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HCA 1500/2020
[2026] HKCFI 2852
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1500 OF 2020
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| BETWEEN |
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CHEUNG WAI YEE |
Plaintiff |
and |
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POON PIK YUK |
Defendant |
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| Before: |
Deputy High Court Judge Jat SC in Court |
| Dates of Hearing: |
2-6, 9-11, 13 March 2026 |
| Date of Judgment: |
2 June 2026 |
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JUDGMENT
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Introduction
1. This is a sad case. In her written Opening Submissions, counsel for the Defendant[1] submitted that:
“Put simply, this case is a cliché family dispute between de facto “sisters-in-law”. The evidence contains multiple cross-allegations and the typical acrimony that comes with a family feud.”
2. That is perhaps an understatement. What sets this case apart from what one may call a “typical” family dispute is the depth of animosity, the intensity of bitterness, even hatred, between the antagonists, as I shall explain presently.
3. The Plaintiff, Ms Cheung Wai Yee (“GoGo”), sues the Defendant Ms Poon Pik Yuk (“Jade”), who is the younger sister of GoGo’s “de facto husband” Mr Poon Tak Hung (“Michael”), for libel published in a Facebook post on Jade’s account on 24 June 2020 (“FB Post”), and subsequent publication and republication of the libel by other media on the internet. GoGo was pregnant at the time and suffered a miscarriage in around mid-July 2020. It is her case that the libel against her caused her tremendous distress, which materially contributed to her miscarriage. She claims various relief: an injunction restraining further publication of the libel, damages (including aggravated and exemplary damages), and a written apology from Jade.
4. Jade admits the publication of the FB Post but denies that it was libellous of GoGo. She denies liability for republication of the original post by other media and how the media reported what she had said in the FB Post. In addition to pleading justification and fair comment in defence, she counterclaims against GoGo for libelling her in GoGo’s responses to the FB Post published by the media on the internet. She in turn seeks damages and an apology from GoGo.
5. The trial of this matter was set down for 10 days, and the hearing took 9 days. GoGo and Jade gave oral evidence and were extensively cross-examined. GoGo also called as factual witnesses Michael, her mother Mdm Tsang Sau Ying and her domestic helper Mdm Yvonnie Haze Cristal. In addition, GoGo adduced expert medical evidence from Dr Felix Wong Wu-shun, on the issue whether the publication of the Words (defined in [15] below) in the manner as pleaded by GoGo materially contributed to her miscarriage.
The Parties
6. It is pertinent to start with a brief description of who the antagonists are in order to have a better understanding of the relevant background to this case. The facts stated in [7] to [13] below are essentially undisputed which I accept as my findings.
7. GoGo was born in Guangzhou in 1984 and moved to Hong Kong in 1990. She grew up with her parents and was educated in Hong Kong. Before 2007, she worked part-time as a model. In 2007 she participated in the Miss Hong Kong Pageant organised by the local television broadcaster TVB. Although she was not selected for the final rounds, TVB offered her an artiste’s contract and a role in a programme called “Foodie 2 Shoes (味分高下)”. She was one of eight assistants collectively known as “Angels of Taste (味之天使)” with the name “Pear (啤梨)”. The programme consisted of some 35 shows and was very popular. She became well-recognised by the public because of her appearance in that programme. Subsequently, she enrolled in the broadcaster’s Artiste Training Course and took part in a number of drama series, usually in some supporting roles, most notably as palace maids in historic dramas. That earned her the nick-name “official palace maid (御用宮女)”. She also starred in a supporting role in a popular drama series “Barrack O’Karma (金宵大廈)” in 2019 with some acclaim. I was referred to favourable media coverage of GoGo covering her TVB days, and her romance with Michael. There is also a flattering portrayal of her in the internet edition of Elle magazine in September 2019 following her successes in 金宵大廈 and her business endeavours which she had developed alongside her acting career. It is fair to say that she enjoyed a fair bit of popularity amongst the public as an entertainment personality.
8. In around February 2013, GoGo met and started a romantic relationship with Michael. Michael is the third and youngest son from a wealthy but low-key local family, often described colloquially as “invisible tycoons”. In around February 2014 GoGo was pregnant with Michael’s child. On 15 March 2015, GoGo and Michael threw a wedding banquet which received some media coverage. Jade attended the wedding. Although GoGo and Michael are never officially married, they have been living together as husband and wife since 2014, and always referred to each other as husband and wife, both within their respective families and in public. Their child, Ashton, was born on 11 November 2014.
9. Jade is Michael’s younger sister. Other than several years while she studied in university in the UK, she always lived in the Poon family house in Kowloon Tong, which was a mansion of around 8,000 sq ft (“House”). The patriarch of the family (“Mr Poon Senior”) lived there with Michael and Jade.[2] Mr Poon Senior’s second son, William, and his family (his wife Eva, and two young children) used to live in the House but they moved out in around May 2017.
10. GoGo came to know Jade soon after she started her relationship with Michael. Jade is about the same age as GoGo. The two of them got along very well and became very close to each other. They were like sisters, or “besties” in social media language.
11. Before May 2017, GoGo and Michael lived in a property in Kowloon City not far from the House. That property was converted from multiple units in an old building into a large flat of over 2,000 sq ft. During GoGo’s pregnancy, they would visit Mr Poon Senior and stay overnight in the House from time to time. According to GoGo, but disputed by Jade, she spent more nights in the House than in Kowloon City during her pregnancy. Whether that was the case is ultimately not important, but the fact that even such a relatively trivial matter is hotly disputed speaks volumes about the enmity between the two sides.
12. William’s family moved out of the House in around May 2017. Michael, GoGo and Ashton moved to live in the House on a permanent basis shortly after that.
13. As stated above, GoGo and Jade used to be very close. Their relationship remained close for around 2 years after GoGo’s family moved into the House. Things began to change in around 2019. By the end of 2019 to January 2020 they were not talking to each other. By June 2020, the relationship between GoGo and Jade had become very tense. Jade moved out of the House in June 2020. What caused that breakdown of relationship is hotly in dispute: they blame each other for what happened, with very serious and damaging allegations of extremely unsavory behaviour being levelled against each other. The nature of these allegations will be apparent when I set out the parties’ contentions in later parts of this judgment.
