LI KAM FUNG v. FONG TSZ KIT

DCCJ 5912/2015

[2018] HKDC 1252

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5912 OF 2015

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JUDGMENT

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INTRODUCTION

1.  This is the trial of the plaintiff’s claim for libel based on two alleged publications.  The first comprises an e-mail and a letter, both dated 7 May 2014 and of the same content, sent by the defendant to Wai Fat Pharmaceutical Company Limited, who the plaintiff alleges was his commercial sponsor (“the Wai Fat letter”).  The second comprises statements made on the website address of “www.world-memory-statistics.com/home.php” (“the WMSC website”) since some time in 2014.  The plaintiff alleges that the defendant was responsible for the maintenance of the website and hence the statements were published by him.

2.  The defendant counterclaims against the plaintiff also for libel based on two alleged publications.  The first concerns statements posted on the Facebook page of Crazy Learning on about 9 May 2014.  Crazy Learning is a partnership.  The plaintiff is one of the partners.  The second relates to another posting on Crazy Learning’s Facebook page on about 12 August 2014.

3.  The plaintiff and the defendant are involved in what has been referred to in these proceedings as the field of “memory sports”.  What the sport is about and how it is played is not a focus in this action.  But just to give a flavour of it as part of the factual background, according to an advertisement published by Wai Fat featuring the plaintiff, he held a record of memorising the order of a pack of playing cards within 40.16 seconds. 

4.  Both the plaintiff and the defendant have participated in overseas memory sports competitions.  They are involved in providing memory training to youngsters and have also organised memory sports competitions in Hong Kong.

THE PLAINTIFF’S CASE

5.  The plaintiff is a memory training instructor by profession.

6.  Between 2006 and 2013, he participated in a number of competitions organised by the World Memory Sports Council (“WMSC”).  It is an organisation founded in 1991 and based in the United Kingdom.   It features prominently in the defendant’s case.  The plaintiff won the Australian Open Memory Championship, which was held by WMSC, in 2011 and 2012.

7.  The plaintiff founded a partnership known as “Hong Kong Memory Representing Team”, and “香港記憶代表隊” in Chinese, with a Ma Hing Wai, also known as Iron Ma, in April 2012.  The plaintiff was its Honorary Chairman.  (The business registration records, however, reveal that Iron Ma was the only partner in April 2012 and the plaintiff formally joined the partnership in February 2013.  But it would appear that nothing turns on this discrepancy.)  In these proceedings, the name of the team has been abbreviated as “HKMRT”.  Since 2012, the plaintiff and HKMRT had been engaged in the business of providing memory training and organising memory competitions.  In particular, the plaintiff had been running memory training courses catered for students in the Po Leung Kuk group of schools since 2013.

8.  Also in early 2012, the plaintiff and Iron Ma set up another partnership known as “Crazy Fung Memory Training Center”, which was succeeded by Crazy Learning in March 2013.

9.  It would be convenient to briefly introduce here the team and organisation relating to the defendant.  He is the founder and President of the “Hong Kong Memory Sports Council”, “香港記憶運動協會” in Chinese, and the manager of the “Hong Kong Memory Team”, “香港記憶代表隊” in Chinese.  These two organisations are abbreviated in the pleadings as “HKMSC” and “HKMT” respectively.

10.  It is immediately notable that the names of the two respective ‘Hong Kong teams’ set up by the plaintiff and the defendant are very similar. 

(a)  The English names are different by only one word.  The plaintiff’s team has the additional word of “Representing” in its English name.

(b)  The Chinese names are identical.

11.  In his oral testimony, the plaintiff explained the different focus of his two partnership businesses.  Crazy Learning would run memory courses in general whereas HKMRT would provide training to students to prepare them for memory competitions. 

12.  He also explained the division of work between him and Iron Ma.  As Honorary Chairman of HKMRT, the plaintiff was its public face.  He would be its representative when dealing with the media.  In cross-examination, he described himself as the “mascot” of HKMRT.  Iron Ma was the vice-chairman and his primary responsibility was internal administration and communication with parents. 

13.  As far as Crazy Learning is concerned, Iron Ma would similarly be responsible for internal administration, maintenance of its website and communication with parents.  The plaintiff would be in charge of external communication with the media.  He would also teach courses when required.

14.  In September 2013, HKMRT sent 32 students to participate in the “1^st Hong Kong Open Memory Championships” organised by HKMSC.  The students won a number of prizes.

15.  In 2013, the plaintiff, in the name of HKMRT, received sponsorship from Wai Fat.  Under their arrangement, Wai Fat would give its products to the plaintiff for free for one year with a total value of $100,000.  It would also feature the plaintiff in its advertisements.

The first claim

16.  On 7 May 2014, the defendant published the Wai Fat letter, which is the subject-matter of the first claim. 

17.  The words complained of are as follows:-

“We are the Hong Kong Memory Sports Council. The independent official body that is licensed by the World Memory Sports Council to govern the mind sport of memory and regulate competitions.

We also receive exclusive licence from the World Memory Sports Council (WMSC) to set up and operate the official Hong Kong Memory Team. Please see the attached letter (OfficialNotification.pdf) from Mr. Dominic O’Brien, head of ethics for WMSC and Mr. Ray Keene OBE, the Co-founder of World Memory Championships, for support.

In [an advertisement published on the 24^th April 2014 issue of the Apple Daily], we notice that one Li Kam Fung has wrongfully represented himself to be the Honorary President of the Hong Kong Memory Team. We wish to point out that this is a wrongful representation. In fact, Mr. Li has on numerous occasions misrepresented himself to be the president/ manager/ member of the Hong Kong Memory Team and we have sent written warning to him that it is against the law to wrongfully represent himself.

We are now seeking legal advice in Hong Kong to take legal action against Mr. Li.  In the circumstances, we would urge you to stop circulating this advertisement which contains obvious mistaken and wrongful information.”

