GUYON MARC DUY AN v. BERTRAND ANTOINE JUBAULT AND ANOTHER

DCCJ 2561/2023

[2024] HKDC 284

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2561 OF 2023

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BETWEEN

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DECISION

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Background and procedural history

1.  This is an application by the Plaintiff (“P”) by Summons dated 13 September 2023 (“the Summons”) against the 1^st Defendant (“D1”) and the 2^nd Defendant (“D2”) (collectively, “Ds”) for judgment in default of defence under O 19, r 7 of the Rules of the District Court, Cap 336H (“RDC”).

2.  P is a French national but also a permanent resident of Hong Kong.

3.  D1 is also a French national and a permanent resident of Hong Kong. He is and was at all material times the director and employee of D2, a limited company incorporated in Hong Kong.

4.  This action was commenced by P by a writ of summons endorsed with a Statement of Claim (“SOC”) issued on 23 June 2023.

5.  According to §§4-7 of SOC:

(1) on 29 April 2023, D1 published, or caused to be published, in a social media post within the Facebook Group “French HK Moms”, words which are defamatory to P;

(2) on 29 April 2023, D1 published, or caused to be published, in a Facebook Post and comments section on a social media post on his personal social media page, words which are defamatory to P; and

(3) on 3 May 2023, D1 in his own name and/or on behalf of D2 published, and/or caused to be published, words in an email and its attachments sent to 7 recipients which were defamatory to P.

6.  A total of 10 allegedly defamatory statements and their English translations have been pleaded as being published or caused to be published by D1 and/or D2 (collectively, “the Published Words”):

(1) “CFI (created in 2022, but which according to the latest news still has no legal status, charter, or other regulation defining its mode of operation)”;

(2) “When people will also learn about his behaviour in Hong Kong for years they will realise that duplicity does not last too long in the era of social networks”;

(3) “He did much worse at UFE Hong Kong …”;

(4) “Abusive usage of UFE HK’s resources for his personal gain”;

(5) “Open threats … threats and intimidations”;

(6) “Attempted embezzlement of UFE HK’s funds”;

(7) “Proven blackmail on underage staff”;

(8) “Brutality on his child student (6 to 16 years old)”;

(9) “Sometimes he went on ‘mission’ for the UFE in surprising places and for surprising reasons … for his political party, to campaign in Thailand among the French people settled there, during the end of year celebrations. But taking his family too. (who pays for the holidays?)”; and

(10) “He is no more than a narcissistic pervert looking to rule over a court”.

7.  The natural and ordinary meanings of the Published Words are also pleaded in SOC, §§4-7.

8.  It is further pleaded that the publication of the Published Words referred to P by name or were understood to refer to P.

9.  P claims that, as a consequence, his reputation has been seriously damaged and he has suffered considerable distress and embarrassment.

10.  He claims the following relief:

(1) Damages for libel;

(2) Special damages;

(3) Aggravated damages;

(4) Exemplary damages; and

(5) An injunction restraining Ds and each of them, whether by themselves, their servants or agents or otherwise, from further publishing or broadcasting, or causing to be published or broadcasted, the Published Words or any words similarly defamatory of P.

11.  According to a letter from the Registrar of the District Court dated 31 July 2023, an Acknowledgement of Service and Defence were purportedly filed for D1 and D2. However, the Acknowledgement of Service and Defence were not accepted for filing for D2, being a body corporate, as it did not comply with O 5A, r 2(2) of RDC.

12.  On 5 October 2023, a homemade Defence and Counterclaim (“D&CC”) was filed by D1 acting in person. The time prescribed for the filing of his defence had by then expired under O 18, r 2 of RDC. An application for extension of time to file D&CC out of time under O 3, r 5 of RDC was necessary. D&CC was therefore filed without leave. Moreover, according to Mr Levaire, counsel for P, D1 has never served D&CC on P.

13.  At the first hearing of the Summons on 12 October 2023, I had explained to D1, who appeared before me in person, that as the matter then stood, D2 has not given any valid notice to defend or to file any defence. Furthermore, I also explained that as D&CC filed by D1 was out of time, leave was required to file the same out of time.

14.  I then adjourned the hearing for:

(1) D2 to take legal advice on whether D2 will carry on these proceedings by solicitor or by a director duly authorized by D2, and if the latter to go to the Registry to make the necessary declaration to satisfy the requirements under O 5A, r 2(2) of RDC and file the acknowledgement of service and defence of D2;

(2) D1 and D2 (the latter whether by solicitor or by a director if leave has been obtained from the Registry for a duly authorized director to act for D2) to take out a summons supported by an affirmation for an extension of time for the filing of D&CC (and in the case of D2 also to file its Acknowledgment of Service out of time) pursuant to O 3, r 5 of RDC; and

(3) P to consider whether consent will be given for the late filing of D&CC if such an application is made, and in any event, whether P will continue with his application for default judgment in light of D&CC which D1 and D2 wished to file out of time. If P wishes to continue to pursue the Summons, this should be fixed for hearing together with any application for extension of time before a judge in chambers with estimated time of 3 hours in consultation with the diary of P’s counsel.

