OMAR, ZARINA v. CHOW YEE PING AND ANOTHER

HCA 3699/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3699 OF 2002

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Dates of hearing: 20-22 July 2004

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J U D G M E N T

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Background

1.  This is a libel action between three neighbours.

2.  The Good Luck Mansion Co-operative Building Society, Limited (“the Society”), a society registered under the Co-operative Society Ordinance (Cap. 33) was formed in 1960 by some civil servants.  The purpose of the Society was to acquire land from the Government for the purpose of erecting buildings to house members of the Society.  In due course, land was acquired and three adjacent buildings, collectively known as Good Luck Mansion, were erected at Nos. 183 - 193 Sai Wan Ho Street, Shaukeiwan, Hong Kong.  The buildings comprise 30 units in total.

3.  Management of Good Luck Mansion is governed by the provisions in the Ordinance, the Co-operative Society Rules made under the Ordinance as well as the By-laws of the Society.  Annual general meetings (“AGM”) of members of the Society have to be held on a yearly basis, whereas the day-to-day management of the buildings is in the hands of the Executive Committee for the year.  The Committee comprises a Chairman, a Treasurer, a Secretary and two other members.

4.  The Plaintiff, a civil servant, became a member of the Society and a “tenant” under an underlease signed with the Society in 1991, whereby she became entitled to exclusively use and occupy the 4^th floor premises of No. 189, Sai Wan Ho Street, one of the six top floor units in Good Luck Mansion.

5.  The Plaintiff was a member of the Executive Committee of the Society for the year 2000/2001.  She was the Secretary (or “Duty Secretary”).  The tenure of the Executive Committee came to an end in May 2001.  An AGM (the 45^th) of the members of the Society was held on 19 May 2001.  In the meeting, which was attended by members representing 23 units in Good Luck Mansion, the minutes of the last AGM was approved, and so were the financial statements for the year 2000/2001.  According to the draft minutes subsequently prepared by the Plaintiff as Secretary and her oral evidence, at the meeting several resolutions were passed as follows:

“4.     The Hon. Secretary reported the following: -

         …

e)    The matter concerning the flower plants on the roof floors was discussed.  It was resolved that these plants could be kept but should be moving to the floor area.

f)        It was resolved that the in-coming committee should make arrangement to take away the big flowerpot from the roof floor of No. 189.

5.       The water leakage problem occurring on all the top floors of the buildings was discussed.  Mrs Zarina Omar Cheng of the 4/Floor of No. 189 has made a complaint that there was a serious water leakage problem on the ceiling of her flat causing some concrete were dropped down.  It was resolved that the waterproof Specialist should be consulted for remedial actions to be taken.  It is also suggested that a working group should be formed for speeding up the process.  It was also resolved that a total sum not more than HK$400,000.00 to be allocated for rectifying the water leakage problem on the roof floors & the ceilings of all the fourth floors.”

6.  At this juncture, it should be noted that according to rules 28 and 29 of the Co-operative Society Rules (there being no contrary provisions in the By-laws of the Society),

“28.   Voting at general meeting

Any question submitted to the decision of the members present at a general meeting, unless otherwise dealt with in the rules, shall be decided by a majority of votes.

29.    Method of voting

(1)          At any meeting a resolution put to the vote shall be decided on a show of hands, unless voting by call of names or a ballot is demanded by at least five of the members present before the declaration of the result of the show of hands, and in such case voting by call of names or a ballot shall be taken as the case may be.

(2)          The chairman shall have an ordinary vote and in case of an equality of votes shall be entitled to a casting vote.  In the case of a meeting convened by the Registrar and presided over by him or his representative, he or his representative shall not be entitled to vote except on an equality of votes, in which case they shall have a casting vote.

(3)          In respect of every resolution put to the vote the chairman shall declare whether it has been carried or lost, and whether on a show of hands or unanimously or by a particular majority, and an entry to that effect in the minute book shall be conclusive evidence of anything therein contained.”

7.  The Plaintiff said in evidence that the procedural requirements under the rules were not followed in passing the resolutions in question.  She said that according to her knowledge, understanding and belief, the procedural requirements had seldom been followed.  In fact, this was still the case up to the last AGM that had been recently held for the current year.  She explained that what happened was that in the meeting, members were free to make any proposals.  If a proposal was raised, and someone objected to it, the objection would be voiced, and members would discuss the matter; if there were still people objecting to the proposal after discussion, the proposal would not be carried.  However, if the proposal was raised and nobody raised any objection, the proposal would be regarded as passed; no formal voting would be involved.  She said that the resolutions in question, particularly the resolution recorded in paragraph 5 of her draft minutes that has been extracted above, were “passed” in the meeting in such circumstances.  She explained that in the meeting, the members had passed a resolution (in the above sense) to repair the roofs of the buildings which were badly in need of repair.  Subsequently in the meeting, she raised the question of water damage to the ceiling of her top floor premises as well as an adjacent top floor premises, and she pointed out the presence of cracks in an external wall of the buildings.  She suggested that repair work be done to these damaged ceilings at the same time when the roofs were repaired.  Nobody objected to the suggestion, save that the members agreed that a ceiling of $400,000 should be imposed on the repair work.  That was an affordable amount because the reserve fund of the Society was in excess of $400,000.  In those circumstances, she regarded a resolution to repair the roofs and the ceilings as having been duly passed.  Thus when she prepared the draft minutes subsequently, she put down the resolution in paragraph 5 of the draft minutes.

8.  The draft minutes were co-signed by the Plaintiff as Secretary and a Mr Wong as Chairman.  They were to be ratified in the next AGM (the 46^th).

9.  In the AGM on 19 May 2001 (which was the 45^th), the members also elected a new Executive Committee (the 46^th).  It comprised, among others, the 1^st and 2^nd Defendants, who became the Secretary and Treasurer respectively of the incoming Executive Committee. 

10.  After the draft minutes were prepared and signed, they were sent to all members of the Society and posted on the notice boards at the lobbies of the buildings comprising Good Luck Mansion.

11.  However, the new Executive Committee found the resolutions set out in the draft minutes problematic.  Members of the new Executive Committee were of the view that the resolutions recorded in paragraph 4(e) and (f) of the minutes were mutually contradictory and difficult to implement. 

