LIU KWOK FAI ALVAN AND ANOTHER v. WOLF RENE KARL AND ANOTHER

DCCJ3204/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3204 OF 2013

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JUDGMENT

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1. The Plaintiffs apply for leave to appeal against the judgment I gave on 16 March 2015 (“the Judgment”) and to vary the costs order nisi made in the same judgment.

LEAVE TO APPEAL

2. The Plaintiffs put forward 12 grounds of appeal. I shall deal with them in turn.

The law

3. Section 63A (2) of the District Court Ordinance states:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4. In Ho Yuen Ki Winnie v Ho Hung Sun Stanley, unrep, HCMP 1009/2009; 24 August 2009, the Court of Appeal considered an application for leave to appeal under section 14AA(4) of the High Court Ordinance (Cap 4), which contains the same wording as that of section 63A(2) of the District Court Ordinance, Le Pichon JA stated at paragraph 16 that:-

“For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.”

5. In KNM v HTF, unrep, HCMP 288/2011 (Court of Appeal; 7 September 2011) per Hartmann and Fok JJA (as they then were) at paragraph 9, it has been confirmed that:-

“The relevant test of whether an appeal has a reasonable prospect of success under s 63A, is whether the applicant for leave can shown that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’.

6. Even if the court takes the view that there is a reasonable prospect of success, it still retains discretion as to whether to grant leave: see Hong Kong Civil Procedure, paragraph 59/2A/4.

7. In considering an appeal on findings of fact, the Court of Final Appeal in the case of Ting Kwok Keung v Tam Dick Yuen & others (2002) 5 HKCFAR 336 has reiterated the following passage from the case of Piglowska v Piglowska [1999] 1 WLR 136 at p 1372D-F:-

“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

Ground 1(a): Failing to consider all relevant and material facts and evidence before finding the Defendants have a legal and moral duty to raise the issue of vandalism.

8. The Plaintiffs have not specified what “relevant and material facts and evidence” I had failed to consider in arriving at my finding at paragraph 76 of the Judgment.

9. I have dealt with all the factual matters raised in the proceedings as relevant to the issues and have set out my reasoning in paragraphs 64 to 76 of the Judgment as to why I found the Defendants have a legal and moral duty to raise the issue of vandalism.  

10. In all the circumstances, I do not find there to be any reasonable prospect of success on this ground.

Ground 1(b): Failure to make a finding that the other owners of the Chalet had a reciprocal duty or interest to receive the words completed.

Ground 2: Failure to consider the facts as listed in the Notice of Appeal.  If the matters were considered, the judge would have concluded there was no such reciprocal duty or interest to receive the Subject Paragraph. 

11. Since these 2 grounds relate to the same issue, I shall consider them together.

12. In respect of Ground 2(d) and Ground 1(b), I noted the Joint Circulation Letter invited all other owners to express comments to the matters raised therein: see paragraphs 68 and 69 of the Judgment.  I explicitly set out in paragraph 69 of the Judgment that although the issue of vandalism was not raised in the Joint Circulation Letter, the Defendants could raise the same.  This is because, as conceded by the 1^st Plaintiff in his evidence in court, the mode of management of the Chalet is by way of correspondence and/or memos.  Hence I was of the view that the Defendants, as co-owners and co-managers of the Chalet, were entitled raise issues relating to the management of the Chalet by way of letter, memos, or otherwise.

13. Although I have not expressly stated I found a reciprocal duty or interest to receive the information, it must necessarily follow from the findings set out in the Judgment that I was of the view the other owners had a reciprocal duty or interest to receive the complaint on vandalism.  It would make no sense that a co-owner and co-manager is found to have the duty to raise issues relating to the Chalet without the other co-owners and co-managers having a reciprocal duty or interest to receive the same.  The fact that the management of the Chalet is conducted by way of letters and/or memos dictates that any issue of management being raised in such manner must be reciprocated by a duty to receive the same.