14. It was against the above background that the publications which gave rise to the present action took place. The Statement of Claim alleges five publications said to be libellous of GoGo, whilst Jade’s counterclaim referred to four publications by GoGo.
The Plaintiff’s Claim
15. It is GoGo’s pleaded case that:[3]
“Since around 24th June 2020, [Jade] had been wrongfully, unlawfully and maliciously procuring the repeated publication and republication of false and/or defamatory words (“the Words”) of and concerning [GoGo] to the world at large by speaking to reporters (including but not limited to reporters working for Apple Daily) and/or by publishing the same via her Facebook account.” (original italics)
16. The Statement of Claim sets out five sets of words allegedly published or republished by Jade, referred to as “the 1st Words” to “the 5th Words”.[4]
16.1 The “1st Words” (ie. the FB Post) – published on Facebook on 24 June 2020 at around 23:32 hrs:
“張韋怡 go go cheung，貪慕虛榮… 你做乜嘢都好你唔會攞到什麼着數，我一定會保護我嘅屋企人… 我要揭穿你嘅真面目… 貪錢嘅程度令人咋舌… 之前就同我扮friend係我面前扮可憐，話需要為個仔計劃將來，叫我同老人家講，最後老人家俾咗1,000,000現金，給乖孫做教學基金，過咗一至兩個星期報紙就出現咗，張小姐過百萬報讀北京課程，鐵一般事實。”
[English translation: “Cheung Wai Yee, go go cheung, greedy, materialistic and fond of vanity… no matter what you do you will not be able to get any kind of benefit, I will protect my family members for sure… I want to expose the real you… the intensity of your greed for money is shocking… previously you pretended to be my friend and pretended to be needy, saying you had to plan for your son’s future, asking me to talk to the old man, at the end the old man provided 1,000,000 cash for the good grandson’s education fund, a week or two later newspapers reported, Miss Cheung used over a million to enroll [sic] in a Beijing course, facts as true as iron”]
16.2 The “2nd Words” – published on 28 June 2020 at around 00:44 hrs on HK01, a Hong Kong based media outlet with a news/infotainment website:
“張韋怡…私吞家翁給孫仔的100萬教育基金，供自己到北京讀書”
[English translation: “Cheung Wai Yee…embezzled the 1 million education fund given by her father-in-law to the grandson, used it to fund her Beijing education”]
16.3 The 3rd Words appeared in an article on the website of HK01 on 26 June 2020 (ie. this article was published earlier in time than the 2nd Words): -
“張韋怡… 欺騙其父百萬鉅款”
[English translation: “Cheung Wai Yee… defrauded her father huge sum one million”]
16.4 The 4th Words – this appeared in an article in HK01 on 26 June 2020 at around 13:47 hrs (also earlier in time than the 2nd Words): -
“張韋怡… 騙其父100萬給囝囝讀書，轉頭用來供自己到北京讀書”
[English translation: “Cheung Wai Yee… deceived her father that one million was for her son’s education, turned around and used it to fund her own Beijing education”]
16.5 The 5th Words – published on 4 July 2020 on the website of Next Magazine (an infotainment magazine published by the Apple Daily Group, now defunct): -
“06年落選港姐、現年36歲的張韋怡（Gogo），6年前與經營家族生意的有米男友Michael Poon結婚，婚後誕下一子Ashton… 不過，早前Gogo就被姑仔爆料，指她貪錢不特止，更借Ashton名義私吞老爺100萬教育基金”
[English translation: “Year 06 Miss Hong Kong’s loser, now 36 years old Cheung Wai Wee (Gogo), 6 years ago married wealthy boyfriend Michael Poon who was running a family business, gave birth to a boy Ashton after marriage… but, early, Gogo had been whistle-blown by her sister-in-law, alleging she was not only greedy about money, but made use of Ashton’s name to misappropriate her father-in-law’s one million education fund”]
17. The Statement of Claim alleges that the Words in their natural and ordinary meaning meant, or were understood to mean that:
“8.1 [The Plaintiff] dishonestly deceived [the Defendant]’s father into paying HKD 1 million to [the Plaintiff], falsely claiming it was to be used for the education of [the Plaintiff]’s child, when in reality it was to be used for [the Plaintiff]’s own school fees in Beijing.
8.2 [The Plaintiff] defrauded [the Defendant]’s father out of greed or otherwise treated [the Defendant]’s father badly.
8.3 [The Plaintiff]P was a dishonest and/or immoral person who should never be trusted and/or should be shunned and avoided.”
18. In his opening submissions, counsel for GoGo[5] submitted that the “sting” of the libel is that GoGo dishonestly misappropriated the $1m gift from Mr Poon Senior to Ashton and used the money for her own benefit. That has been conveniently referred to as the “embezzlement sting” in the course of the trial.
19. It is pertinent to note that whilst it may be said that the meanings pleaded in Statement of Claim paragraphs 8.2 and 8.3 are more general charges, Mr Lam confirmed that those two paragraphs are not intended to convey meanings in addition to the embezzlement sting. Counsel for Jade did not contend otherwise, and did not attempt to defend those meanings distinctly from the embezzlement sting contended by GoGo.
20. The Statement of Claim goes on to plead malicious falsehood, but in the context of the case that cause of action adds nothing to the claim in defamation. Malice, however, is relied on in support of the claim for aggravated and exemplary damages.
21. A significant aspect of GoGo’s case is that she suffered a miscarriage as a result of the stress, and distress, caused by the publication of the Words. It is her pleaded case that:
“As a result of the above malicious defamation, [the Plaintiff ]’s reputation had been seriously damaged. She suffered considerable stress, embarrassment, and injury, including but not limited to a miscarriage (spontaneous, with gestation, 9 weeks’ pregnancy) on or about 29th July 2020, which led to [the Plaintiff]’s admission into Queen Elizabeth Hospital on 30th July 2020.” (original italics)[6]
22. GoGo further relies on the fact that on 15 July 2020, her solicitors sent Jade a demand letter (“AT Letter”), in which GoGo demanded Jade to take steps inter alia to delete the libels permanently from the social media, not to publish any further libels against her and to publish a retraction and apology. No demand for monetary compensation was made in that letter. However, Jade failed to respond to the AT Letter at all.