12.  More importantly, the new Committee, as per the evidence of the two Defendants as well as the contemporaneous documents, had serious reservations and doubts regarding the validity and rationale of the so-called resolution recorded in paragraph 5 of the draft minutes.  Their attitude was based on a number of matters or grounds, namely that the formal voting procedure had not been followed in passing the so-called resolution, “public money” belonging to the Society was to be used to repair “private” premises (i.e. the ceilings), and the very substantial amount involved (the Society only had funds slightly exceeding $400,000 – the ceiling of the repair expenditure).  The Executive Committee was particularly concerned that three of the members of the last Executive Committee, including the Chairman (Mr Wong) and the Plaintiff who co-signed the minutes recording the purported resolution, as well as two of the members of the current Executive Committee (including the 2^nd Defendant) were occupants of top floor premises in Good Luck Mansion.  The use of money belonging to the Society as a whole to repair the ceilings of their respective top floor premises would, so it was apprehended, give rise to possible accusations of misappropriation of public funds for personal use against not only the former Executive Committee members, but also the two current members of the Executive Committee including the 2^nd Defendant, if the current Committee were to implement the so-called resolution recorded in the draft minutes.

13.  According to the evidence of the two Defendants, after the minutes were prepared and circulated amongst the members of the Society, they received several complaints from members regarding whether the purported resolution had been passed and the justification for the resolution.

14.  By reason of all this, the new Committee, according to the evidence of the two Defendants, thought it prudent to suspend the implementation of the purported resolution in so far as it related to the repair of the ceilings.  On the other hand, as regards the repair of the roofs, the Executive Committee saw the urgency to carry out the repair (which had not been done for almost 8 or 9 years) to take advantage of the forthcoming dry season in Hong Kong.  Moreover, as opposed to repairing the ceilings which would require the co-operation of the occupants of the top floor premises, the repair work to the roofs would be relatively straightforward.  Yet because of their doubts regarding the validity of the purported resolution as a whole, the Committee thought it best to seek confirmation from the members of the Society by means of a questionnaire first before carrying out any work, so that any work to be done would be based on the authorization of the members, not under the so-called resolution, but the replies to the questionnaire.  The questionnaire was eventually sent out after the Committee had obtained various quotations from contractors.

15.  The questionnaire was accompanied by a notice (the “6^th Notice”) issued by the Executive Committee to all members of the Society.  As explained above, the 6^th Notice only referred to the repair of the roofs.  It made no mention of any repair to the ceilings.  According to the correspondence and the evidence, the Plaintiff found this disagreeable because she felt that a resolution had been passed in the last AGM requiring not only the repair of the roofs, but also that of the ceilings.

16.  The Plaintiff said in evidence that in fact she was the person who suggested that the ceilings should be repaired because substantial water damage had been done to the ceilings due to the lack of repair to the external wall (as well as the roofs).  She thus wrote a letter dated 12 November 2001 to the Executive Committee.  The letter queried the method of carrying out repair to the roofs recommended by the Executive Committee in the 6^th Notice.  The letter also queried why the repair work was limited to the roofs but did not cover the ceilings, as had been resolved in the last AGM.

17.  By letter dated 16 November 2001, the Executive Committee gave a point-by-point reply to the Plaintiff’s queries.  In particular, the Committee explained its views on the validity of the purported resolution thus:

“在2000-2001年度全體會員大會上，所有會員均可自由發言，各有所求，自說自話，但要成為大會之決議，必須要有一名會員提議，至少有另一名會員和議及確定無會員反對方可，如有任何會員反對，則一定要經全體與會會員正式投票議決。閣下所指之會議記錄，只屬草稿，必須在明年五月之全體會員大會上邀請會員動議，經和議及無反對下通過，在此之前，任何會員均可提出反對及要求修改，閣下身為上年度之秘書，應當明白正確之會議及表決程序，不應亂作會議紀錄，並強指某些個人意見為大會之有效決議，肴亂視聽，現在更反而要求本年度執委會解釋，份屬無理，不難令人產生合理之懷疑，閣下應考慮對此作出適當之檢討及交代。

至於閣下要求用公共資金替閣下維修單位內之天花，屬非份要求，任何人士將此項工程列入天台維修費用屬公私不分，一旦發現，後果可能極端嚴重，會方因此斷然否決。”

18.  Wholly dissatisfied with the reply of the Executive Committee, the Plaintiff took the matter to the Registrar of Co-operative Societies appointed under the Ordinance.  By letter dated 21 November 2001, the Plaintiff set out her case before the Registrar and in particular, she questioned the Executive Committee’s refusal to fully implement the resolution that (according to her) had been duly passed in the last AGM of the Society.  She invited the Registrar to intervene and resolve the dispute between the parties.  The Plaintiff also notified the Executive Committee on the same day of her letter that she had written to the Registrar.

19.  On 4 December 2001, the Registrar replied to the Plaintiff.  Amongst other things, he pointed out that the Executive Committee had the duty to fully implement a passed resolution of an AGM of the Society; yet if the Executive Committee encountered great difficulties in implementing the resolution or if the resolution was highly controversial, it was quite open to the Executive Committee to submit the matter to the discussion and determination of the members as a whole, with a view to obtaining necessary modification or amendment of the original resolution.  The Registrar urged all parties concerned to adopt a co-operative attitude to resolve the dispute.  The letter was copied to the Executive Committee.  By letter dated 12 December 2001, the Registrar wrote to the Chairman of the Executive Committee regarding the Plaintiff’s complaint.  The letter said:

“本署於2001年5月28日收到貴社寄來上述大會會議記錄，其中第5項記載：It was resolved that a total sum of not more than HK$400,000.00 to be allocated to rectifying the water leakage problem on the roof floors and the ceilings of all the fourth floors。既然有社員對貴理事會就該事項的處理方法提出異議，本署希望貴理事會能作出澄清，在該次大會中是否曾通過上述決議。倘若大會確實如會議記錄所記載，通過進行改善天台及所有頂層單位之天花的滲水問題的工程，理事會理應切實執行該項議決。若貴理事會或其他社員對上述決議存有疑問，應趁工程尚未完成前，考慮召開社員特別大會，澄清當日大會的決定，並將其結果通知本署。”

20.  According to the evidence of the Defendants, although members of the Committee found the purported resolution recorded in paragraph 5 of the draft minutes doubtful and probably invalid, initially they did not find it an urgent matter requiring immediate clarification.  They adopted a “low-key” approach.  They felt there was no urgency.  After all, the draft minutes would need to be ratified in the AGM to be held in the following year.  They also received complaints from several members of the Society regarding the purported resolution.  For the reasons explained above, they felt that it was only necessary to take action regarding the repair of the roofs, to take advantage of the forthcoming dry season.  They therefore decided not to implement the purported resolution regarding the ceilings for the time being but to focus only on the roofs.  They also had the possible costs of the repair work in mind, bearing in mind that the Society only had ready cash of slightly more than $400,000.  According to the Defendants’ evidence, for fear that neighbourhood relationship would be affected, they did not find it wise to directly confront the former Chairman or the Plaintiff regarding the purported resolution, which in their view was quite unacceptable.