15.  I accordingly then ordered:

(1) the Summons be adjourned for parties to consider their positions in light of D&CC filed without leave;

(2) D1 and D2 to make any application for extension of time to file D&CC within 7 days;

(3) The parties to agree directions for the disposal of the Summons. If no agreed directions can be reached on or before 26 October 2023, the parties are to apply to this court for further directions by me on paper; and

(4) Costs of the hearing be reserved.

16.  On 19 October 2023, D1 filed an Affidavit which stated that he has been authorized by D2 to represent D2 and attached a minutes of meeting dated 18 October 2023 which stated that it was resolved that D1, sole director of D2, is authorized to represent D2 in this action. Mr Levaire submitted that that board resolution should have been duly certified by another director or the secretary of the company and has not complied with the requirements of O 5A, r 2(2) of RDC.

17.  On 25 October 2023, D1 filed an Affirmation in opposition to the Summons. Even though it was stated inter alia therein that he would “ask the court to accept my filing of defense out of time”, no proper application was made to file D&CC pursuant to my order.

18.  Accordingly, on 2 November 2023, I directed the parties to fix the date for hearing of the adjourned hearing of the Summons.

19.  Today is the adjourned hearing of the Summons. Notwithstanding my previous directions and orders, there has still not been any application by way of Summons for leave to file D&CC out of time. I will therefore proceed on the basis that Ds have failed to file any defence and P are entitled to proceed with the procedure under O 19, r 7 of RDC.

Service

20.  According to the affirmations of service filed by P, the Writ of Summons, SOC, notice of intention to enter default judgment and the Summons together with the supporting affirmation, were served by registered post or insertion through letter box on D1 and D2 at their last known addresses in Hong Kong.

21.  D1 and D2 appear in person today. Mr Levaire no longer takes any issue with D1’s authority to act for D2.

Applicable principles

22.  The applicable principles on an application for default judgment under O 19, r 7 are well-settled. The power to grant judgment under O 19, r 7 is discretionary. The court is required to scrutinize whether the matters pleaded in the Statement of Claim entitle the plaintiff to the judgment sought. The court’s decision is made on the basis of the pleaded facts, rather than on the evidence: see Hong Kong Civil Procedure 2024, Vol 1, §§19/7/11 and 19/7/13; and Cheung Sai Lon v Cheung Sai Ha & Anor [2020] HKCFI 2551, §§30-31.

23.  As for declaratory reliefs, the rule of the court that a declaration will not be granted when giving judgment by consent or in default without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled. The court will consider whether the declaratory relief is properly made out on the pleading and whether it is appropriate in the overall exercise of discretion for such relief to be granted without a trial. See Hong Kong Civil Procedure 2024, Vol 1, §§19/7/14 and 19/7/20 and Cheung Sai Lon, §32.

24.  Furthermore, in order to succeed in a claim for defamation, the claimant has to show that defamatory matters with reference to the claimant have been published by a defendant. The matters published are defamatory if they expose the claimant to contempt and ridicule by others and cause others to shun him. The matters would also be defamatory if they lower the claimant’s estimation in the eyes of right-thinking members of society and adversely affect his reputation: see Bawang International (Group) Holding Limited & Another v Next Magazine Publishing Limited (unrep) HCA 1109/2010, 23 May 2016, §§23-24.

Analysis

25.  Having reviewed SOC, I am satisfied that the Published Words have, in their natural and ordinary meanings, the meanings as pleaded. I am also satisfied the Published Words were defamatory by tending to lower P’s estimation in the eyes of others and adversely affect his reputation.

26.  Furthermore, the Published Words referred to P or persons acquainted with P would reasonably in the circumstances believe that P was referred to.

27.  Although the Published Words were published or caused to be published by D1, I am satisfied in so far as to the Published Words as pleaded in paragraph 7 of SOC were concerned, they were published by D2’s email account and the email signature displayed the graphics illustration of the business name of D2, such that D2 had also published, or caused to be published, the same.

Disposition and orders

28.  Accordingly, I will order judgment in favour of P for libel: (a) against D1 in respect of the Published Words; and (b) against D2 in respect of the words published as pleaded 7(a), 7(b), 7(c), 7(d), 7(e), 7(f) and 7(g) of SOC, with damages to be assessed.

29.  I will decline to exercise my discretion to grant the declarations sought in the Summons because such relief and basis for such relief has not been pleaded in SOC.

30.  Given my conclusion on the claim for libel, there being no reason why P should not be granted the injunction sought, I will also grant an injunction restraining D1 and D2, whether by themselves or through their servants or agents or otherwise, from further publishing the Published Words or similar words defamatory of P.

31.  I will also order D1 and D2 to pay P’s costs of this action (including costs of the Summons) together with all reserved costs, to be taxed if not agreed, with certificate for counsel.