23. GoGo also claims financial loss by way of special damages, including rental for alternative temporary accommodation and expenses for consulting a psychiatrist.
24. Finally, GoGo seeks an injunction and an order compelling Jade to make a written apology.
The Defence: Meaning, Justification and Fair Comment
25. Jade admits posting the 1st Words on her Facebook account, although she said that the account was a “private” one and could only be seen by no more than 20 people.[7] She admits to having spoken to one reporter from Apple Daily, named Grace, who contacted her on 25 June 2020 in respect of the FB Post. She denies authorising, or procuring the publication and republication of the 2nd to 5th Words.
26. Jade denies that the 1st Words meant or were understood to mean the embezzlement sting, or any defamatory meaning.
27. Moreover, she avers that “publication of the 1st Words was justified”,[8] and sets out a lengthy list of alleged facts in support of that plea.[9]
28. Additionally, Jade relies on fair comment. The Defence and Counterclaim pleads that:
“the Defendant’s comment as to the Plaintiff being vainglorious (“貪慕虛榮”) and greedy for money (“貪錢”) represented the Defendant’s fair comment about the Plaintiff …”[10]
29. Lengthy particulars are then set out in support of that plea.
30. Jade in turn counterclaims against GoGo for her publication of allegedly defamatory words in what are referred to as “1st Offending Words” to “4th Offending Words.” The relevant publications will be set out in a later section of this judgment.
31. Jade seeks damages, an order for a written apology and injunctive relief by way of counterclaim.
32. I propose to deal with the Plaintiff’s claim first, then turn to consider Jade’s counterclaim.
Issues – Plaintiff’s Claim
33. The main issues on liability in relation to GoGo’s claim are:
33.1 Whether the Words, or any of them, bear the sting relied on by GoGo.
33.2 Whether Jade can rely on the defence of justification.
33.3 Whether Jade can rely on fair comment.
33.4 Whether Jade is liable for the publication or replication of the Words.
Whether the Words Defamatory: Natural and Ordinary Meaning
34. The entire FB Post, in its original words and format in its entirety, is set out in Annex A.
35. GoGo’s case is relatively straight forward: the offending words bore or were understood to bear the meaning that she dishonesty misappropriated the $1m gift from Mr Poon Senior to Ashton for her own use, ie. the embezzlement sting.
36. In her written Opening Submissions, counsel for Jade explained her case is that:
“A plain and ordinary reading of D’s 1st Words does not support P’s contention that D accused her of “embezzlement”. What D did was simply put two and two together, that:
(a) P repeatedly represented herself as poor-to-do, unable to afford Ashton’s overseas education, resulting in D procuring a $1m cash gift from Poon Sr for Ashton (之前就同我扮 friend 像我面前扮可憐，話需要為個仔計劃將來，叫我同老人家講，最後老人家俾咗 1,000,000現金，給乖孫做教學基金); and
(b) A few weeks later, newspapers reported that P enrolled herself in a Beijing EMBA program costing over $1m (過咗一至兩個星期報紙就出現咗，張小姐過百萬報讀北京課程).”
“D has never mentioned to anyone, including the reporter that P had embezzled the $1m. Put simply, those are not her words. It has always been D’s position that she did not know whether P used the $1m or not. What surprised her and what she meant in her Facebook post was P having $1m to spend with P’s repeated representations of impecuniosity in front of her over the years.”
37. In short, Jade’s defence is that the FB Post did not mention the “embezzlement sting” contended by GoGo, but only referred to the two facts stated above, which she seeks to justify. She claims that the “embezzlement sting” first appeared in HK01’s article (the 4th Words) on 26 June 2020, which she did not procure or authorise.
38. The main issue is therefore what is the natural and ordinary meaning of the Words. Counsel agree that the 1st Words, contained in the FB Post, should be considered separately from the 2nd to 5th Words, because there is no dispute that Jade published the FB Post whereas her responsibility for the publication of the 2nd to 5th Words is disputed. I accept that approach would be appropriate.
39. There is no dispute that in determining the natural and ordinary meaning, no evidence is admissible. Counsel agree that in a trial before a judge sitting without a jury, as is the present case, it is for the court to decide which meaning contended by the parties is the “one meaning” that the offending words bear.
40. There is no dispute on the applicable legal principles on the issue of meaning. Counsel for GoGo in his written Opening referred to the statement of principle in Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at [42] per Lok J:
“42. There is no serious dispute about the following principles to be applied in ascertaining the meaning of the words in a libel action:
(i) Words in an article are normally construed according to their natural and ordinary meaning, i.e. the meaning in which reasonable people of ordinary intelligence, with the ordinary personal’s general knowledge and experience of world affairs, would be likely to understand them;
(ii) The natural and ordinary meanings include implied, inferred and indirect meanings;
(iii) Although the same words in an article may bear different meanings to different readers (because of their temperament, knowledge or experience etc.), for the purpose of defamation litigation, the words have only one single meaning, and the court has to determine what that single meaning is;
(iv) For the purpose of ascertaining the single meaning, the court puts itself in the position of a fictitious ordinary reader;
(v) The fictitious ‘ordinary reader’ is described as one with the following characteristic:
‘He is a sort of half-way house between the unusually suspicious and the unusually naïve. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care... and his capacity for implication or drawing inferences is greater than the lawyer’s... The layman reads in an implication much more freely, and... is especially prone to do so when it is derogatory...’