18.  The Wai Fat letter was sent in the name of the defendant and the following titles were stated after his name:-

“Official Representative of the WMSC in Hong Kong
President of the Hong Kong Memory Sports Council
Manager of the Hong Kong Memory Team
Grandmaster of Memory”

19.  The advertisement referred to in the letter was in Chinese and was for the promotion of a health product called “古寶活腦素”.  It was a health supplement and was said to have the function of improving memory and boosting concentration.  The advertisement contained a photograph of the plaintiff and the following words featured prominently above the photograph: “香港記憶代表隊 專用產品”.  The plaintiff was described as follows:-

“李鑑峰先生
香港記憶代表隊榮譽主席
2011及2012年澳洲記憶力錦標賽
全場總冠軍及多項記憶賽事冠軍
香港記錄：
40.16秒記憶1副啤牌順序（世界大賽認可）”

20.  Thus the plaintiff was referred to as the Honorary Chairman of HKMRT, the overall champion of the Australian Open Memory Championship in 2011 and 2012 and the champion of many memory competitions.

21.  The plaintiff pleads that the words in the Wai Fat letter meant:-

(a)  He had no right to organise memory sports competition or otherwise infringed the defendant’s exclusive right to organise such competition in Hong Kong.

(b)  He was being dishonest in calling himself the President/Manager or a member of the Hong Kong Memory Team or otherwise associating himself with the Hong Kong Memory Team.

(c)  He had committed unlawful or wrongful activities and was liable to be sued.

22.  After the publication, Wai Fat immediately stopped the sponsorship.  Based on the plaintiff’s estimate, if the defendant had not published the Wai Fat letter, Wai Fat would provide the sponsorship for at least three years.  The plaintiff had already received the sponsored products for the first year in full in 2014.  He has therefore suffered loss in the sum of $200,000, being the value of the sponsored products lost for the following two years.

23.  It should however be noted that in cross-examination, the plaintiff admitted that there was no written agreement signed between him and Wai Fat.

24.  The plaintiff also complains that Po Leung Kuk terminated the relationship with him because the defendant published to Po Leung Kuk statements defamatory of him in about August 2014.  However, this is clearly beyond the scope of the first claim.  It is therefore not necessary to deal with that part of the evidence.

The second claim

25.  It is the plaintiff’s case that soon after the publication of the Wai Fat letter, the defendant published and/or caused to be published on the WMSC website further defamatory statements, which is the subject-matter of the second claim.

26.  The page, which contained the words complained of, bore this address: “www.world-memory-statistics.com/competitor.php?id =232”.  It was part of the website owned by WMSC.  The page, as disclosed in these proceedings, showed the plaintiff’s records in WMSC competitions, including his championship positions from 2006 to 2013.  At the top left-hand corner of the printout, one can see the reference “Competitors: LI Kam Fu … [incomplete on the disclosed copy]”.

27.  The offending words appeared as a remark at the bottom of the page. They are as follows:-

“Li Kam Fung has on numerous occasions misrepresented himself to be the president/ manager/ member of the Hong Kong Memory Team, a Grandmaster of Memory and a World Memory Champion.”

28.  The plaintiff pleads that the words meant:-

(a)  He was being dishonest in calling himself the President/Manager or a member of the Hong Kong Memory Team or otherwise associating himself with the Hong Kong Memory Team.

(b)  He has dishonestly called himself a Grandmaster, a title that he did not deserve and was not entitled to use.

(c)  He has dishonestly and shamefully called himself World Memory Champion, a title that he did not deserve and was not entitled to use.

29.  The plaintiff said in cross-examination that someone had previously mentioned to him the words on the WMSC website but he did not pay too much attention then because at that time he was no longer participating in WMSC competitions.  It was only after the publication of the Wai Fat letter that he did some investigation about the publication on the website.

30.  The plaintiff avers that on the defendant’s own evidence, although the latter did not post those words on the website, he subsequently took over the maintenance of the WMSC website in about July 2014.  The defendant should therefore be regarded as having published those words from that time onwards.

31.  In respect of both claims, the plaintiff seeks general damages of $100,000, relying on the decision of Golden Field Glass Works Co Ltd v Yeung Chun Keung DCCJ 1942/2012, 31 March 2017.  He also seeks, in respect of the first claim, special damages in the sum of $200,000.  It was confirmed in opening that he would not pursue the injunctive relief sought in the statement of claim.

THE DEFENDANT’S CASE

32.  The defendant has begun participating in memory competitions since 2010.  His first competition was the one held in Guangzhou by WMSC.

33.  According to the defendant, WMSC is an independent organisation set up to promote the mind sport of memory and regulate memory sports activities both in the UK and worldwide and is acknowledged as the most recognised body in this field.  It is represented by about 18 countries and jurisdictions worldwide, including Hong Kong and has through its local councils and representatives organised local memory championship in more than 37 countries and jurisdictions, including Hong Kong. 

34.  Amongst the competitions which WMSC organises is the World Memory Championship held annually.  Since 2013, it would award three titles according to its own assessment standards.  They are International Master of Memory (IMM), Grandmaster of Memory (GMM) and International Grandmaster of Memory (IGM).  In Hong Kong, there are only three GMMs and four IMMs. 

35.  The defendant participated in another WMSC competition in 2011.  He was awarded the title of “International Grandmaster of Memory” in that competition.  WMSC revamped its title system in 2013.  At present, the defendant is a GMM.  The plaintiff was never awarded any title by WMSC.  He never won the World Memory Championship.

36.  In August 2012, the defendant was appointed by WMSC as its official representative in Hong Kong.  He was authorised by WMSC to organise a Hong Kong chapter and hold competitions in Hong Kong.

(a)  The defendant set up HKMSC, which has been accredited and licensed by WMSC to be “the only official representative in Hong Kong to regulate memory sports activities and to launch and organise the competition “Hong Kong Memory Championships””.

(b)  HKMT is the only official team representing Hong Kong to participate in the World Memory Championship held annually by WMSC.  The defendant is HKMT’s coach.