21.  According to the evidence of the 1^st Defendant, she once had a telephone conversation with Mr Wong the former Chairman, who appeared to have thought that the purported resolution had been duly passed in the AGM.  However, when he was asked by the 1^st Defendant how the resolution was passed (i.e. by what procedure) Mr Wong was unable to answer.  This also fortified the Executive Committee’s view that the resolution had not been properly passed.

22.  However, the Committee’s wish to maintain a low-key attitude towards the matter could not be achieved after the Plaintiff made her complaint first to the Executive Committee following the 6^th Notice, and later to the Registrar.  And when the Registrar by his letter required the Executive Committee to clarify whether the resolution had indeed been passed, they felt that they had no alternative but to bring the matter out to the open to all the members of the Society.  Instead of holding an extraordinary general meeting, the Executive Committee thought it convenient and expedient to issue another notice and questionnaire instead.  In those circumstances, the subject matter of the present libel action, namely the “10^th Notice” of the Executive Committee circulated to all members of the Society on 14 December 2001, came into being.

The libel

23.  The contents of the 10^th Notice should be reproduced in full:

“                2001-2002 年度執行委員會第十號通告

                       有關：維修頂層住戶之室內天花

致：全體社員

在本年度第六號通告中，會方要求各社員表態是否支持會方之選擇時，社員Omar女士投票反對，並提出一系列之要求及質詢，會方已立即回函一一作覆，由於只有該名社員反對，會方不擬拖延天台維修工程，並於十一月二十七日與順記工程公司簽約，在第六號通告之附件中，已清楚表明此項工程施工範圍只局限於天台地面，天台簷篷，天台圍欄及天台樓梯屋，並不包括六個頂層住戶之天花，社員Omar女士不服會方之決定，並將其投訴上呈至合作社註冊官定奪，該社員認為上屆全體社員大會已作出《可動用不多於四十萬元去改善天台地面及所有五樓天花之滲水問題》決議，並已列明在大會之會議記錄內，是以投訴會方未有切實執行。

本屆執委會絕對明瞭該項決議已確實記錄於社員大會會議記錄之草稿內，但基於以下之四項考慮，決定將<維修頂層天花工程>獨立於<維修天台工程>之外，全速進行後者以期在乾旱季節內完成整項工程。而前者則需要暫時擱置，以待下次社員大會澄清。

1.      程序有誤，議決無效– 在上次全體社員大會上，臨時提出議論之項目繁多，意見紛紜，大都是議而未決，極可能有人有意或無意地將某些個人意見作為大會之決議，紀錄在案。此等所謂決議，既無經過深入討論，亦無通過正式動議及表決程序，又未有照顧到沉默大多數之意向，實不能成為全體社員大會的議決。根據正式程序，要成為大會之議決必須要有一名社員動議，最少要另一名社員和議，在確定無任何社員反對下，方可通過。如有任何一位社員反對，則必須進行表決，第四十五屆全體社員大會會議記錄上之所謂決議完全無視此等程序，既無動議者，亦無和議者，更漠視可能持反對意見者，表決程序當然亦無觸及不難令人懷疑此等所謂議決之合法性及認受性。

2.      公帑私用，有違常理– 會方之資金為全體會員所共有，只應用作維修公共地方及公共設施之用，天台屬公共地方，以公帑維修天台，應絕無異議，但頂層之室內天花屬個別會員之私產，依據常理，斷無要用公帑去維修個別會員私人物業之理由，會方認為將兩者二合為一有濛混過關之嫌，負責起草該屆大會會議記錄者上屆義務秘書Omar女士及簽署該草案之主席均居於頂層，屬可能受益者。未有經正式程序通過而記錄有利本身之議決在案，容易令人產生合理之懷疑。再有甚者，本屆執委會之五名執委中有三名（包括主席，義務司庫及另一名委員）均居於頂層，亦屬可能得益者。如果本屆執委會盲目跟進，按章執行，必會令其他社員懷疑上下屆勾通佈局，以達至公帑私用之目的，為免瓜田李下之嫌，會方不能不謹慎從事。現時該大會會議記錄仍處於草稿階段，必須在下次社員大會上經動議，和議及無反對下才能通過，而會方亦了解到有社員準備於下次大會提出反對及修訂，為慎重計，本屆執委會認為應將該項富爭議性之項目暫時擱置，等待下屆社員大會澄清，以免將來情況逆轉時，難以收拾殘局。

3.      矛盾重重，難以執行– 記錄在該大會會議記錄內之其他議決，亦多矛盾及不合理處，第二頁4e決議可種植盆栽，同頁4f又決議要接任之執委會清除擺放在189（其本人居住之五樓樓上）天台之大盆栽，一項議決既然容許種植盆栽，另一項又要求下屆執委會單獨清除擺放於189天台之盆栽，試問會方應如何切實執行如此自相矛盾之所謂議決呢？

4.      理財不慎，易陷困局– 根據上屆之收支帳目及資產負債表，該年度本會之流動資金滾存只有四十二萬，大會記錄之草稿上竟然會有動用四十萬進行維修天台及頂層天花工程之議決，豈不是將會方財政推至極不健康之境地？若有突發性之需求，會方又何以應付呢？其他更重要之外牆，地基及水渠維修又是否可以長期置之不理呢？更有甚者，投訴人甚至建議向政府維修基金借貸作維修天台及頂層天花之用，更進一步將會方推向負債之深淵，若會方如其所願，日後必須大幅增收各社員月供之管理維修費，以作還債之用。

盲目跟進投訴人自訂之所謂議決，只能令個別社員有利，絕未能保障其他會員之利益，落實執行所謂決議本屬簡單易行，更毋須花費心思，筆墨與時間跟投訴人週旋，但作為負責任之執委會必須事事以全體會員之利益為依歸，不可有息事寧人，避重就輕，馬虎了事之心態，故本會寧捨易取難，以圖維護各社員之權益。

除了希望能夠混水摸魚，濛混過關之外，<維修頂層天花工程>絕對可以獨立於<維修天台工程>之外，暫時擱置前者並不表示以後一定不會執行此類工程。會方認為投訴人大可以在下次全體會員大會上正式提出討論，若能真正獲得足夠支持，工程自能得到順利推行。相反，會方若貿貿然進行室內天花維修工程，若日後形勢逆轉，到時覆水難收，下屆執委會將難以收拾殘局。