(vi) The hypothetical reader is taken to be the representative of those who would read the publication in question;
(vii) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation’;
(viii) The context and circumstances of the words in an article must be taken into consideration, and the article must be taken as a whole;
(ix) Where the alleged libel is contained in a letter, the whole of the correspondence would form part of the context, for it may be assumed that the other party to the correspondence is aware of its contents;
(x) Where there is disagreement as to what should count as context, it has been suggested that the test is what, having regard to all the circumstances, a reasonable person would be regarded as having read or seen.” (footnotes omitted)
41. To similar effect is Independent Commentators Associations Limited v Joint Publication (HK) Co Ltd [2021] HKCFI 743 at [21]-[22] per Deputy High Court Judge Richard Khaw SC, cited by Counsel for Jade in her written Opening:
“21. Regarding the nature of the inquiry: -
(1) The single meaning rule applies. This means the words complained of are deemed to bear only one natural and ordinary meaning, which is the meaning that the words would convey to the reasonable reader;
(2) In determining meaning, words in a publication are normally construed according to their natural and ordinary meaning. This does not involve a technical process of construction or analysis. The relevant inquiry is what meaning the words would convey to the mind of an ordinary, reasonable, fair-minded reader;
(3) Regarding the question of how the meaning conveyed by the words to the mind of an ordinary, reasonable, fair-minded reader is determined, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 provides the following guidance at §14: -
(a) The governing principle is reasonableness.
(b) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as a man who is not avid for scandal, and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(c) Over-elaborate analysis is best avoided.
(d) The intention of the publisher is irrelevant.
(4) Further, in some circumstances, the defamation does not lie in the actual words used, but in an inferential or implied meaning that the words are capable of bearing without the need to have recourse to extrinsic facts.
22. Regarding the scope of the relevant inquiry:-
(1) The article must be read as a whole. A reasonable reader is assumed to have read the whole article complained of.
(2) The context and circumstances of the publication must be taken into account.
(3) In reading a publication in its entire context, the court will also bear in mind the general tenor of the entire publication. The fact that the publication gives a generally uncomplimentary rendering of the plaintiff will obviously affect a reasonable reader’s understanding of the specific portions or statements in the publication.”
42. Additionally, Mr Lam placed emphasis on Stocker v Stocker [2020] AC 593 where Lord Kerr of Tonaghmore JSC observed, in relation to the importance of context in publications on social media, that:
“41. The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.
42. In Monroe v Hopkins[2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter:
‘The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.’
43. I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.
44. That essential message was repeated in Monir v Wood [2018] EWHC (QB) 3525 where at para 90, Nicklin J said, “Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly.” Facebook is similar. People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting. Some observations made by Nicklin J are telling. Again, at para 90 he said:
‘It is very important when assessing the meaning of a Tweet not to be over-analytical. … Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.’
45. And Nicklin J made an equally important point at para 92 where he said (about arguments made by the defendant as to meaning), “… these points only emerge as a result of close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by his/her side making points like this.”
43. Applying the principles identified in the authorities mentioned above, I have little difficulty in accepting GoGo’s case that the sting of the 1st Words was that she dishonesty misappropriated the $1m gifted by Mr Poon Senior to Ashton for her own use. That is, in my view, the most natural reading of the 1st Words in the context of the FB Post as a whole. I note that the FB Post accused GoGo of being evil, not legally married to Michael, greedy, vainglorious and dishonest. Against the background of those allegations the two “facts” of Mr Poon Senior gifting $1m to Ashton for his education and GoGo shortly thereafter enrolling in a course costing over $1m are stated. A reasonable person reading the FB Post would understand the offending words to mean that GoGo dishonesty took the money and used it for her own studies.
44. It is plainly not good enough for Jade to contend that she was only putting two and two together but did not expressly say that GoGo embezzled the money. As Lord Devlin perceptively observed in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277:
“… the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.”
45. It is therefore futile to contend that she did not expressly say in the FB Post that GoGo had taken the money. It is also misguided because the two “facts” are not themselves defamatory: what is defamatory is the inferential or implied meaning that a reasonable reader would understand to mean from the words used. It is that inferential meaning ie. the sting of the libel, that the defendant has to justify.
Justification & Fair Comment Unsustainable
46. Counsel for Jade realistically accepts that if I decide that the FB Post bears the embezzlement sting contended by GoGo, Jade has no defence.
47. In my judgment, she is right to so concede.
48. First, because the defence does not purport to justify the sting of the libel.
49. Secondly, the fair comment defence does not get off the ground. Indeed, fair comment is effectively abandoned in the written Closing Submissions of Jade’s counsel. That is not surprising. A defendant can only avail of this defence if the offending words would be understood to be comment, and that the comment is on a subject matter which is of public interest. The defence fails in both aspects.
Publication of the 2nd to 5th Words and the 1st to 4th Offending Words
50. The more taxing issue on liability is whether Jade is liable for the publication of the 2nd to 5th Words. In that context, it is material to consider in more detail the sequence of events.
51. The FB Post was posted on 24 June 2020 on Jade’s “private” Facebook account. I am given to understand that for a “private” account, only her “friends” could read the post. Jade’s evidence is that at the time she had less than 20 “friends” who could read her posts. One of those friends was “Yan Yan”, who was someone in the media business. It would appear that Yan Yan took a screenshot of the FB Post and posted the screenshot to others. The screenshot showed that the FB Post had been read at least twice. Grace, the reporter from Apple Daily, apparently received Yan Yan’s screenshot, although it is unclear whether she received it directly from Yan Yan or from other intermediaries.
52. Grace then contacted Jade on her mobile phone. Jade did not know Grace, but she explained that since she used her name “AJ Poon” for her Facebook and other social media accounts, it would not be difficult for others to locate her on social media platforms. In any case, Grace managed to locate Jade’s contact and reached out to Jade on 25 June 2020 at around 15.24 hrs.
53. Jade admits that she did respond to Grace’s enquiries “once” on or around 26 June 2020.[11] However, “once” is not accurate in that Jade exchanged a number of texts and voice messages with Grace, and had spoken with Grace at least once on the phone, between 26 June and 27 June 2020. Jade also sent Grace a number of screenshots of messages exchanged between her and GoGo from 2018 when the two of them were on good terms, with a view to substantiating some of the things that she had said about GoGo in the FB Post.
54. An article about the “feud” between GoGo and Jade appeared on the Apple Daily website on 26 June 2020 at 00.30 hrs (“Apple 1st Article”). On the evidence, this was the first report of the FB Post on social media. The main picture of the online version of the Apple 1st Article is a section of the FB Post screenshot showing GoGo’s name. The article extensively quoted the contents of the FB Post, GoGo’s immediate response to the FB Post, and the whole FB Post was reproduced.