37.  The Hong Kong Memory Championships, which was organised by HKMSC, was first launched in September 2013.  On the promotional leaflet, it was stated that the competition was sanctioned by WMSC.  The defendant’s position is that HKMSC has the exclusive right to hold memory competitions in Hong Kong which are officially sanctioned by WMSC.

The first claim

38.  In respect of the first claim, the defendant admits that he published the Wai Fat letter.  Further, in opening, Mr Edward Lun, appearing with Mr Austin Yiu for the defendant, accepted that:-

(a)  The Wai Fat letter referred to the plaintiff.

(b)  The words complained of bore the defamatory meanings as pleaded.

(c)  The defendant would no longer pursue the pleaded defences of fair comment and qualified privilege.

39.  In his closing submissions, Mr Lun further accepted that:-

(a)  The defendant has no exclusive right to organise memory competitions not related to WMSC or HKMSC.

(b)  At the time when the Wai Fat advertisement was published, both the plaintiff and the defendant were co-using the Chinese name “香港記憶代表隊”. The defendant had no monopoly over the use of that Chinese name. 

(c)  There was nothing wrong for the plaintiff to refer to that Chinese name in the advertisement.  Furthermore, the description of the plaintiff there as the champion of the Australian Open Memory Championship is correct and accurate.  (This championship is to be distinguished from the World Memory Championship, although both competitions are held by WMSC.)

(d)  As accepted by the defendant in cross-examination, the plaintiff had never called himself the president or manager, or a member, of HKMT or otherwise associated himself with HKMT.  (While the cross-examining questions were put to the defendant in Chinese, the reference to “HKMT” was made in English.  It would be recalled that HKMRT and HKMT shared the same Chinese name.)

40.  On that basis, the defendant conceded that the pleaded meanings set out in para 21(a) and (b) above cannot be justified.  He however maintained at closing that the pleaded meaning set out in para 21(c) above can be justified.

41.  The defendant relies on a number of incidents since 2012 in support of the plea of justification.

42.  First, in a RTHK programme (with a live audience) on 16 March 2012, the plaintiff allowed himself to be described by the masters of ceremonies as a “grandmaster of memory” and a “World Memory Champion”.  On that occasion, the following exchange took place on stage in Chinese:-

“主持一：首先，我地要揾大師。

主持二：啊？風水大師呀？

主持一：啊，唔係，啊，唔係....

主持二：....大師呀？

主持一：我地請呢個記憶力大師，佢就係呢，嬴咗呢個世界記憶力錦標賽嘅李鑑峰先生。

主持二：哦，有請記憶大師！

主持一：係！

主持二：嘩，咁後生架原來記憶大師？

主持一：係囉；咦，IQ BB嚟架喎!食得….

主持二：你好！歡迎你，恭喜發財!

主持一：啊，大師，你係咪好好記性？

李鑑峰：其實叫我啊峰得架喇。”

43.  Secondly, in a RTHK radio programme on 1 April 2012, the plaintiff allowed himself to be described by the programme hosts as the “World Memory Champion”.  On that occasion, the following exchange took place in Chinese:-

“主持一：咁我係依個時候呢，都要真係揾我地今日嘅嘉賓呢....

主持二：嗯

主持一：....即係求救吓！因為佢就係世界記憶力錦標賽冠軍啊李鑑峰！Hello！啊峰你好！

主持二：Hello

李鑑峰：Hello你好！你好！”

44.  Thirdly, in a television programme broadcast on Pearl in about July 2013, the plaintiff allowed himself to be introduced as follows:-

“Simon Li [ie the plaintiff] is a memory grandmaster. A two-time winner of the World Memory Championship in 2011 and 2012 in Australia.”

45.  Fourthly, in about October 2013, the plaintiff allowed himself to be referred to as a “Grandmaster of Memory” in the website of “the-sun.on.cc”.

46.  Fifthly, Crazy Learning advertised in its website that HKMRT would be awarding the title of “Grandmaster of Memory in Hong Kong”.

47.  At closing, Mr Lun submitted that since the plaintiff had never been awarded the title of GMM by WMSC and that he had never won the World Memory Championship, the wrongful use of the titles in the above incidents amounted to “unlawful or wrongful activities” as pleaded by the plaintiff.  That pleaded meaning can therefore be justified.

48.  The plaintiff’s reply to this is that he has never represented to anyone that he was awarded any title by WMSC, including the title of “grandmaster of memory”.  In the media programmes relied on by the defendant, it was the MCs or the hosts who decided to describe the plaintiff in a particular way.  Some of them introduced him as a “grandmaster of memory” or “記憶大師”.  It was a recognition of his expertise and status in the field of memory sports.  But he has never introduced himself to anyone as a “grandmaster of memory” or “記憶大師”.

49.  In cross-examination, the plaintiff confirmed that the information appearing in the Wai Fat advertisement had been provided and cross-checked by him and hence it was factually accurate.  In contrast to that, he had no control over what the MCs or hosts would say about him in the other programmes.  They might have done their own research.  Some of them wrongly described him as a “World Memory Champion” when he was the overall champion in the Australian Open.  He denied that he had communicated the wrong title to the MCs or hosts prior to the broadcast.  In any event, he could not do any cross-checking before the programmes were aired.

50.  In fact, he pointed out that in the RTHK programme on 16 March 2012, immediately after the introduction by the MCs, the plaintiff asked them to call him “Ah Fung”.

51.  In addition to the above programmes, the defendant revealed for the first time in cross-examination that he was aware of one instance in which the plaintiff described himself as a “master”.  On that occasion, the plaintiff was attending a seminar at Baptist University.  He claimed that he held the qualification of “記憶大師” (that is “memory master”).  This was a completely new revelation.  It was not mentioned in the defendant’s pleading, his witness statement or any of the contemporaneous documents, including the pre-action letters exchanged between the parties’ solicitors.  Not surprisingly, the defendant was pressed by counsel on this point.  The defendant said that he was sure that the plaintiff had made that claim as he had recently watched the video recording of that seminar again.