14. In respect of the complaint that I failed to consider the facts listed out under paragraph 2 of the Notice of Appeal, I have already dealt with Grounds 2(a) – (c) in paragraphs 67 to 76 of the Judgment.

15. Having considered the above matters, I fail to see any reasonable prospects of success on these grounds of appeal.

Ground 3: Failure to consider the facts listed in paragraph 3 of the Notice of Appeal before arriving at the conclusion there was no malice or improper motive.

16. I had acknowledged the submissions made by Counsel for the Plaintiffs in relation to the issue of malice at paragraph 77 of the Judgment.  At paragraph 54 – 56 of the closing submissions, the Plaintiffs’ Counsel had already mentioned the facts as now listed under paragraph 3 of the Notice of Appeal.  This ground of appeal is a repetition of the submissions made by the Plaintiffs’ Counsel at trial which I have already dealt with.

17. I fail to see any reasonable prospects of success on this ground.

Ground 4: Failure to give proper consideration to the findings at paragraph 48 and 54 of the Judgment when considering whether there was malice or improper motive.

18. Paragraphs 48 and 54 of the Judgment deals with the issue of whether the Subject Paragraph is defamatory.  

19. I have set out the relevant test on malice in the Judgment and I specifically cited the relevant paragraph in Gatley on Libel and Slander which sets out the test where mixed motives were involved.  

20. When I considered the issue of malice I had in mind the possibility of mixed motives.  I was aware the Defendants were unhappy with the joint demand for information on their construction works and I had in mind the Defendants believed they had suffered attacks by the other owners.  Hence I considered the test where mixed motives might be involved.

21. Furthermore, the same matters have been raised in the Plaintiffs’ Counsel’s closing submissions which I have considered.  Nevertheless after due consideration of the aforesaid matters, I did not accept the sole or dominate intention of the Letter (including the Subject Paragraph) to be malicious.

22. The Plaintiffs have not made out any reasonable prospects of success on this ground.

Ground 5: Failure to consider the facts listed in paragraph 5 of the Notice of Appeal when considering dominate motive.

23. The facts listed in paragraph 5 of the Notice of Appeal had been stated in the Plaintiffs’ Counsel’s closing submissions of which I had duly considered.

24. It is impossible for this court not to have considered the long term animosity between the parties when considering the issues of this case.  I had already mentioned and acknowledge the extent of the animosity between the parties in paragraphs 8 and 9 of the Judgment.

25. After considering the evidence and the submissions of Plaintiffs’ Counsel, I did not find the dominant motive of the Letter and the remarks made in the Subject Paragraph to be an improper one.

26. I find no reasonable prospect of success in this ground of appeal.

Ground 6: Failure to consider the totality of the documents listed in paragraph 6 of the Notice of Appeal in considering whether the Letter was issued as a response to the Joint Circulation Letter.

27. I have considered these documents as evident in paragraph 50 of the Judgment. I have all along been aware that the other owners have not raised the issue of “security” (using the words of Counsel) or the issue relating to vandalism in the documents set out in paragraph 6 of the Notice of Appeal. However I have already addressed this matter in paragraphs 69 and 80 of my Judgment.  I have given reasons why, despite there is no mention of vandalism or damage to cars in the Joint Circulation Letter, I nevertheless found the Defendants were entitled to raise such matters in the Letter.

28. I do not find the Plaintiffs to have shown any reasonable prospect of success on this ground.

Ground 7: Err in finding the issue of vandalism was something the Defendants had a legal and moral duty to raise. 

29. There are 2 main complaints lodged under this ground of appeal:-

(1)   That I have failed to properly consider the Plaintiffs’ evidence there had not been any previous acts of vandalism; and

(2)   That the letters dated 26 March 2013 and 8 April 2013 cannot support the Defendants’ concern regarding damage to cars in the Chalet.

30. Counsel for the Plaintiffs argues that the 2 said letters are dated after the Letter and therefore could not be used to support the Defendants’ contention of vandalism occurring in the Chalet. I did not accept those submissions.