55. The Apple Daily website followed up with an article on 26 June 2020 at 00:59 hrs which reported GoGo’s response to Jade’s post (“Apple 2nd Article”). This article contained the “1st Offending Words” complained of in the Defence and Counterclaim, paragraphs 54-55:
“54. In a news published by Apple Daily on 26 June 2020, the Plaintiff has made the following statements defamatory of and concerning the Defendant (“1st Offending Words”): -
‘【最醜惡的靈魂】張韋怡反擊姑仔指控為保清白不排除採取法律行動
…那些都是十惡不赦的事！我三十多年人看到最醜惡的靈魂！…對於這種低劣骯髒的…
… 直到他們應老爺的要求搬回大宅一齊住，問題便由此事起 …「…佢唔想我哋搬返屋企，咪搵所謂炒咗嘅工人做刀手，做咗好多好恐怖嘅嘢 …菲傭嘅僱主係潘小姐，不過係我老公畀錢請，呢個工人做咗好多好恐怖嘅嘢，好似對小朋友吐口水…不過佢係一個好計較嘅人，我哋（啲物品）全部要分開，如果小朋友掂咗佢雪櫃啲嘢，都可以嘈一大餐…」’
55. An English translation of the 1st Offending Words is as followed [sic]: -
[Most Odious Soul] Cheung Wai Yee counter-attack sister-in-law’s accusation.
Not precluding taking legal action to preserve integrity
... all those heinous acts! The most odious soul I have seen in my over 30 years’ life ... In face of such inferior and filthy ...
... Until they have moved back to the big house to live together at the request of the father-in-law, problems then emerged therefrom ... she did not wish us to move back home, therefore got the so-called fired helper as swordsman, did a lot of horrible things ... the Filipino helper was hired by Ms Poon but paid by my husband, this helper did a lot of horrible things, such as spitty [sic] at child ... she (the Defendant) is a very calculating person, all our (things) have to be separated, (she) would make a big fuss had the child touched her things in the fridge ...”
56. On 26 June 2020 at 13.47 hrs, an article containing the 4th Words appeared on HK01’s website (“HK01 1st Article”). This article recounted the FB Post and reported GoGo’s response to the FB Post, denying the accusation that she had deceived Mr Poon Senior of $1m and taken the money for her own education use. She also reportedly denied other accusations Jade had made against her.
57. On 26 June 2020 at 21:30 hrs, Apple Daily’s website published another article (“Apple 3rd Article”), this time publishing Jade’s retort to GoGo’s accusations in the Apple 2nd Article. The article stated that Jade contacted Apple Daily proactively to express her wish to respond to the matter directly. The article reported Jade’s statement that she “really did not know” whether GoGo had taken Mr Poon’s Senior’s money, but reiterated that very soon after Mr Poon Senior’s gift there was news that GoGo enrolled on the EMBA course.
58. Meanwhile, on 26 June 2020, HK01 published on its website an article about the row between Jade and GoGo, with the title “張韋怡否認貪錢指控 姑仔再反擊揭阿嫂玩分化:大話一個冚一個!” (English translation: GoGo Cheung denies greedy for money allegation Sister-in-law counter-attacks again revealing [GoGo] of attempting to play off one against another: one lie covering another lie). The opening line of that article contained the 3rd Words. The relevant part of the sentence is as follows:
“無綫(TVB)藝員張韋怡 (GoGo) 日前被潘性姑仔在網上閙貪慕虛榮、心地差，指她欺騙其父百萬鉅款…”
“(English translation: TVB artiste Cheung Wai Yee (GoGo) was recently accused by her sister-in-law surnamed Poon on the internet as being vainglorious and had a bad heart, and accused her [GoGo] of defrauding her father of a huge sum of a million dollars ...)”
59. Articles about the quarrel between GoGo and Jade appeared on a number of other social media websites in the following days. Allegations and counter-allegations were exchanged through these articles on social media. For example, on 27 June 2020, an article in Oriental Daily’s website reported an accusation from GoGo that this was a “copy case” of what happened 6 years before between Jade and William’s wife. Jade in turn alleges that GoGo had defamed her by this article, ie. the “2nd Offending Words”:
“… 姑仔嘅指控6 年前出現喺我老公嘅二哥同阿嫂身上，所以我只係Copy Case。全部都係佢扭曲事實惡意中傷！… 佢36歲未婚，未有穩定感情，冇正常社交圈子，亦冇任何工作經驗，每日只係閒着喺屋企盤算，佢呢啲莫須有指控，交畀老公家庭自己去拆解。”
“An English translation of the 2nd Offending Words is as followed [sic]:-
Accusations from the sister-in-law were made against the second elder brother of my husband and his wife 6 years ago, so mine is only a copy case. Everything was about her twisting the facts and malicious slander!
... She is 36 and single, with no stable relationship, no normal social circle, and no work experience, just idling at home every day to machinate. Her such baseless accusations are to be left to my husband's family to dismantle.”
60. Another article appeared on HK01’s website on 28 June 2020, with a headline:
“張韋怡，姑仔豪門恩怨白熱化老公 Michael撐妻：咪再抹黑我老婆”
“(English translation: Feud within wealthy family between Cheung Wai Yee and sister-in-law turns white hot Husband Michael supports wife: stop smearing my wife”
61. The opening sentence of this article contained the 2nd Words complained of by GoGo, which I have set out in [16.2] above and need not repeat here.
62. On 4 July 2020, an article in the Next Magazine appeared on the magazine’s website. This article contained the 5th Words which I have set out in [16.5] above.