本月十四日會方收到合作社註冊官之來函宣稱接獲Omar女士之投訴，並要求會方澄清上屆社員大會是否曾通過上述之決議，並建議若執委會或其他社員對該議決存有疑問，應考慮召開社員特別大會澄清當日大會的決定。基於上文所述之論點，本會否定曾通過該決議，但亦同意必須要正式澄清當日之議決記錄。本會無足夠之地方進行全體會員大會，即使花費在酒樓內舉行，亦未必有足夠人數開會，可能令會議流產，以致勞民傷財。現今，距離下次全體社員大會召開時間只有四個月，維修天花工程又無特別之迫切性，會方認為無必要冒會議流產之風險，急急召開社員特別大會去澄清如此一個非緊急性之問題。

一個節衷而可靠的辦法就是進行問卷調查，自接任以來，本屆執委會一直秉持公平、公正、公開之態度辦事，不偏不倚，一切以大眾社員之利益為依歸。基於此本會不能接受以公帑支付個別社員私人物業之維修費用，亦由此作出擱置維修頂層天花之決定，一切憑各委員之認知出發，本會未能確知此一決定是否真正得到各社員之認同及支持，若最後發現只是會方一廂情願，未有足夠社員支持，本屆執委會將不再堅持，轉而去落實執行該項會方一直有所懷疑之議決。

現附上簡單問卷乙份（見附件），懇請各位社員小心填妥，於本月三十一日或之前投回本會之信箱，事關各社員之自身權益，望各社員謹慎考慮，清楚分析，切勿以事不關己，不聞不問的態度去處理這份問卷。此次事件足以顯示日漸明顯之社員個人權益與公眾利益衝突，閣下若對自身之權益亦漠不關心，自然容易為他人所乘，執委會亦將無能為力，難以持平。

                                                       鴻運樓建屋有限責任合作社

                                                            2001-2002年度執委會

                                                               2001年12月21日”

24.  Annexed to the Notice was a questionnaire.  Replies were eventually received from 20 members.  Their replies have been digested in a document subsequently prepared by the Executive Committee.  It is useful to reproduce the same here, which sets out also the contents of the questionnaire:

“      2001-2002 年度執行委員會第十號通告之問卷調查

                       有關：維修頂層住戶之室內天花

發出問卷：30份

收回問卷：20分　　回應率：67%

包括：有效票：19份及廢票：1份

調查結果：

問題一    閣下是否認為上屆社員大會會議記錄所記載之議決已經通過正式之表決程序？

已經通過:

2人

未有通過:

11人

不知道/不清楚:

6人

問題二    閣下是否覺得該等議決有矛盾，混淆，不公平或令人懷疑的地方？       

有:

13人

沒有:

1人

不知道/不清楚:

5人

問題三    閣下是否認為應該將<維修五樓天花工程>及<維修天台工程>二者混而為一？

應該:

0人

不應該:

17人

不知道/不清楚:

2人

問題四    閣下是否認為應該以公帑去維修五樓住戶之天花？

應該:

0人

不應該:

17人

不知道/不清楚:

2人

問題五    未能在下屆社員大會澄清有關之決議前，閣下是否支持會方採取暫時擱置<維修五樓天花工程>之謹慎態度？

支持:

18人

不支持:

1人

不知道/不清楚:

0人

問題六    閣下是否認為可以動用高至四十萬之公帑去支付天台及五樓天花維修工程？   

可以:

1人

不可以:

18人

不知道/不清楚:

0人

問題七    在此項工程花費太多意味將來在外牆及水管/水渠維修上可能出現資金不足，閣下是否接受日後大幅增加每月之管理維修費呢？

接受:

1人

不接受:

18人

不知道/不清楚:

0人

問題八    整體來說閣下是否支持會方在此一問題上所採取之態度及立場呢？

支持:

19人

不支持:

0人

不知道/不清楚:

0人

”

25.  The Plaintiff considered that the 10^th Notice was libellous.  According to the amended statement of claim filed in the present action, in their natural and ordinary and/or inferential meaning the words in the 10^th Notice meant and were understood to mean that (para. 4):

“(a)   During the office of the Plaintiff as the Duty Secretary of the Executive Committee of the Society, the passing of a resolution on 19th May, 2001 and recorded in the Minutes of meeting dated 25th May, 2001 (“passed resolution”) on the maintenance and repair of the top floor and the ceilings thereof was wrong;

(b)     By wrongly passing the said resolution, the Plaintiff had intended to utilise the funds of the Society to benefit those who reside at the top floors, and the Plaintiff and the Chairman at the time of the Executive Committee of the Society were occupants of top floor units;

(c)     The Plaintiff had made up the said resolution that had been passed for there were contradictions within the said resolution, which could not be followed;

(d)     As Duty Secretary of the Executive Committee of the Society, there had been mismanagement of the Society’s funds, and this was shown in the Society’s accounts and books;

(e)     The Plaintiff had failed to observe the interest of all Society members, by suggesting that the financial burden of Society members be increased to satisfy the need of the Plaintiff through the borrowing of a loan.

(f)      The unilateral setting aside of the passed resolution by the Executive Committee of the Society at the time comprising of the First and Second Defendants was fair, just and with no bias; for clearly the Plaintiff’s conduct during her term of office was wrong and needed be investigated;

(g)     The complaint by the Plaintiff to the Registrar of Co-operative Societies was futile for the passed resolution was clearly wrong and clarification by members in a meeting was unnecessary.

(h)     The conduct of the Plaintiff during her term of office in the Executive Committee of the Society was wrong, and that each Society member should not support her and/or the passed resolution; and

(i)      Maintenance and repair works directed at the top floor ceilings were definitely wrong and Society members should not be fooled by the Plaintiff by her self-set resolution.”

26.  The matter and dispute between the parties continued to escalate, and at one stage, the Executive Committee brought the matter to the attention of the ICAC, and eventually writ was issued on 30 September 2002.

Libel action

27.  In the libel action, the two Defendants are sued as members of the 46^th Executive Committee which issued the 10^th Notice.  According to the Plaintiff, the Chairman of the Executive Committee (a Mr Tsui), an elderly gentleman, was not really aware of what was happening, and she did not want to sue him.  As regards the other two members of the Committee, they had offered apologies to her, and she was prepared not to proceed further against them.