31. I have set out my reasoning on these matters at paragraphs 70 – 75 of the Judgment.  As set out in the Judgment, the 1^st Plaintiff does not dispute the photos sent with the Letter show damage to the Defendants’ red car and that such damage looked as if it was caused deliberately. The Plaintiffs’ produced the letters dated 26 March 2013 and 8 April2013 which I found to mean the Plaintiffs’ similarly experienced deliberate damage to their cars whilst parked in the Chalet.  

32. It should be noted the Plaintiffs have not specified the dates on which their cars were damaged in the letter dated 26 March 2013. It is clear the damage occurred before 26 March 2013. The Plaintiffs’ letter does not support Counsel’s submissions in this regard.

33. In view of the wording and assertions made in the said 2 letters, the 2 said letters support the Defendants’ concern about deliberate damage being caused to the cars parked in the Chalet. I find there is no reasonable prospect of success on this ground.

Ground 8 and 9(a): Failing to adopt the proper test when determining the issue of dominate motive.

34. The complaint on these grounds of appeal is that I have only found the dominate motive of the Letter but not of publishing the Subject Paragraph.

35. The section on malice set out in paragraphs 77 – 82 of the Judgment must be read together.  At paragraph 77 of the Judgment I have clearly stated I failed to see how the remarks made in the Subject Paragraph were made maliciously.  Previously at paragraph 76 of the Judgment, I had explained I found the issue of vandalism as raised in the Subject Paragraph to be an issue the Defendants’ as co-owners and co-managers of the Chalet have a legal and moral duty to raise.   The publication of the Letter necessarily includes the publication of the Subject Paragraph.

36. Furthermore, the Plaintiffs’ case is set out in Counsel’s closing submission at paragraph 54 which states: “What has emerged from the evidence is loud and clear.  The Defendants used the publication of the Letter to tell the other owners that the Plaintiff had repeatedly vandalized their property and cars, and had repeatedly attacked them, their house and cars.  The dominate motive behind issuing the Letter to the other owners was to vent their spite or ill-will towards the Plaintiffs, built up throughout the years since the Defendants’ first moved in a decade or so ago.  They wanted to tarnish the Plaintiffs’ reputation in the minds of the other owners.”

37. If the Plaintiffs now seek to make a distinction between the motive for publishing the Letter and the motive for publishing the Subject Paragraph, such distinction would be contrary to their case put forward throughout the trial as set out in the closing submissions.

38. Having considered these grounds, I find there to be no reasonable prospects of success.

Ground 9(b): No evidence to support the dominate motive of the Subject Paragraph was to respond to request for information.

39. I have set out the chronology of the important letters/ memos exchanged between the parties at paragraphs 9 - 11 of the Judgment.  It is not disputed that the Letter was issued shortly after the Joint Circulation Letter.  There are no letters issued by the Defendants after the Joint Circulation Letter prior to the Letter.

40. Moreover the Letter has been set out in full in the Judgment and it is clear that the Letter is a response to the request for information demanded in the Joint Circulation Letter.

41. I fail to see any reasonable prospect of success on this ground.

Ground 10(a) and (b): Failure to make a finding there were 2 defamatory statements made in the Subject Paragraph and the failure to consider whether there was vandalism to the Defendants’ cars in the past.

42. The distinction of 2 defamatory statements in the Subject Paragraph has never been pleaded in the Plaintiffs’ Re-Amended Statement of Claim.  Moreover this matter has never been raised in the trial or even in Counsel’s submissions. I fail to see how the Plaintiffs can now raise this as a ground of appeal.

43. In any event, I have already dealt with the arguments relating to whether the Defendants were justified in raising the issue of vandalism and that the Plaintiffs’ letters dated 26 March 2013 and 8 April 2013 supporting the contention there had been damages to cars parked in the Chalet on previous occasions.