63. On 15 July 2020, GoGo on her Facebook page published a post, in which she wrote what are referred to as “3rd Offending Words” in Jade’s counterclaim:
“… 從未見識過如此攻心計、歹毒、厚顏無恥、口是心非，把家當戰場，每天謀算、設計、利用所有人和捏造事是非的「撒但」! … 這個「潘小姐」搬弄虛構的所有情節、用心良苦抹黑、誣衊本人 … 六年前同一手段造假，誣衊二哥嫂—家，不停攻擊抵毀，亦拉我老公和我選擇信了這個「大話精」為她出頭，離間自己2 個哥哥兄弟感情，現在她「人格信譽」徹底破滅！所有人看到她「無中生有」「編造離奇謊言」的「絕技」，簡直係正常人想像不 到的無聊與不知廉恥！ 「擘大眼睛講大話！」 …歪曲事實！倒果為因！生安白造！爭功推過！弄虛作假！所有卑劣歹毒行為思路都做足，家中各人人性玩弄及利益利用到盡！佢如果有能耐出去世界做罪犯，必定可以做翻大事！話晒咁有恆心盤算與攻擊！可惜佢嘅主場一直係家裏…邪靈「潘碧玉」血債血償！…有人養鬼仔（嬰兒乾屍）、養蛇、落降頭！把家中觀音像用紅布遮眼！…”
“An English translation of the 3rd Offending Words is as followed [sic]:-
··· Never encountered a ‘Satan’ so scheming, vicious, shamelessness, duplicitous, taking home as the battlefield, contemplating everyday, plotting, using everyone and fabricating scandals! ...
... This ‘Miss Poon’ played around with all the fictional plots, cudgelled her brain to slander me ... 6 years ago (she) feigned with the same artifice, slander the second elder brother couple's family, attacked and slandered unceasingly, and dragged my husband and I into opting to believe this ‘big fat liar’ and stood up for her, dissociating the brotherhood of her 2 own elder brothers. Now her personality and credibility are completely shattered! Everyone sees her consummate skill of orchestrating bizarre lies out of nothing. Such triviality and shamelessness are beyond the imagination of normal people! ‘Lying with her eyes wide opened! ’
Twisting the truth! Inverting causes and results! Framing up! Contending for merits and shirking faults! Falsifying! Performing all sorts of despicable acts and thoughts, fondling with the human nature of everyone in the family and exploiting all advantages! She would be doing big things has she had the endurance to get out to the world and be a criminal! Afterall (she is) dedicated to plotting and invading! Regrettably her home court has always been at home! ...
... Evil spirit ‘Poon Pik Yuk’ pay your blood debt eye for eye! ...
... Someone raising a ghost child (mummy of a baby), raising snake, performing tame head! Covering the eyes of the goddess statute at home with red cloth! …”
64. The following day, 15 July 2020, GoGo’s solicitors sent the AT Letter to Jade, in which the firm on her behalf complained of the alleged libels and demanded Jade to (i) permanently remove all defamatory materials from the social media, (ii) cease further libellous publications of GoGo, (iii) publish a statement admitting her libels against GoGo, (iv) publish an apology to GoGo in respect of the libels in major news media, and (v) proactively monitor and remove all related libels of GoGo published in the media. Jade received the AT Letter but did not respond at all.
65. Finally, Jade complains that on 9 August 2020, GoGo on her WeChat page shared a news article concerning her dispute with Jade and posted messages defamatory of her (4th Offending Words”):
“…還操作邪術想置我於死地…我亦不是這家庭唯一一個受害的「嫂嫂」… 她每次都以攻擊「嫂嫂」為表面，多年來係「慣犯」借欺凌誣捏入門嫂嫂，隔空攻擊兩個哥哥，侵略謀奪利益為實！…無中生有，還有編造謊言的細節，但是她可以斷章取義，作為依據，睜開眼睛講大話…還非常懂得利用身邊的人造就佢的故事性及分化、借刀殺人等…”
“An English translation of the 4th Offending Words is as followed [sic]:-
... Further operated witchcraft so as to render me to death ... I am not the only sister-in-law being victimised in this family ...
... Every time she would attack ‘sister-in-law’ on the face of it. For years (she) was a ‘recidivist’, through bullying and slandering sisters-in-law attacked the two elder brothers in the air, to actually invade and rake in gains! ... Creating something out of nothing, fabricating details of (her) lies, but she can take passage out of context as (her) basis, lying with her eyes widely opened ... and well apt at using people around her to facilitate her story-telling and dissociation, killing people with borrowed knife, etc. ..”
66. It is unnecessary to set out all the other articles about the dispute between GoGo and Jade published on the internet, which are set out in the Agreed Chronology of Events. The above summary sufficiently gives a flavour of the accusations and counter-accusations that took place on social media from 24 June to mid-July 2020, when interest in the feud seems to have died down, as well as the intensity of the bitterness they harboured against each other.
67. I accept Jade’s evidence that she did not expressly authorise or procure the republication of the FB Post or the 1st Words by other media. However, she accepted that those who could read the FB Post on her Facebook page could show the FB Post on their mobile devices to others, or, as in the case of Yan Yan, capture the post and forward the screenshot to others. She agreed that she intended Grace to publish her version of events and knew that Apple Daily would do so. She also expected Grace would use the screenshot messages she had sent to Grace, for which reason she redacted the names of other people mentioned in the messages. When asked by this Court, she confirmed that she expected other media would pick up the story and report about it. There is therefore no doubt, and I so find, that she intended that the 1st Words would be published by Apple Daily and republished by other media.
68. It is submitted on Jade’s behalf that the 2nd to 5th Words, which “interpreted” the FB Post to mean that GoGo had embezzled the $1m, was not what she had said in the FB Post but was twisted by the media (she called it “echo chamber effect”) to hype up tabloid news for their own benefit.
69. I do not accept that submission. I have found that the natural and ordinary meaning of the 1st Words is that GoGo had embezzled the $1m gift from Mr Poon Senior to Ashton. In my judgment, the 2nd to 5th Words are republication of that sting. On Jade’s own evidence, it is reasonably clear that she anticipated and intended Apple Daily’s publication of what she had said in the FB Post including the 1st Words, and that other media would further publish what Apple had published. I am satisfied, and find, that the republication of the natural and ordinary meaning of the 1st Words by other media was within her reasonable contemplation.
70. Accordingly, Jade must be liable for the publication of the 1st Words in the FB Post, and the republication of the natural and ordinary meaning of the 1st Words, ie. the embezzlement sting, in the 2nd to 5th Words.