The second claim

52.  According to the defendant’s pleaded case, the WMSC website was owned by WMSC and, until 30 June 2014, was maintained by a Jennifer Goddard.  On or about that day, Goddard resigned from WMSC and WMSC requested the defendant “to take over the maintenance and updating job” in respect of the website.  The defendant “decided to take over the said jobs in or about July, 2014”: see paras 7(2) to (4) of the defence and counterclaim. 

53.  In his witness statement, the defendant elaborated on this.  The offending words appeared on the WMSC website on about 7 March 2014.  At that time, the defendant had no right over the website and was not responsible for its maintenance and updating.  He reiterated that it was only in about July 2014 that he “agreed and took over Goddard’s job function”.  The maintenance of the website included updating the statistics on World Memory Championship activities, competitions and competitors.  But he was not responsible for the content which was from WMSC itself.

54.  In these proceedings, the defendant has disclosed a series of e-mails exchanged between himself and the officials at WMSC in late June and early July 2014 about Goddard’s resignation and the new role for the defendant.  In one of the e-mails, it was stated:-

“What were [Goddard’s] most important functions. Maintaining stats and ratings. …”

55.  At trial, the defendant emphasised that his role over the website was very limited.  In gist, Mr Lun stressed that the defendant only updated the statistics and did nothing more than that and he was not allowed to modify anything else on the website.

56.  In his oral closing submissions, Mr Lun stated the defendant’s position on his knowledge of the offending words.  After the defendant took over Goddard’s job relating to the WMSC website, he knew about the words now complained of in the second claim.

57.  Accordingly, the defendant denies that he published or caused to be published the offending words.  What happened was that the words had been published by WMSC before he took over the maintenance and updating of the WMSC website in about July 2014. 

58.  The issue of publication is therefore in dispute.

59.  Separately, in opening, Mr Lun accepted the following:-

(a)  The words referred to the plaintiff.

(b)  The words bore the defamatory meanings as pleaded.

(c)  The defendant would no longer pursue the pleaded defences of fair comment and qualified privilege.

60.  The defendant further conceded that the pleaded meaning set out in para 28(a) above cannot be justified.  But he maintained that the pleaded meanings in para 28(b) and (c) can be justified on the same grounds put forward to justify the words complained of in the first claim.

61.  Therefore, in addition to the issue of publication, the defendant disputes liability also on the ground of justification.

The counterclaim

62.  The first alleged publication under the counterclaim is the post on the Facebook page of Crazy Learning on about 9 May 2014.  That is two days after the defendant published the Wai Fat letter.

63.  The words complained of are as follows:-

“過去半年，本會發現有機構抄襲我們「香港記憶代表隊 HK Memory Representing Team」的名字並進行一些記憶活動，該機構（下稱抄襲者）經常於網上發佈對本會的抺黑言論 … 該抄襲者昨日更向本會的贊助商發放全然失實的抺黑言論 … 本港的所有記憶機構均為獨立機構，「香港記憶代表隊HK Memory Representing Team」和抄襲者的機構亦應是獨立機構，然而，該抄襲者一直標榜其組織乃外地某獨立組織於香港的分支，一再強調其組織獲該外地組織認可，而其他本港既有記憶機構則沒有認受性可言，簡單而言即是自己的組織認可自己的組織 … 抄襲本會名字之餘，更企圖透過各種手段否認和排斥其他機構以達致壟斷記憶活動之目的，甚至挑撥及離間本會與學員以致與贊助商之間的關係，誘使本會之學員轉投其名下或終止與本會之合作關係 … ”

64.  The certified English translation reads:-

“In the past six months, we found that there was an organization which faked the name of ‘HK Memory Representing Team’ and held memory activities in this name. That organization (hereinafter called ‘the faker’) often posted defamatory statements against us on the internet… Yesterday, the faker made misrepresentations and defamatory statements against us to our sponsors… All memory organizations in Hong Kong are independent and probably so are HK Memory Representing Team and the faker. However, the faker has always advertised that it is a Hong Kong branch of a foreign independent organization and has repeatedly stressed that it is recognized by that foreign organization while other existing memory organizations are not. The faker is simply recognizing itself… Other than faking our name, the faker also tries to deny and exclude other organizations through various means for the purpose of monopolizing memory activities. It even sowed discord between us and our students and even our sponsors and induced our students to switch to it or (caused our sponsors) to terminate their cooperation with us…”

65.  The second alleged publication is another post on the Facebook page of Crazy Learning on about 12 August 2014.

66.  The words complained of are as follows:-

“本會發現最近有機構打著舉辦「公開」比賽的名號，實質卻僅是其會內的記憶聯誼活動，更以不擇手段的方式招收會員，甚至向本會一眾未成年的隊員灌輸錯誤的價值觀”

67.  The certified English translation reads:-

“We found that recently there are organizations that held what they claimed to be open championships but which were actually just internal memory activities for fun. They even recruit members by unscrupulous means and instil wrong values in our underage members.”

68.  In para 15 of the defence and counterclaim, the defendant pleads that the words collectively bore a number of meanings in their natural and ordinary meaning and/or by way of innuendo.  It is necessary for me to reproduce the plea in full below:-

“In the natural and ordinary meaning and/or way of innuendo, the Plaintiff’s Defamatory Statements mean and/or are understood to mean that:

(1) HKMSC/HKMT have wrongfully represented themselves to be HKMRT;

(2) HKMSC had wrongfully represented itself to be the sole official representative of WMSC;

(3) HKMSC has attempted, by all means possible, to exclude its competitors and to monopolize all memory sports activities in Hong Kong;

(4) HKMSC has used all means to discredit the Plaintiff and intermeddled with the relationship between HKMRT and its students and/or sponsors;

(5) HKMSC has wrongfully induced the Plaintiff’s students to breach their contracts with the HKMRT and to become members of HKMSC instead;

(6) The Hong Kong Memory Championships organized by HKMSC are merely hoaxes and to disguise their under-table deals with its members;

(7) HKMSC has been recruiting members by unscrupulous means and has indoctrinated young members with immoral values.