28.  In this case, there is no denial by the Defendants of their publication of the 10^th Notice.  On the other hand, the Plaintiff has through counsel confirmed with the Court that the Plaintiff is not complaining about publication of the allegedly defamatory words to anyone other than the Society members, even though the 10^th Notice was for a period of time posted on the notice boards in the lobbies of the buildings comprising Good Luck Mansion, and was copied to at least the Registrar in the subsequent correspondence.  Counsel confirmed with the Court that the Plaintiff is not complaining about publication of the defamatory words to any outsiders, as it were.

29.  According to the pleadings, the Defendants deny the alleged defamatory meaning pleaded by the Plaintiff against them.  Alternatively, they rely on the defences of justification, fair comment and qualified privilege.

Concession and pleading objection

30.  It is important to note here that at the trial, Mr Chiu, counsel for the Plaintiff, accepted and conceded in no uncertain terms, both during his opening and during final submissions, that despite the denial in the pleadings, the 10^th Notice was published on an occasion of qualified privilege – subject to his case on malice.  He accepted, rightly so in my view, that there was an interest and indeed a duty on the part of the Executive Committee to communicate to the members of the Society the matters contained in the 10^th Notice, and there was a corresponding interest on the part of the Society members to receive the 10^th Notice and be made aware of the contents thereof.  I have no doubt that this concession has been rightly made.  It seems to me that the subject matter of the 10^th Notice fell squarely within the province of management of Good Luck Mansion, and there was a corresponding duty and interest to communicate and receive the relevant information on the subject matter in question.

31.  At this juncture, I should also point out this – in the pleadings, the Plaintiff has pleaded malice, but that has been done in relation to fair comment only.  Thus in paragraph 12 of the amended reply, the Plaintiff through counsel has pleaded as follows:

“12.   Further or in the alternative, the Plaintiff denies that the words set out in the said defamatory Notice bore any meaning of or suggesting fair comment, as the publication of the same was actuated by malice.

                                      PARTICULARS

a)      The Defendants did attend the 45th Annual General Meeting held on 19th May 2001 and effect the passing of resolutions thereat;

b)      The format of the Minutes of Meeting of 25th May 2001 follows that of the Minutes of the 44th Annual General Meeting, by which the names of those present at the said meeting were not listed;

c)      The Defendants did nothing to enquire about the resolution passed and recorded on 19th May 2001, which was also transcribed into a Minutes of Meeting dated 25th May 2001, when they became the Duty Secretary and Duty Treasurer for the year 2001/2002 and prior to the Plaintiff’s letter dated 12th November 2001 to the Executive Committee of the Society;

d)      The First named Defendant went to inspect the Plaintiff’s flat in or about July 2001 and commented on the dangerous condition of the ceilings to the flat;

e)      The false allegations of the Defendants started by alleging that the resolution was wrongly passed, and supplemented this allegation with serious allegations of malpractice during the Plaintiff’s term of office as the Duty Secretary of the Society, some of which involved criminal activities;

f)       In all the premises, no reasonable person would hold an honest belief as to what has been published in the said Notice; it follows that there is a lack of honest belief on the parts of the Defendants when they published or caused to be published the said defamatory Notice.”

32.  What is of great importance is that malice has not been pleaded against the Defendants in relation to their defence based on qualified privilege.  Mr Chiu rightly accepted in final submission that the allegation in the statement of claim that the Defendants “maliciously published” the offending words was not a sufficient pleading for express malice in the present context.  Particulars of malice must be expressly and specifically pleaded: Order 82, rule 3(3), Rules of the High Court (Cap. 4).

33.  Miss Fung, appearing for the Defendants, took the pleading point that the Plaintiff cannot rely on malice pleaded in paragraph 12 for the purpose of replying to the defence of fair comment, as malice in reply to the defence of qualified privilege, particularly bearing in mind that according to the latest development of the law, malice has different meanings under the two different defences: See Gatley on Libel and Slander (10^th ed.) para. 12.24; Cheng v. Tse Wai Chun (2000) 3 HKCFAR 339.

34.  Pausing here, it should be immediately pointed out that if this pleading objection is upheld, this must be the end of the Plaintiff’s libel action, given the Plaintiff’s concession through counsel (which has been, as I have explained, rightly made) that the (allegedly) offending defamatory words were published on an occasion of qualified privilege, which is a complete defence to a claim based on libel, unless the Plaintiff is able to prove that the words were published with “malice” (in the qualified privilege sense).  As malice in that sense has not been pleaded, and given the Plaintiff’s concession, her claim must fail if the pleading objection is upheld.

35.  Taking a step back, even if the Court should reject the pleading objection and allow the Plaintiff to run a case of malice in response to the defence of qualified privilege, Mr Chiu, appearing for the Plaintiff, rightly accepted that his case of malice (in respect of qualified privilege) cannot go outside the four corners of what has been pleaded in paragraph 12 of the amended reply (which pleads malice in relation to fair comment).  In this regard, Mr Chiu relied on paragraph 12(f) to argue that if his client can establish that the Defendants did not hold an honest belief regarding what they said in the 10^th Notice, then not only would that constitute malice in relation to fair comment, that would also constitute malice in relation to qualified privilege.  Mr Chiu relied on the leading case of Horrocks v. Lowe [1975] AC 135 in support of his argument that a lack of honest belief in the truthfulness of what has been published is generally conclusive evidence of express malice: See pp. 149H to 150A (per Lord Diplock).

36.  In other words, given the concession, and assuming that the Plaintiff is allowed to rely on what has been pleaded in paragraph 12 in support of a case of malice in response to the defence of qualified privilege, the Plaintiff’s claim on libel turns on a very narrow point in the sense that if what has been pleaded in paragraph 12 is not established or is not sufficient to establish a case of malice (in the qualified privilege sense), the Plaintiff’s case must fail.

37.  Given the above peculiar situation of the Plaintiff’s case, and given the conclusions that I have reached in relation to the problems and hurdles facing the Plaintiff, I will be very brief with some of the issues involved in the present case.

