another e-mail dated 11 January 2008 [B64-68] refers back to the exposure, by the author of this e-mail, of the Plaintiff’s various misdeeds and also tells of having received a threatening telephone call from Mr Liu.  The e-mail of 13 December 2007 [B76-77] is signed by Martin Ng.  The e-mail of 30 December 2007 [B87-89] speaks of the author having left the criminal gang in December 2004 — which can be taken as referring to the Defendant’s departure from Golding Soft at that time.  The e-mail of 3 September 2007 [B105-107] undoubtedly comes from the Defendant, which he accepts but, it has a slightly different e-mail address, this referring to the Defendant’s evidence that the Martin Ng address on the June e-mails was not his and which he could not log into, which required him to create another address which is slightly different with the addition of an ‘h’.  This e-mail also has his mobile telephone number which is the mobile number appearing on the June e-mails.  As to the January 2008
e-mails, their contents and allegations are for all intents and purposes identical to the June e-mails.  This includes the mail of 11 January [B64-68] supra. which refers to the telephone call with Mr Liu in which Mr Liu is said to have threatened him.  As to this, Mr Liu says in his affirmation that the Defendant was the only person that he had telephoned about these defamatory e-mails, which must point, in a conclusive way, to the Defendant being the author of this e-mail.

23.  Mr Dykes has also relied on the writing on the envelope which contained the letter of apology dated 10 October 2007 [B161-163] above is very similar to the handwriting on the Defendant’s tax-return with Golding Soft.  Given the uncertainty of making these sort of comparisons by a layman, I do not propose to take this piece of evidence into account.

Conclusions on the Evidence

24.  The evidence needs to be considered as a whole giving proper weight to the defendant’s explanations and remembering that none of this evidence has been tested by cross-examination.  In approaching it in this way, I am driven to the conclusion that Mr Dykes has carried the burden on a balance of probabilities, even at this stage, of showing that the Defendant is the author of all the defamatory e-mails.  Whatever the Defendant may say in his affirmation and in his address to the court, the only sensible conclusion that one is able to arrive at on the whole of the evidence is that he is the author.  He has admitted to the June e-mails and subsequently apologised for them by his retraction e-mail of 3 September and by his letter of apology on 10 October.  As to the December and January e-mails, it is really asking too much to suggest that somebody else has taken up cudgels against the Plaintiff.  The e-mails are part of a pattern of behaviour by this Defendant which should now be checked by injunction.  Even after the hearing of 25 January last he has, on my finding, sent two further
e-mails.  I am satisfied that there is every prospect that this damaging
e-mail traffic will continue unless stopped by the injunction that is asked for by the Plaintiff.

Are the Singapore E-mails Actionable Here?

25.  This can also be taken shortly.  There is expert legal opinion from Singapore that these e-mails constitute an actionable libel in that jurisdiction.  Of course, they are actionable in Hong Kong and so according to Boys v Chaplin [1969] 3 WLR 322 a tort committed abroad (in relation to the e-mails sent to Singaporean recipients) is actionable in Hong Kong if it is actionable in Singapore and in our jurisdiction.  This being so the action can proceed in the courts of Hong Kong.

Balance of Convenience

26.  Given the very real risk of repetition, the potential damage to the Plaintiff and the inability of an unemployed Defendant to compensate the Plaintiff after trial, the balance of convenience must favour the grant of the injunction.

The Order

27.  I have a draft order, for the form of the injunction, which has been prepared by the Plaintiff’s solicitors.  Subject to costs upon which I will hear the Defendant in a moment, the order for the injunction will now go to restrain the Defendant in the way that appears in the Draft Order itself.

28.  Lastly, because I have expressed myself so conclusively as to the authorship of these e-mails, it seems to me that it would not be right for me to be the trial judge if the matter gets that far and I leave it to the parties to draw this to the attention of the listing judge and the listing officer.