Particulars of Innuendo

(1) The Defendant has always been organizing memory sports activities in Hong Kong since 2013 in the name of HKMSC and HKMSA under the guidance and regulations of WMSC;

(2) The Defendant had been writing to the Plaintiff’s sponsor on 7^th May, 2014 about the misrepresentations made by the Plaintiff;

(3) The Defendant has been and is the only official body in Hong Kong authorized by WMSC to regulate memory sports activities in Hong Kong and to hold and organize the Hong Kong Memory Championships;

(4) These matters were known to many readers of the website of Crazy Learning organized by the Plaintiff associated with memory sports activities.”

69.  The plaintiff disputes liability on three grounds.

70.  First, publication.  The plaintiff admits that the words were published by Crazy Learning.  He gave evidence that it was mainly Iron Ma who was in charge of the Facebook account.  The plaintiff read the two posts two or three days later in each case.  Mr Kam Cheung, counsel for the plaintiff, confirmed in his written closing submissions to the effect that the words were posted by Iron Ma.  As a matter of law, Mr Cheung submitted that no liability can be attached to the plaintiff in such factual circumstances.  This issue turns on the construction and operation of section 12 of the Partnership Ordinance, Cap 38.

71.  Second, reference to the defendant.  The plaintiff denies that the words referred to or were capable of referring to the defendant personally.

72.  Third, whether the words bore the defamatory meanings as pleaded.  The plaintiff accepts that, subject to the issue of reference, the words were capable of bearing the meanings pleaded in paras 15(1) to (5) and (7) of the defence and counterclaim, save that the word “immoral” in the latter sub-paragraph is not accepted.  The plaintiff denies the meaning pleaded in para 15(6) as it is simply too far-fetched.

73.  In these proceedings, the plaintiff had pursued the defence of justification up until the close of evidence.  He had alleged that the defendant had approached students of Crazy Learning and asked them to join HKMT.  To substantiate that, the plaintiff called a former member of HKMRT, Leung Chun Yin, to testify at trial.  He was one of the HKMRT students who participated in the 1^st Hong Kong Open Memory Championships organised by HKMSC in 2013.  Leung claimed that in April 2014, the defendant told him that if he wanted to continue to participate in competitions held by the defendant, Leung would have to sever relationship with the plaintiff and people related to him.  However, in his written closing submissions, Mr Cheung confirmed that the plaintiff would no longer pursue the defence. 

74.  As will be seen below, the liability turns primarily on the issues of publication and reference.  If the counterclaim is upheld, the defendant seeks general damages of $30,000 for each publication.  At trial, it was confirmed that he would not pursue the injunction sought in the prayer in his counterclaim.

FACTUAL FINDINGS

75.  The factual disputes between the plaintiff and the defendant are not extensive.  The present case is not one of those cases where parties are putting forward conflicting accounts of the same events.  In fact, there had not been much personal interactions between them at the material time, which are relevant to the parties’ respective libel claims.  Contemporaneous documents do not feature prominently in the parties’ factual cases.  Therefore, when assessing the credibility and reliability of the parties, the court should focus on the inherent probabilities of their respective cases, the internal consistency of their evidence and their demeanor when testifying at trial.

76.  On the whole, the plaintiff came across as a straightforward, reliable and credible witness, whose evidence is coherent and consistent.

77.  The major factual dispute in this action is whether the plaintiff had ever represented to the outside world that he was a grandmaster of memory, whether as accredited by WMSC or otherwise, and that he was a World Memory Champion.

78.  The plaintiff’s position is a straightforward denial.  On the other hand, the defendant relies on a number of television and radio programmes in 2012 and 2013 in which the MCs or the hosts described the plaintiff as a grandmaster of memory and/or a World Memory Champion.  Mr Lun invited the court to draw the inference that the plaintiff had communicated the wrong titles to the programme hosts prior to the broadcast. 

79.  Apart from the actual utterances of the titles on those programmes, there is nothing else in support of that inference.  The plaintiff’s explanation for the description, which I have set out in paras 48 and 49, is inherently plausible.  The programme hosts might have done their own research and might not have appreciated the difference between the World Memory Championship and the Australian Open Memory Championship.  The memory sport is after all not a popular sport.  The names of the various memory competitions organised by WMSC are not well-known to the general public in Hong Kong. 

80.  In fact, as highlighted by Mr Cheung, in one of the RTHK programmes, after being introduced as a grandmaster of memory, the plaintiff in fact took the initiative to invite the MCs to call him by his last name “Ah Fung”.  It would be perfectly understandable that the plaintiff would not find it proper to correct the description on the spot and in front of a live audience.  And this is to be contrasted with the Wai Fat advertisement.  That was a situation where the plaintiff was able to cross-check the advertisement before it was printed in the newspaper.  And the factual information set forth in it was in fact accurate.  On the whole, the plaintiff’s case on this factual dispute is coherent and consistent throughout and this reinforces his credibility.

81.  By contrast, the defendant’s evidence in this regard is less than straightforward.  The new revelation regarding the Baptist University seminar is particularly surprising and troubling.  That incident would be direct evidence that the plaintiff had described himself as a memory master.  That might substantiate the crux of the defence of justification.  Yet, no mention had been made of this incident at any stage, including when the pre-action letters were exchanged.  In one of them sent by the defendant’s former solicitors, the various TV and radio programmes now relied upon were in fact referred to.  But on those occasions, the plaintiff was described as a grandmaster of memory by someone else.  As such, they would at best be indirect evidence only.  Why hadn’t the defendant mentioned the Baptist University seminar if that had in fact happened?  Why only disclosed this vital piece of direct evidence for the first time when under cross-examination? 

82.  Mr Cheung submitted that the new evidence is a recent fabrication on the defendant’s part.  That submission clearly has force.  There is no immediately apparent reason why the defendant would omit to mention the important incident throughout the proceedings.