Findings of fact

38.  So far as facts and evidence are concerned, having had the opportunity of hearing evidence from the Plaintiff as well as the two Defendants (and a relatively minor witness called by the Plaintiff regarding an inspection of the Plaintiff’s premises by the 1^st Defendant in July 2001), I am of the view that all three antagonists were basically truthful and honest witnesses, who however were giving evidence from their respective points of view.  So far as the Plaintiff is concerned, I have no doubt that she genuinely thought that the resolution in question had been duly and properly passed.  She gave evidence on her knowledge, understanding and belief that the formal voting procedure laid down in the relevant legislation had rarely been followed in the meetings of the Society.  She gave evidence on how normally resolutions were passed or were regarded as having been passed.  She gave evidence on how this particular resolution in question was “passed” in the 45^th AGM.  I believe her evidence in so far as it relates to her own subjective belief and perception.  However, that does not mean that I find that other members of the Society had the same understanding or perception.  I will come to the evidence of the two Defendants in due course.

39.  However, as I said, I have no difficulty in accepting that subjectively, the Plaintiff genuinely believed that the resolution in question had been passed.  Nor, in my finding, was the Plaintiff the only person who had such a subjective understanding regarding procedure in general and the passing of the resolution in question in particular.  On the evidence, it would appear that the Chairman, Mr Wong, shared the same understanding and view, at least initially.  After all, he and the Plaintiff signed the draft minutes which recorded the passing of the resolution.  Moreover, according to the replies to the questionnaire, at least two members thought that the resolution had been duly passed in the AGM.  In the circumstances, I find that the Plaintiff did not make up the resolution, and when she recorded the resolution in the draft minutes prepared by her, she was simply setting out something that she genuinely thought had happened.  No dishonesty whatsoever was involved.

40.  Furthermore, in relation to the content of the resolution, i.e. repairing the roofs as well as the ceilings, I find on the evidence that the Plaintiff genuinely thought and believed that the ceilings of the top floor premises were in need of repair by reason of water seepage caused by a want of repair to the roofs and the external wall of the buildings comprising Good Luck Mansion.  There was no question, so I find in terms of the subjective belief and understanding of the Plaintiff, of the Plaintiff seeking to use money belonging to the Society as a whole to “benefit” herself or her premises, or for that matter, the occupants of the other top floor premises.

41.  Whether objectively speaking, the ceilings had been damaged by water seepage resulting from a lack of repair to the roofs and the external wall is quite another matter.  There is insufficient evidence before the Court to enable me to come to any finding.  However, that is, in my judgment, quite unimportant for the purpose of the present litigation.   What is really in issue is the Plaintiff’s intention and motive.  And in that regard, I have no doubt, on the evidence before me, that the Plaintiff’s intention and motive in relation to the resolution and the recording of the resolution in the draft minutes were wholly innocent and honest.  There is no question of her knowingly or intentionally taking any undue advantage of her fellow members of the Society in the matter.  I can understand her grievances in the present case.

42.  As regards the two Defendants, I am likewise of the view, having listened carefully to their evidence in the box, that by and large they were truthful and honest witnesses, although they could have been more forthcoming in their evidence regarding what their real thoughts and views on the validity of the resolution and the motive behind the Plaintiff’s action were.

43.  In my judgment, on the evidence before me, the Defendants subjectively and genuinely believed that the resolution was invalid and had not been passed.  The 1^st Defendant was present in the meeting throughout and she saw no voting on the so-called resolution (as has been admitted by the Plaintiff).  The Defendants did not regard that a resolution, particularly a resolution as important (and unreasonable – as per their views) as the purported resolution in question, could be passed without following strictly the legal procedure.  They also found, so I find, the resolution to be most unreasonable in so far as it related to expending “public” money on renovating the ceilings of individual premises of some of the members of the Society.  I can fully understand their thinking and reasoning.  As a matter of fact and as a matter of record (as per the draft minutes), there were no in-depth discussions on the so-called resolution and its implications.  Yet, the resolution sought to authorize the expenditure of practically the entire reserve fund of the Society on repairing the roofs and the ceilings.  They perceived, and I accept their evidence, a potential conflict of interest in the matter given that three of the former Executive Committee members and two of the current Executive Committee members were occupants of premises on the top floors which would (in a sense) “benefit” from the implementation of the so-called resolution.  The 2^nd Defendant explained in the box his fear of being accused of misappropriation of public money, particularly given that he was a civil servant.  Furthermore, the Committee had received complaints from several members regarding the resolution.

44.  On the evidence, I accept that the two Defendants were very concerned and alarmed by the purported resolution, in terms of both procedure and substance.

45.  I also accept their evidence that initially they thought that there was no urgency relating to this aspect of the resolution and they wanted to adopt a low-key approach to the matter.  Initially, confrontation with the Plaintiff was not in their mind.  I also accept their evidence that they were in some sense “forced” by the development of events to bring the matter into the open and place it before the entire membership of the Society, after the issue of the 6^th Notice and the complaints made by the Plaintiff.  When the Registrar wrote to the Executive Committee requiring the Committee to clarify whether the resolution had been passed, they genuinely felt that they had no choice but to issue the 10^th Notice and questionnaire so as to obtain the necessary clarification and report the matter to the Registrar.

46.  As to why they did not see fit to contact the Plaintiff directly for clarification, I find that they did not do so because they were in fact quite certain that the resolution had not been passed, and therefore felt that it was quite unnecessary and useless to ask the Plaintiff about it, particularly when even the former Chairman (Mr Wong) could not tell the 1^st Defendant over telephone how the resolution was passed.

47.  On the evidence, I also find that the 10^th Notice was issued by the Executive Committee (including the two Defendants) with the dominant purpose of seeking formal clarification on whether the resolution had been passed and seeking support from the members for the Executive Committee’s view that the resolution had not been passed and the repair to the ceilings should not be done.  In fact, the 2^nd Defendant accepted in evidence that one of the reasons for writing such a long letter or notice to the members was to lobby their support for the Executive Committee’s view that no such repair should be carried out.

48.  On the evidence, I do not accept that the main purpose of writing the 10^th Notice was to defame, harm or injure the Plaintiff or her reputation.  That might be the result, but that was not the purpose or main purpose of writing the notice.

49.  I have already mentioned that in their evidence the two Defendants could have been more straightforward on what they really thought regarding the validity of the resolution and the motive or intention of the Plaintiff.  On the evidence, it is quite clear to me that when they wrote the 10^th Notice, the two Defendants did not believe that the resolution had been properly passed.  In other words, they thought that the resolution was an invalid one.  Moreover, the two Defendants did harbour grave suspicious regarding the motive behind the Plaintiff’s insistence on the Executive Committee’s full implementation of the so-called resolution, despite all the doubts and question marks that had been raised against it.  They, in my finding, genuinely believed that the Plaintiff was in fact seeking to gain some undue advantage for herself by insisting on the full and immediate implementation of the so-called resolution.