Counterclaim
71. I have recounted the sequence of events following the publication of the FB Post up to the publication of the 4th Offending Words on 9 August 2020.
72. GoGo admits the publication of the 1st to 4th Offending Words. There is no dispute that the 1st to 4th Offending Words bore the meanings relied on by Jade (save for one minor exception), as follows:
72.1 In respect of the 1st Offending Words, that Jade:
“(a) had performed some hideous acts;
(b) was a person with inferior and/or low moral;
(c) did not wish and/or was unhappy with the Plaintiff and her family moving into the Poon Residence;
(d) had plotted her ruin of the Plaintiff through the domestic helper by doing horrible acts including spitting at child (without specifying which "child" the Plaintiff was referring to);
(e) could not afford to pay for the domestic helper she hired and had needed to have Michael Poon paying for her;
(f) was a mean and calculating person who would ring off her belongings at home and make a scene out of trivial matters including when Ashton Poon has touched her things inside the refrigerator.”[12]
72.2 The 2nd Offending Words are said to mean or understood to mean that Jade:
“(a) had made unfounded and malicious accusations against William Poon and Eva 6 years ago;
(b) was a deserted person without a steady partner, proper social circle or a career; and/or
(c) only spent her time at home machinating and planning accusations against her family members.”[13]
72.3 In relation to the 3rd Offending Words, that Jade:
“(a) was an obnoxious, shameless, devilish person who should be shunned and avoided;
(b) had plotted to slander the Plaintiff unceasingly;
(c) had similarly slandered William Poon and Eva 6 years ago;
(d) had plotted to dissociate William Poon and Michael Poon;
(e) was a liar who should never be trusted and/or should be shunned and avoided;
(f) had always plotted to exploit and take advantage of her family members; and
(g) was wicked, devilish and practice [sic] witchcraft.”[14]
72.4 The 4th Offending Words are said to mean or understood to meant that:
“(a) the Defendant practised witchcraft with a view to causing the death of the Plaintiff;
(b) the Defendant had always been attacking her sisters-in-law;
(c) the purpose of attacking the sisters-in-law was to attack the elder brothers so that the Defendant would make material gain;
(d) the Defendant was a liar who should never be trusted and/or should be shunned and avoided;
(e) the Defendant had dissociated the relationship between Michael Poon and William Poon; and/or
(f) the Defendant had used people around her for the purposes of lie and dissociation.”[15]
73. Jade claims that GoGo published the 1st to 4th Offending Words with malice, knowing the same to be untrue and – in respect of the 3rd Offending Words – “repeatedly adopted robustly worded and/or outrageously derogatory phrases to slander the Defendant … with a view to disdaining and scorning the reputation of the Defendant”.[16]
74. On her part, GoGo pleads justification to substantially all the meanings relied on by Jade,[17] with lengthy particulars of a long catalogue of alleged bad character and obnoxious behaviour on Jade’s part. She also relies on the defence of Reply-to-attack qualified privilege.[18]
75. A substantial amount of time was taken up with evidence relating to the matters pleaded in purported justification and fair comment, which are mostly trivial and irrelevant. For example, considerable time was taken up in exploring whether GoGo had bought counterfeit handbags and shoes through the internet: GoGo said she did a few times only because Jade suggested that and found the websites selling them; Jade’s case was that GoGo was vainglorious and used to posing counterfeit goods as genuine luxury articles. Other examples include cross-examination on some unhappy episodes in her relationship with Michael, most of which happened some years ago; on whether she wanted her family to live in the House; whether she was disrespectful to Mr Poon Senior, etc. Jade, in turn, was cross-examined on many aspects of her personal life such as whether she had social life, whether she had worked and paid any tax, and on whether it was fair to call GoGo “failed Miss Hong Kong contestant”.
76. What makes matters worse is that most of the evidence presented at trial is, at best, equivocal. A good example is that both sides rely on some voice messages of one Mable, who was a nurse/carer of Mr Poon Senior. Jade produced a number of voice messages Mable sent to her in January 2020, in which Mable mentioned a number of incidents such as Mr Poon Senior being very upset about Michael terminating the employment of his previous helper Maria because she had been rude to GoGo (another matter that was explored at some length in cross-examination), and that Mr Poon Senior allegedly scolded Mdm Tsang one day while she was there looking after Ashton. Presumably these recordings were produced to show GoGo and Mdm Tsang were not as nice and kind as they make themselves out to be. On the other hand, GoGo produced some very long voice messages Mable sent to her in October 2020 after Mable had left the employment, in which she referred to Jade as “evil girl (魔女)” and apologised to GoGo for her previous “misunderstandings” towards GoGo which she attributed to her having been misled by Jade. But neither side called Mable to give evidence. According to Mdm Tsang, she remained on good terms with Mable, who had told her (Mdm Tsang) that she was reluctant to be involved as a witness. In the circumstances, I am unable to give any weight to Mable’s messages.
77. Another example is the allegation that Jade had practised witchcraft. In this regard, GoGo relied on the evidence of Mdm Tsang and Michael, and voice messages exchanged between them on 19 July 2020 in which Michael purportedly acknowledged his and Mr Poon Senior’s knowledge of Jade practising witchcraft, and that he had “terminated all relationships” with Jade. Although both of them referred to this subject in their witness statements, I made clear to counsel that on a serious allegation of this kind I would like to be assisted by the witnesses’ oral evidence to explain the context in which the voice messages were exchanged. However, neither Michael nor Mdm Tsang gave oral evidence on this matter and were not cross-examined on it. On her part, Jade accepted that she had kept a snake in her room as a pet but denied any participation in witchcraft. The accusation is a serious one, and I am far from satisfied that the allegation is proved on the balance of probabilities.
78. There are many other factual disputes of that kind. It is not really possible for a trial judge to determine what was in fact the true picture and who was right or who was wrong. I decline to do so in the circumstances of this case.