83.  Separately, on his role in respect of the WMSC website, the defendant’s evidence is also not entirely coherent.  His pleaded case, his written statement and the contemporaneous e-mails clearly show that from July 2014 onwards, he had taken up the role of Goddard over the maintenance and updating of the statistics on the WMSC website.  The words complained of in the second claim appeared on the page showing the statistics concerning the plaintiff. Accordingly, the updating of the information on that page should clearly fall within the job duty which the defendant had taken over from Goddard.

84.  I find it difficult to reconcile that objective fact with the defendant’s allegation that he was not responsible for the content of that page.  At trial, there was a clear attempt on the defendant’s part to distance himself from the content of the WMSC website.  However, as aptly pointed out by Mr Cheung, the defendant fell short of saying positively and explicitly that he was not in a position to delete the words complained of from that page.  The defendant’s evidence in this regard is far from satisfactory. 

85.  On the whole, in view of the internal inconsistencies within his own evidence, I am not able to accept the defendant’s evidence as entirely reliable. On the other hand, I consider that the plaintiff’s evidence is truthful on the whole and accept his allegations as facts.

86.  More specifically, I make the following findings:-

(a)  The plaintiff had not represented to any one that he was a “grandmaster of memory”, a “memory master” or “記憶大師”, whether as accredited by WMSC or not.

(b)  He had not represented to any one that he was a World Memory Champion.

(c)  He did not upload the two Facebook posts complained of in the counterclaim.  Iron Ma was the person who did it.  The plaintiff only found out about the posts a few days later on both occasions.

(d)  From July 2014, the defendant took over the job function of maintaining and updating the webpage on the WMSC website showing the statistics concerning the plaintiff.  It was part of his job function to update and modify the entries there, including the words complained of in the second claim.

LIABILITY

87.  As outlined above, the first claim turns on the issue of justification whereas the second claim primarily turns on the issues of publication and justification.  For the counterclaim, on the facts as found, the issue of liability is dependent on, first, whether the plaintiff should be held liable for the words published not by him but by a co-partner under the Partnership Ordinance and, secondly, whether the words in fact referred to the defendant personally.

The first claim

88.  The defendant has now conceded that two of the three pleaded meanings cannot be justified.  The remaining issue is whether the defendant can prove that the plaintiff had committed “unlawful or wrongful activities”.

89.  Mr Cheung’s submissions are:-

(a)  Neither the plaintiff nor the defendant can legitimately claim that he or his organisation has any exclusive right to hold memory competitions or form a team to represent Hong Kong.

(b)  There is no evidence that the title “grandmaster of memory” or “記憶大師” can only be used by those accredited with such a title by WMSC.  It is clear from the evidence that when the term was used by the various programme hosts, they were using it in the same way as people are sometimes called “fung shui masters” or “風水大師”.

(c)  It would be against common sense if the defendant is claiming a monopoly over the generic word “grandmaster”.

(d)  Accordingly, the defendant has failed to identify any unlawful or wrongful activities on the part of the plaintiff.  The plea of justification must fail.

90.  I accept the submissions.  More fundamentally, however, the defendant’s case is that the “unlawful or wrongful activities” were committed when the plaintiff wrongly represented to others that he was a “grandmaster of memory” or “World Memory Champion”.  On the facts as found (see para 86(a) and (b)), the defendant’s case must fail.

91.  Accordingly, the defence of justification has wholly failed.  The defendant is liable under the first claim.

The second claim

92.  I shall first deal with the issue of publication.

93.  On the facts as found, the words complained of in the second claim were not placed on the webpage by the defendant.  However, he took over the job of updating the statistics on the WMSC website in July 2014.  That included the webpage containing the plaintiff’s statistics and records.  In doing so, he “inherited” the offending words.  I have found that it was in fact within his job function to update the page concerning the plaintiff.  Mr Lun also confirmed that after the defendant took over the job, he knew about the offending words on the page.  The question is therefore this.  In these circumstances, by not removing the offending words from the webpage, had he turned himself into a publisher of the words as a matter of law?

94.  In my view, the principles established in Bryne v Deane [1937] 1 KB 818 and Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 should apply by analogy.  In Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366, those principles are summarised as follows, at para 44:-

(a)  Where a third person writes or affixes a statement defamatory of the plaintiff on the occupier’s property without the occupier’s knowledge, the occupier is not treated as a publisher of that statement prior to his becoming aware of it.

(b)  Once the occupier discovers its existence, he may be treated as a publisher but only if, having the power to do so, he does not remove or obliterate the offending statement in circumstances which justify inferring as a matter of fact that by his inaction he has consented to or ratified its continued publication.

(c)  Where the occupier becomes aware of the libel but the circumstances show that removal or obliteration is very difficult or very expensive, the fact that the defamatory statement is not expunged may well not justify the inference that it remains in place with his approval.

95.  The present case differs from the situation contemplated above in three ways.  First, the principles concern words appearing on a physical medium.  In Bryne v Deane, the offending words appeared on a typewritten paper put up on the wall of a private golf club.  In Urbanchich, the offending publication was a poster affixed to bus shelters.  Here, the words appeared on the internet.  Secondly, those principles concern the liability of an occupier of the place.  In Bryne v Deane, the defendants were the proprietors of the club whereas in Urbanchich, the defendant was the Urban Transit Authority of New South Wales and the bus shelters in question were under its control.  In our case, the defendant was not the owner of the WMSC website.  He was someone who was in a position to update the webpages because he had been requested by WMSC to do so.  Thirdly, here, the words were posted on the website when the defendant was not yet the “occupier”.

96.  However, I consider that the principles established in the Bryne v Deane line of cases should apply to the present case with equal force.  The factual situations involved are in substance the same, namely that words were “forced on” a person who was in a position to do something about them because he had some control over the place where the words appeared.  The differences highlighted above are not material.