50.  However, I have carefully considered whether, and in what way, their refusal or failure to frankly admit in the box what was in their minds at the time affected their credibility regarding the rest of their evidence.  I have come to the firm conclusion that it did not.  In a hostile and very personal litigation such as the present one, it is understandable that the two Defendants were particularly guarded in what they said in the box.  Having carefully considered their demeanour and the content of their evidence in its entirety, I have come to the conclusion, as I said, that by and large they were truthful and honest witnesses.  In particular, regarding the true purpose behind writing the 10^th Notice and the wording used, I have reached my finding above on the entirety of the evidence, which was not restricted to what the two Defendants said in the box, but included also the documentary evidence, the objective facts and circumstances, and the inherent probabilities and improbabilities of all relevant matters.

Defamatory words

51.  Turning to the 10^th Notice itself, I am of the view that it bears defamatory meanings against the Plaintiff, namely that the Plaintiff made up the resolution herself in the draft minutes, which had never been properly passed in the AGM; and that she knowingly and deliberately sought to benefit herself by insisting on the implementation of the invalid resolution to repair the ceiling of her own premises with money belonging to the Society.

52.  I find that these meanings are defamatory.

Qualified privilege

53.  I now move on to deal with the all-important question of qualified privilege.

54.  The rationale of the defence of qualified privilege has been succinctly explained by Lord Nicholls in the local leading case on fair comment, Cheng v Tse Wai Chun, supra.  At pp. 355I to 356B, his Lordship explained the matter as follows:

“The rationale of the defence of qualified privilege is the law’s recognition that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: see Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 at p.1017.  Traditionally, these occasions have been described in terms of persons having a duty to perform or an interest to protect in providing the information.  If, adopting the traditional formulation for convenience, a person’s dominant motive is not to perform this duty or protect this interest, he is outside the ambit of the defence.  For instance, if a former employer includes defamatory statements in an employment reference with the dominant purpose of injuring the former employee, the former employer is misusing the privileged occasion and this will vitiate his defence of qualified privilege.”

55.  Tse Wai Chun was a case on fair comment.  The discussion on qualified privilege and the meaning of malice under qualified privilege was really for the purpose of contrasting the same with the meaning of malice in fair comment.  As has been acknowledged by Lord Nicholls in Tse Wai Chun, the leading case on qualified privilege and malice under the defence of qualified privilege is the House of Lords’ decision in Horrocks v Lowe, supra.  A very helpful summary of the legal principles expounded by Lord Diplock in that leading case of the House of Lords can be found in para. 16.3 of Gatley, which is extracted below:

“16.3     The law reviewed in Horrocks v Lowe.  The speech of Lord Diplock in Horrocks v Lowe, with which three other of the Law Lords agreed, restated the law in the context of qualified privilege in what were clearly intended to be authoritative terms.  The following is offered as a summary:

(1)         Improper motives

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

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

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

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

(2)       Absence of honest belief

(a)         If it can be proved that the defendant did not believe that what he published was true, that is generally conclusive evidence of express malice, “for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another”.  The burden of proof, at least where conduct extraneous to the privileged occasion is not relied on, is not a light one.

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

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

(3)       Positive belief

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

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

56.  A convenient summary of the law may also be found in the recent case of Lo Ki Chung v Hong Kong Nam Hoi (Sha Tau District) Association Ltd., HCA 39/2003, Poon DJ (22/7/2004), paras. 64-70.

Pleading objection upheld

57.  Turning to the facts of the present case, I have already pointed out the serious pleading objection to the Plaintiff’s running a case of malice in relation to the Defendant’s defence of qualified privilege.  Malice has been pleaded in relation to fair comment, but not qualified privilege.  Tse Wai Chun has pointed out that the same word bears different meanings under the two defences.  Lord Nicholls actually advised against the continued use of the word “malice” in relation to either defence, which might give rise to confusion.  His Lordship said:

“It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries.  I agree that if the term “malice” were used, there might be a risk of confusion.  The answer lies in shunning that word altogether.  Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the Defendant did not genuinely believe the opinion he expressed.  Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the Defendant used the occasion for some purpose other than that for which the occasion was privileged.  The direction can be elaborated in a manner appropriate to the facts and issues in the case.” (at p.361B-D)

58.  Mr Chiu, in a desperate attempt to salvage his client’s case, argued that since the lack of an honest belief has been expressly pleaded in paragraph 12(f) of the amended reply (in relation to fair comment), and since the lack of an honest belief would also constitute conclusive evidence of express malice in relation to qualified privilege, the Defendants would not be prejudiced if the Plaintiff were to be allowed to run a case of malice against them in relation to their defence of qualified privilege.  After all, the Defendants came to Court with the full knowledge that a case of lack of honest belief would be run against them.

59.  That is an attractive argument.  But I am not prepared to accept it.  The two defences are quite clearly different.  And the meanings of malice in relation to the two defences are also substantially different, despite some overlapping.  It would be quite unfair to the Defendants to allow the Plaintiff to use what she has pleaded in relation to malice under unfair comment to establish a case of malice under qualified privilege.  Whilst the lack of an honest belief might be an overlapping element in the two different meanings of malice under the two different defences, that does not necessarily mean that if the Defendants had known that malice would be alleged against them at trial in relation to their defence of qualified privilege, the conduct of their case, including their handling of the trial, must have been the same, or there was nothing they could have done to rebut the allegation of express malice.  In this regard, it must be borne in mind that proof of the lack of an honest belief is not necessarily conclusive of express malice, because there can be exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue, in which case he is not malicious: Horrocks v Lowe at p.150A.  On the facts of this case, I cannot rule out the possibility that this exception could apply, particularly when there might be further evidence that had not been adduced before this Court by the Defendants which they would have adduced before me had they known beforehand that a case of express malice based on the lack of an honest belief would be run against them in relation to their defence of qualified privilege.  What I have said and found regarding the Defendants thus far were based only on the evidence that has actually been placed before the Court.

60.  This is fatal to the Plaintiff’s action.

Pleaded case of malice

61.  In any event, given my findings, even if I were to allow the Plaintiff to run a case of express malice based on the lack of an honest belief in relation to the defence of qualified privilege, the Plaintiff’s case on express malice must fail.  As I said, Mr Chiu, appearing for the Plaintiff, accepted that in such a situation he was bound by those matters pleaded in paragraph 12 of the amended reply in relation to his case of express malice regarding qualified privilege.  I do not see how those matters could help the Plaintiff establish a case of express malice.

