WONG SUI FUNG v. DR YIP SIU KEUNG

HCA 5595/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5595 OF 2000

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J U D G M E N T

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1. On 23 September 2003, I handed down a judgment in this action after trial. Judgment was ordered to be entered for the Defendant against the Plaintiff. I also made a costs order nisi that the Defendant be given his costs of the action. This is the Plaintiff's application to vary the costs order nisi, arguing that there should be instead no order as to costs.

2. It cannot be disputed that the general rule regarding costs is that costs should follow the event. It is for the unsuccessful Plaintiff to persuade the Court that the prima facie rule should be displaced to the extent suggested by her in the particular circumstances of this case.

3. Mr Lok, appearing for the Plaintiff, argues that his client succeeded on the issue that consumed much of the time of trial, i.e. justification, and only lost on the relatively short matter of qualified privilege. Relying on passages from Price, Defamation Law Procedure and Practice (2nd ed.) para 34-05 and Gatley on Libel and Slander (9th ed.) para 35.17, Mr Lok argues that an order that each party bear its own costs is a fairer one.

4. In my judgment, Mr Lok's argument is an over-simplification of what happened at the trial. In short, the Plaintiff alleged a number of libellous imputations against the Defendant. The defence of justification related to most if not all of these alleged libellous imputations. At the end of the day, I concluded in paragraph 91 of my judgment that the Plaintiff's case of defamation based on these various libellous imputations as pleaded in paragraphs 4 and 5 of the Amended Statement of Claim failed because of the defence of justification, save and except the libellous imputations in paragraph 4(c), (d) and (f) which were, of course, subject to the Defendant's further defences of fair comment and qualified privilege. A substantial part of the trial was expended on the Defendant's establishing his defence of justification in relation to these other libellous imputations alleged by the Plaintiff which, at the end of the day, the Defendant was successful in doing.

5. Mr Lok argues that the Defendant's conduct of the matter was "improper" in that shortly after the alleged libellous letter was written, the Plaintiff wrote to the Defendant asking for retraction and apology, and that was never done. So Mr Lok argues that the litigation was brought upon by the Defendant himself. Again, with no disrespect to counsel, that is an over-simplification of the matter. As I eventually held in the judgment, the Defendant in writing the letter of complaint in question was protected by qualified privilege, the Plaintiff having failed at trial to establish malice against the Defendant. In those circumstances, there was no question of the Defendant needing, as a matter of strict law, to retract the letter of complaint or to offer any apology to the Plaintiff. Put at the lowest, I simply cannot conclude on those facts that the litigation was brought upon by the Defendant himself.

6. Finally, Mr Lok in paragraph 8 of his written skeleton expresses his understanding that in my judgment, I found the action commenced by the Plaintiff to have been a frivolous one. I am not sure if that is a correct reading of my judgment, but in any event that does not really matter. I fail to see how that could assist the Plaintiff in seeking to displace the prima facie rule that costs should follow the event.

7. Having considered Mr Lok's oral as well as written submissions, I can really see nothing or nothing sufficient that would disapply the general rule.

8. In those circumstances, I dismiss the Plaintiff's application and instead order that the costs order nisi that I made be made absolute. As regards the costs of today's hearing, subject to counsel's submission, I would order that they form part of the costs of this action.

[Further submissions on costs]

9. Having heard counsel further, I am not persuaded that a more stringent basis of taxation should be imposed in respect of today's costs, despite Mr Chan SC's very persuasive argument to the contrary.