44. In such circumstances I fail to see any reasonable prospect of success on these grounds.

Ground 10(c): Paragraph 79 of the Judgment should be confined to belief in damage to the Defendants’ red car and not their cars (plural).

45. For reasons given above, it was never raised as an issue or even a contention that there were 2 defamatory meanings in the Subject Paragraph such that I was obliged to make a finding there was damage to their cars in the past.

46. In any event, I found the Defendants had cause to believe there was deliberate damage to their cars (including the red car).  Regardless of whether it was one car or many cars being damaged, the issue raised is still one of vandalism.  Hence I found it was proper for them to raise it as an issue with the other owners.

47. I fail to see any reasonable prospect of success on this ground.

Ground 11: Erred in holding the defence of qualified privilege was open to the Defendants since the Subject Paragraph refers to all owners.

48. Counsel for the Plaintiffs has not elaborated on how and why this ground of appeal has reasonable prospects of success. I have explained why I found the defence of qualified privilege is open to the Defendants. I shall not repeat my reasoning.

49. I fail to see any merits in this ground.

Ground 12: The salient facts set out in paragraph 4 of the Judgment do not include all the material facts of the case and the same should have been considered in the Judgment.

50. Paragraphs 3 and 4 of the Judgment should be read together. I was of the view that although there were many factual disputes, the salient factual dispute that related to the issues are those set out at paragraph 3 of the Judgment.  By using the word “salient” it can be seen that the factual disputes are not exhaustively listed out in paragraph 3.

51. I went on further to say at paragraph 4 that I do not propose to deal with all the other minor factual discrepancies and that I had regard to all of the evidence of the parties.

52. As for the facts as relevant to the defence of qualified privilege, not all facts are material to the issue.  I have already set out my ruling on various factual disputes or my findings on the facts as relevant to the issue.  The Plaintiffs have not listed what facts I have failed to consider in this regard.  In such circumstances, I fail to see what material facts have not been considered that should have been considered.

53. I cannot see any reasonable prospect of success on this ground.

Wrong test being adopted

54. Although not drafted in the Notice of Appeal, Counsel for the Plaintiffs submitted I have adopted the wrong test at paragraph 78 of my Judgment, in that malice does not only comprise of the sole or dominate intention to harm.  Counsel cited a number of cases to support his submissions.  I have considered the relevant submissions and the authorities cited.

55. In their closing submissions, the Plaintiffs framed their case at paragraph 52 as follows:-

“In any event, even if the defence of qualified privilege were applicable in this case with no defamed person and even if the Defendants believe their statements in the Letter to be true, they would be guilty of malice if their sole or dominant purpose was to harm the Plaintiffs – they misused the occasion for some purpose other than that for which the privilege is accorded by the law: Horrocks v Lowe [1975] AC 135 at 150. Qualified privilege is destroyed by the existence of an improper motive that caused the person to make the defamatory statement.”

56. The closing submissions are consistent with their pleaded case as set out in paragraph 5A(2) of the Amended Reply to Amended Defence under the heading of “Particulars of Malice”, which states:-

“The Defendants’ dominant motive in publishing the Letter (in particular, the words complained of) was to give vent to their personal spite and/or ill-will towards the Plaintiffs. Further or in the alternative, their dominate motive was to injure the Plaintiffs’ (in particular, the 1^st Plaintiff’s) reputation.”

57. In paragraph 78 of the Judgment, I have paraphrased the test of malice as set out in the Plaintiffs’ Closing Submissions. I have also specifically included references to Lee Ching v Lau May Ming [2007] 3 HKLRD 623 at page 669 and Gatley on Libel and Slander paragraph 17.7.

58. The relevant reference to Lee Ching at page 669 is as follows:-

“A. Qualified privilege

175. For present purposes, the following statement of law is sufficient.

“A privileged occasion is … occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”

See Adam v Ward [1917] AC 309 per Lord Atkinson at p. 334.”