62.  What the Plaintiff seeks to argue under paragraph 12 is that by reason of the matters pleaded as particulars under that paragraph, the Defendants must have known that what they said in the notice was untrue, and they did not therefore honestly believe in what they said.

63.  Paragraph 12(a) relates to the Defendants attending the 45^th AGM.  The Plaintiff pleads that the Defendants effected the passing of the resolution at the meeting.  I find on the evidence against that allegation.  There can be no doubt that the 2^nd Defendant left the meeting before the matter was discussed.  As for the 1^st Defendant, I accept her evidence that she did not take part in the “passing” of the resolution.  In fact, even the Plaintiff accepted at trial that there was no voting and I fail to see how the 1^st Defendant could be said to have “effected” the passing of the resolution.  What is important in the present context of the Defendants’ honest belief is whether the 1^st Defendant thought subjectively that the resolution had been passed.  As I have found above, she did not.  There is thus no question of her “effecting”, or effecting knowingly, the passing of the resolution – from her angle, no resolution had been passed.  Paragraph 12(a) therefore does not help to fix the two Defendants with any subjective knowledge or belief that such a resolution had been passed.

64.  Paragraph 12(b) refers to the “formats” of the minutes of the 45^th AGM and the minutes of the 44^th AGM.  Mr Chiu agreed during final submission that this is a non-point in that one is not so much concerned with whether the minutes recorded who proposed the resolution and who seconded it and how it was passed; the question is whether the Defendants thought that the resolution had been duly passed.  The fact that the purported resolution was recorded in the minutes in the same way or “format” as that adopted in previous years would not confer any validity on the same that it did not of its own right have.  I have already found as a fact on the evidence that both Defendants subjectively believed that the resolution in question could only be lawfully passed with strict adherence to the voting procedure under the rules, and that it was not so passed.  How the purported resolution was recorded in the minutes, and whether the format adopted differed from that used in the previous years, are simply quite irrelevant matters in the present context (of the Defendants’ honest belief).

65.  Paragraph 12(c) refers to the Defendants not doing anything to inquire about the resolution in question until after the Plaintiff’s letter dated 12 November 2001.  I have dealt with that earlier on in this judgment.  I will not repeat myself here.  Mr Chiu accepted in final submission that all that the Plaintiff is really saying here is that the two Defendants did not directly contact the Plaintiff for clarification.  I have already dealt with this aspect of the case in the judgment above.  I have already described the reasons why the Defendants did not contact the Plaintiff directly.  With the benefit of hindsight, that might well have been a wise step to take.  But one is not concerned with whether the Defendants had acted wisely or not.  In issue is whether they had an honest belief on what they wrote in the 10^th Notice.  I fail to see how their failure to contact the Plaintiff directly at the time would establish or be sufficient to establish, whether by itself or in combination with the other matters pleaded in paragraph 12, the allegation that they did not honestly believe in the truthfulness of what they wrote in the 10^th Notice.

66.  Paragraph 12(d) refers to the inspection of the Plaintiff’s premises by the 1^st Defendant in July.  The 1^st Defendant gave evidence that the inspection was for the purpose of the tendering process.  In particular, some of the contractors suggested using heavy machineries on the roofs to carry out the repair work.  It was therefore necessary to find out the state and condition of the ceilings.  That through the inspection the 1^st Defendant knew or should have known about the condition of the ceiling of the Plaintiff’s premises is, in my judgment, neither here nor there, in relation to whether the Defendants honestly believed in the truthfulness of what they wrote in the 10^th Notice.  The fact that the ceiling might be in need of repair would not mean that the resolution was validly passed or that it must be the responsibility of the Society as a whole to carry out repair to the ceiling.

67.  Paragraph 12(e) essentially relies on the contents of the 10^th Notice and the allegations made against the Plaintiff in the notice in order to build a case of lack of honest belief.  I accept that it is quite possible, depending on the facts and evidence, to infer from the contents of the defamatory article itself that the author did not believe that what he wrote was true.  However, on the facts and evidence of this case as I find them, although I am of the view that the Defendants’ criticisms of the Plaintiff in the article may not have been fully justified, and may have been unfair, I am firmly of the view that there was no lack of an honest belief on the correctness of these criticisms.  In fact, quite to the contrary, I find that both Defendants genuinely believed that what they wrote were true and right.  They might be wrong, unfair or bias – objectively speaking – in their views, but in my judgment, they believed in what they alleged.

68.  Mr Chiu urged me in final submission to read all the particulars in paragraph 12 as a whole.  I have done so.  I fail to see how reading the particulars as a whole would assist the Plaintiff in establishing a case of lack of honest belief.

69.  In those circumstances, even if I were to allow the case of express malice in relation to qualified privilege to be run, on the pleaded particulars of express malice, the Plaintiff’s case must fail.

In any event …

70.  For the reasons given above, in considering express malice, I have not considered any other matters that have not been pleaded under paragraph 12 in support of the case of malice.  But simply for the sake of completeness, I would indicate that even if I were to take everything (i.e. everything in evidence) into account, including the subsequent correspondence between the parties and the development of the case (including the report to the ICAC), I still have no doubt that the Defendants held an honest belief in the truthfulness of what they wrote in the 10^th Notice, and they have not misused the occasion for any purpose other than that for which the occasion was privileged.  As I found above, the whole purpose of writing the 10^th Notice was twofold, namely to clarify whether the resolution had been passed, and to gather support from members of the Society for the views of the Executive Committee taken in relation to the validity of the resolution and the content of the resolution itself.  Those purposes were, in my judgment, fairly and squarely within the purposes for which the occasion was privileged.  They related directly to the management of the building, the responsibility of which rested with the Executive Committee.

Outcome

71.  For all the above reasons, the Plaintiff’s claim must fail.  For that reason, I need not deal with the other issues and defences raised in the present action.

72.  This is a most unfortunate piece of litigation between neighbours.  I certainly hope that by this judgment, an end could be put to this whole matter.  In particular, I certainly hope that what has been said in the judgment will provide some vindication to the Plaintiff whose grievances, as I said, I can understand.  However, I also hope that she can understand why, based on the law that I have sought to apply to the facts of the present case, her claim must fail.

73.  I order that the action be dismissed.  I make an order nisi that the Plaintiff pay to the Defendants the costs of the action; such costs are to be taxed if not agreed.  Unless either party should apply to vary the costs order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the lapse of the 14 days period.

Mr Charles Chiu instructed by Messrs Kong & Tang for the Plaintiff

Ms Carol Fung instructed by Messrs S C Chan & Co, for the 1^st and 2^nd Defendants