97.  Applying the principles, I consider that the defendant’s failure to remove the words complained of from the webpage gives rise to an inference that by his inaction he had in fact consented to its continued publication and had turned himself into a publisher of the words.  It was within the defendant’s power to remove the words and the removal would not be difficult.  I should also point out that the offending words were similar to the words in the Wai Fat letter both in format and content.  It would be recalled that that letter was sent by the defendant to Wai Fat about two months before he took over the updating job.  This fact further reinforces the inference that the defendant had consented to the continued publication of those words on the webpage.

98.  For the above reasons, I hold that the defendant should be regarded as having published the words complained of in the second claim in July 2014.

99.  By way of footnote, I would add the following.   

100.  For the purpose of libel, internet material is published when and where it is accessed or downloaded in comprehensive form: see, eg, Oriental Press at para 68.  In the statement of claim, the plaintiff pleads that the WMSC is “accessible to the public”.  He has however adduced no evidence on when or how often it had indeed been accessed or downloaded. 

101.  Having regard to the nature of WMSC as an international body set up to regulate the memory sport and organise memory competitions, I am prepared to draw an inference that its website is indeed accessible to the general public. As such there is a prima facie case that the offending words appearing on it are published as a matter of libel law.  (But there is no prima face case that the publication was to a substantial number of persons.  This point would be relevant when it comes to assessing quantum of damages if liability is established.)  The defendant has not adduced any evidence to rebut the prima facie case.  I am therefore satisfied that the words appearing on the WMSC website were published.  See, eg, Oriental Press Group Ltd v Inmediahk.net Ltd [2012] 2 HKLRD 1004 at paras 54-55; Gatley on Libel and Slander (12^th ed) at para 6.21.

102.  I now turn to the issue of justification.  Based on the defendant’s concession set out in para 60 and the facts as found in para 86(a) and (b), the plea of justification must fail. 

103.  The defendant having failed on the two issues in dispute, I hold that he is also liable under the second claim.

Damages

104.  As a matter of general principle, in cases of libel, a plaintiff is entitled to look to an award of damages sufficient to vindicate his reputation according to the seriousness of the defamation, the range of its publication and the extent to which the defendant has persisted with the charge: Gatley at para 9.4.

105.  In respect of the first claim, I take into account the following matters when assessing damages.  The Wai Fat letter was only published to one person. However, the words conveyed to the reader the message that the plaintiff was dishonest and had committed unlawful or wrongful activities.  It was a serious allegation, harming the plaintiff’s personal and business reputation.  In respect of the second claim, similarly, the words were highly defamatory.  On the other hand, as far as the extent of publication is concerned, it is unclear how many people had in fact accessed or downloaded that webpage on the WMSC website. 

106.  The plaintiff asks for $100,000 as general damages for both claims whereas the defendant contends that a sum of $30,000 for each claim would be appropriate.  On the whole, having considered the authorities cited by counsel, I would make a total award of $90,000.

107.  As regards the claim for special damages in the sum of $200,000, I am not satisfied that the plaintiff has proved that that sum represents the loss suffered as a result of the libel.  There was no contract between the plaintiff or Wai Fat for future sponsorship.  In other words, there was no commitment on either side to continue the sponsorship arrangement.  The only evidence before me is the plaintiff’s own assessment that the sponsorship would be for a total period of three years.  However, he had not put forward any factual basis in support of such an assessment.  For example, it is not the case where the relationship had been an ongoing one and the plaintiff could therefore predict with some confidence that the sponsorship would be renewed the following year.  It is also not the case that Wai Fat had said something to the plaintiff which would indicate that it would likely continue the relationship after the current year. Therefore, the plaintiff’s own assessment seems to me to be a pure guess and is therefore wholly speculative.  I therefore decline to award the special damages to the plaintiff as claimed.

The counterclaim

108.  I shall first deal with the issue of publication.

109.  On the facts as found, the two offending posts were not uploaded to Crazy Learning’s Facebook page by the plaintiff but by his co-partner, Iron Ma.  The defendant relies on section 12 of the Partnership Ordinance, which is identical to section 10 of the Partnership Act 1890, to establish liability on the part of the plaintiff.

110.  Section 12 provides as follows:-

“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act.”

111.  The operation of the above provision in the context of libel claims is explained in Gatley at para 8.27.  The section assimilates the vicarious liability of partners to that of employers for the torts of their servants for the firm is also liable for torts committed by any agent or servant of the firm acting with their authority and consent, or within the scope of his employment.  The learned editors continue as follows:

“Partners can therefore be sued jointly for any defamatory words published by one of their number with their authority or while acting in the ordinary course of the firm’s business. The fact that a partner acts dishonestly or with the intention of causing harm to the claimant or to serve his personal ends does not preclude the act being in the ordinary course of business of the firm.”

112.  Where liability is attached to a co-partner by operation of this statutory provision, it is a form of secondary liability: Meekins v Hanson [1964] 1 QB 472 at 477.

113.  Mr Cheung’s submission is that section 12 of the Partnership Ordinance has no application in defamation.  His research has revealed no precedent in Hong Kong or England in which a partner was held liable for defamation committed by a co-partner.  He said that “it is literally unheard of that a partner has been held liable for a defamatory statement made by his co-partner”.  As a matter of principle, he submitted that “going out and defaming another person” could not possibly be within the ordinary course of business of a partnership.

114.  In light of the above passage quoted from Gatley, I am unable to accept the submission.  In the present case, the plaintiff did not authorise Iron Ma to post the offending words online.  The material question is instead whether Iron Ma did so in the ordinary course of business of Crazy Learning. 

115.  It seems clear to me that the answer must be “Yes”.  The posts appeared on Crazy Learning’s Facebook page.  The first post was expressly addressed to the students of HKMRT and Crazy Learning and their parents.  The second post originally appeared on HKMRT’s Facebook page but was subsequently “shared” by Crazy Learning on its own Facebook page.  The purpose of the two posts was to alert the readers to the “faker” organisation which was active in the field of memory sports.  The message was clearly sent to protect the business interest of Crazy Learning.  On the plaintiff’s own evidence, there was a division of work between him and Iron Ma in the running of the business of Crazy Learning. Iron Ma was responsible for the maintenance of the website and communication with parents.  Having taken into account all these matters, I conclude that the offending words were posted in the ordinary course of business of Crazy Learning.