59. Paragraph 17.7 Gatley states the following:-

“Mixed Motives. People commonly act from a mixture of motives and it will be impossible to attribute any precise degree of causative effect to one or another. However, for this purpose the improper purpose must be the dominate motive and it is only where the Defendant’s desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motive for publishing what he believes to be true that malice can properly be found.

‘To destroy the privilege the desire to injure must be the dominate motive for the defamatory publication; knowledge that it will have that effect is not enough if the Defendant is nevertheless acting in accordance with a sense of duty or in a bona fide protection of his own legitimate interest.’

‘Qualified privilege would be illusory, and the public interest it is meant to serve defeated, if the protection it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it.’”

60. The excerpts of the principles I have given reference to but not quoted in the Judgment are self-explanatory as to the proper test to be applied in this case.  Those are the legal principles I have applied in this case which was also the test cited by the Plaintiffs’ Counsel.

61. I do not find any reasonable prospect of success on this argument or potential ground of appeal. 

Summary

62. By reason of the matters set out above, I do not find the Plaintiffs’ grounds of appeal to have reasonable prospects of success. Furthermore, I cannot find any other reason why the appeal should be heard.

63. Hence the Plaintiffs’ application for leave to appeal is dismissed with costs to the Defendants.

VARIATION OF COSTS ORDER NISI

64. In summary, the Plaintiffs submit the costs order nisi should be varied by reason of the time wasted on dealing with the defence of justification, which was abandoned at closing submissions.

65. Counsel for the Plaintiffs cited a number of cases for the proposition that the rule “costs follows the event” is only a starting point.  If there are issues which have prolonged the trial unnecessarily, the court may exercise its discretion and award costs against the successful party for that portion of costs. See Wong Kam Tong v Tin Shing Court, Yuen Long (IO) (No 2) [2012] 2 HKLRD 1128.  Though I have read and considered the cases, I do not propose to deal with each and every case cited by the Plaintiffs.  Suffice to say, the proposition of law is trite and cannot be argued otherwise.

66. When considering the appropriate costs order to make, the court may consider the factors set out in Order 62 rule 5 Rules of District Court (“RDC”).

67. In respect of my costs order nisi ordering that costs follow the event, I had considered the matters set out in Order 62 rule 5 RDC.

68. Counsel for the Plaintiffs has not shown to this court or direct the court’s attention to any part of the trial which has solely been spent on the defence justification.  

69. I am of the view that Counsel’s estimate of 1/3 of the trial being unduly prolonged by the defence of justification cannot be correct.  The facts of this case were such that a lot of the factual disputes were intertwined with multiple issues.  Examination into the Defendants’ honest belief did not only relate to the defence of justification but also had bearing on their credibility and the Plaintiffs’ allegations of malice.

70. In all the circumstances, I cannot see how the defence of justification had unduly prolonged the trial.

71. I had also considered the conduct of the Plaintiffs during the trial.  Although I did not make any specific findings on the Plaintiffs’ credibility, for reasons set out in the Judgment, I found the Plaintiffs’ explanation regarding their letters dated 26 March 2013 and 8 April 2013 to be untenable.  It is evident the Plaintiffs had been less than forthcoming in their evidence during the course of trial.

72. Having considered the matters set out above and having found the Defendants successful in their defence, being a complete defence to the Plaintiffs’ claim, I see no reason why I should depart from the usual costs order, that is, costs to follow the event.

73. Hence I dismiss the Plaintiffs’ application to vary the costs order nisi with costs to the Defendants.

ORDERS

74. By reason of the matters set out above, I make the following orders:-

(1)   The Plaintiffs’ application for leave to appeal be dismissed.

(2)   The Plaintiffs’ application to vary the costs order nisi made on 16 March 2015 be dismissed.

(3)   Costs of the application for leave to appeal and the application to vary the costs order nisi (including the costs of 11 May 2015) be to the Defendants, with certificate for Counsel, to be taxed if not agreed.

(4)   The costs order nisi made on 16 March 2015 be made an order absolute.