116.  Accordingly, by operation of section 12 of the Partnership Ordinance, the plaintiff would bear a secondary liability if Crazy Learning is found to be liable for defamation by reason of its publication of the two posts.

117.  I now turn to the issue of reference.

118.  It is trite that it is an essential element of the cause of action for defamation that the words complained of should be published of and concerning the plaintiff.  A plaintiff need not be referred to by name. The test is whether he may reasonably be understood to be referred to by the words: see, eg, Knupffer v London Express Newspaper Ltd [1944] AC 116 at 118 and 121; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1247 F-H; Gatley at paras 7.1 and 7.2.  In Knupffer, the test was formulated as “whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to” (at 119).

119.  In the recent Court of Appeal decision in Law Chi Ching v Apple Daily Ltd [2017] 1 HKLRD 1028, Cheung JA stated the law as follows, at para 6.1:-

“The law, which is not in dispute, is that if a plaintiff is not referred to by name and the facts linking the plaintiff to an article are not generally known, there is no actionable publication unless it is shown that the words are published to persons with knowledge of extrinsic facts and that reasonable persons with such knowledge would have understood the words as referring to the plaintiff. …”

120.  As a matter of pleading, therefore, a plaintiff must identify himself as the person defamed.  Where it is not absolutely clear on the face of the words that they refer to the plaintiff, he should make clear in his statement of claim the basis on which he claims to have been identified as the subject of the words complained of.  He should set out the connecting facts which establish the link between himself and the words used, and he should make plain his case as to the existence of a person or persons who in fact linked him with the words by reason of their knowledge of those connecting facts.  These matters are material facts which must be pleaded: see Gatley at para 26.26.  Needless to say, at trial, the plaintiff must adduce evidence to make good his pleaded case.

121.  The principles stated above obviously apply to the words complained of in the counterclaim. 

122.  Throughout the two posts, the defendant’s name was not mentioned at all. Furthermore, in the two posts, Crazy Learning was complaining about “an organisation”, which was engaged in a number of wrongful activities, including, eg, faking the name of “Hong Kong Memory Representing Team”.  The name of the organisation was not mentioned either. 

123.  Applying the above principles, it is incumbent on the defendant to plead, first and foremost, that he was the person defamed.  He should also plead the connecting facts which establish the links between him and the “organisation” and, furthermore, the existence of a reader or readers of the Facebook page of Crazy Learning who had knowledge of those connecting facts. At trial, evidence should be adduced in support of these pleas.

124.  I have reproduced the relevant pleas in the defendant’s counterclaim in para 68 above.  It is immediately notable that the defamatory meanings, as pleaded, are all of and concerning HKMSC (and, in one of them, HKMT as well), instead of the defendant himself.  The plea is problematic in this respect.  Strictly speaking, the counterclaim, as pleaded, does not disclose a libel case actionable by the defendant in the first place, unless it can be shown that legally speaking, HKMSC is in effect the defendant.  There is however no evidence before the court on the legal nature of HKMSC as an organisation. 

125.  But even assuming that the pleading can be construed to say that the two posts contained statements defamatory of and concerning the defendant (which I do not accept), the burden is still squarely on the defendant to prove the existence of a reader or readers of the Facebook page of Crazy Learning who had knowledge of such facts as would lead them to understand that either (a) the “organisation” referred to was HKMSC and then to link HKMSC to the defendant personally or (b) the “organisation” referred to was the defendant himself. 

126.  Mr Lun submitted that the readers of the Crazy Learning Facebook page would be those active in the memory sports in Hong Kong and the court should draw that inference of fact accordingly.  I am prepared to assume that the readers of the posts would likely take the reference to the “organisation” in the posts to mean HKMSC, given that HKMSC was the organiser of the 1^st Hong Kong Open Memory Championships in September 2013.  But that is as far as the defendant’s evidence could go.

127.  Mr Cheung submitted that there is not a shred of evidence that the words were capable of referring to the defendant personally.  The defendant has not sought to adduce any evidence at all to show that the readers would associate HKMSC with him personally because he has chosen not to call any witness or adduce other evidence to substantiate that.  The readers would be able to make such association only if they had knowledge of the relationship between the defendant and HKMSC and WMSC in the first place.  The requisite knowledge would include knowledge of the matters pleaded under the heading “Particulars of Innuendo” in para 15 of the counterclaim.  For instance, the defendant should prove that a reader knew that the defendant was the only official body authorised by WMSC to organise the Hong Kong Memory Championships – see para (3) of the particulars.  But such evidence is lacking.  There is also no proper basis to infer that the readers would know the relationship between the defendant and WMSC in detail.  The defendant, Mr Cheung submitted, must fail on the issue of reference. 

128.  I accept that submission.  There has indeed been no attempt by the defendant to adduce any direct or indirect evidence to show that the readers of the posts possessed the pleaded knowledge for them to connect the “organisation” to the defendant personally.

129.  In sum, as a matter of both pleading and evidence, the defendant has failed to show that the offending words were of and concerning him. For that reason, I hold that the defendant’s counterclaim based on the two posts of Crazy Learning on its Facebook page fails.  It is therefore unnecessary to deal with the third ground relating to defamatory meanings put forward by the plaintiff.

130.  I would add that if I am wrong on the issue of liability, I would assess damages in favour of the defendant in the sum of $60,000.  That was the sum put forward by Mr Lun in his closing submissions.

CONCLUSION

131.  I order that there be judgment in favour of the plaintiff in the sum of $90,000, with interest at judgment rate from the date of writ to payment, and that the counterclaim be dismissed.   I further make an order nisi that the plaintiff do have costs of the action and the counterclaim, to be taxed if not agreed, with certificate for counsel.