79. Accordingly, GoGo fails to justify the defamatory meanings of the 1st to 4th Offending Words.
80. However, the evidence do support GoGo’s plea of qualified privilege.
81. In the first place, the 1st to 3rd Offending Words were published by GoGo in response to media reports of what Jade had said about her, firstly in the FB Post and then republished in subsequent media reports. Up to around mid-July 2020, the accusations and counter-accusations exchanged between the two were widely publicised on social media. The media frenzy died down when the elder brother of the family put his foot down and told them to stop. But the intensity of the feud was palpable from the articles presented in evidence.
82. In this connection, I would mention in particular the Apple 3rd Article published on 26 June 2020 (see [57] above). That article reported Jade had contacted Apple Daily proactively to express her wish to respond to GoGo’s allegations directly. In response to the embezzlement allegation, which Jade claims first appeared in the HK01 1st Article published on 26 June 2020 (see [54] above), she stated that she “really did not know” whether GoGo had taken the $1m. That was regrettable. If Jade had wanted to clarify that she was not accusing GoGo of stealing the money, she should have said so clearly and unequivocally. Instead, by saying that she “did not know” whether GoGo had taken the money, she was adding fuel to the fire by inviting the reader to speculate whether that allegation was true.
83. The 3rd Offending Words were published on 15 July 2020 on GoGo’s Facebook account. That was about a week after the initial wave of articles, but GoGo had gone to lawyers and the AT Letter was issued on 15 July 2020. That explains the depth of feeling, and the use of words, in that post.
84. The 4th Offending Words were taken from chat messages GoGo exchanged with one “maggie” on WeChat, apparently on 9 August 2020. I have received no evidence of who “maggie” was or the context of the chat. Nevertheless, the chat messages were undoubtedly about her dispute with Jade, and her taking legal action to vindicate herself. Moreover, 9 August 2020 was not long after the miscarriage.
85. Second, I accept that GoGo published the 1st to 4th Offending Words with reasonable grounds for believing in their truth. I have already briefly described some of the disputed issues both sides relied on. Although I am unable to make findings of fact as to whose version is true, the evidence does support GoGo’s honest belief in the truth of the allegations.
86. Thirdly, in my judgment, GoGo did not go beyond what was reasonable or proportionate in the circumstances of the case. In this connection, I am reminded of the judgment of Lok J in Multi-Winner at [70], [80] and [85] – [86]:
“70. A recognised occasion for qualified privilege is where the statement was made in reply to an attack. The principle has been summarised in Gatley as follows:
…a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided that they are published bona fide and are fairly relevant to the accusations made … Mere retaliation, which cannot be described as an answer or explanation, is not protected, but the defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude in this respect and the law does not concern itself with niceties in such matters …”
“80. In Incorporated Owners of Tung Lo Court v Tsui Wai Yip ([2015] 4 HKLRD 397 at [55]), the Court of Appeal emphasised that in the case of reply to attack privilege, the reply must be “reasonable, proportionate and relevant”.
“85. In Gatley, the learned authors said the following relating to reply to attack privilege:
(i) The defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude in this respect and the law does not concern itself with niceties in such matter;
(ii) The test of relevance is not whether the statement complained of is strictly necessary for or logically relevant to the discharge of the duty or protection of the interest which is the foundation of the privilege. One should not take the approach that the defendant is only protected in doing the “bare minimum” necessary to comply with his duty. Where the statement has any reference to the subject matter of the privilege, or is in any way pertinent or germane to it, it is material only as evidence of malice to take the case out of the privilege.
“86. In Hamilton v Clifford ([2004] EWHC 1542(QB) at [75]), Eady J also said:
Where the allegations do relate to the subject-matter of the original attack, privilege cannot be excluded purely on the basis of a cool and objective analysis as to logical relevance. As Lord Diplock pointed out in Horrocks v Lowe, the protection afforded by the defence of qualified privilege might prove illusory if it were to be lost on the basis that the defamatory matter could be shown, upon logical analysis, to be irrelevant to the protection of the right upon which the privilege is founded … Therefore it will be generally appropriate for the jury to assess the relevance, or otherwise, as a factor in resolving any plea of malice.” (footnotes omitted)
87. I am satisfied that the defence of qualified privilege is established in this case.
Quantum: Overview
88. GoGo seeks compensatory, aggravated and exemplary damages. In the present case, there is also an added dimension in that GoGo claims that her miscarriage was materially caused by the distress resulting from the publication of the libel against her.
Compensatory Damages
89. It is well-established that compensatory damages serve to compensate the plaintiff for the damage to her reputation; vindicate her good name; and take account of the distress, hurt and humiliation which the words in question must have caused: Oriental Daily v Ming Pao (2012) 15 HKCFAR 299 [35]-[40] per Ribeiro PJ.
90. All relevant circumstances of the case must be taken into account, including: the gravity of the libel; the mode of publication and the extent of circulation; the seriousness of harm caused to the plaintiff’s reputation; the defendant’s failure to retract or apologise for the libellous publication, and conduct of the action which caused additional injury to the plaintiff’s feelings such as insisting on defences which are unfounded.
91. I start with consideration of GoGo’s evidence on the impact of the libel on her. In her Statement of Claim, paragraph 12, it is pleaded that:
“As a result of the above malicious defamation, P’s reputation had been seriously damaged. She suffered considerable stress, embarrassment, and injury, including but not limited to a miscarriage (spontaneous, with gestation, 9 weeks’ pregnancy) on or about 29th July 2020, which led to P’s admission into Queen Elizabeth Hospital on 30th July 2020.” (original italics)
92. In her witness statement, she said:
“56. As a consequence of D’s malicious defamation of me, my reputation had been seriously damaged. Numerous newspaper and magazine reports called me to ask for comments, and I had to spend a considerable amount of time answering all of their queries so as to set the record straight. I spent a considerable amount of time saying and writing things to rebut D’s false allegations in the Words. D’s publication of the Words was, to me at least, a nightmare. The whole incident was troublesome, stressful and embarrassing.
57. Further, as I had said in §12 of my SoC, the tremendous stress suffered by me by reason of D’s publication of the Words since around 24th June 2020 led to my miscarriage in July 2020 …
58. As I suffered considerable distress as a result of D’s malicious defamation of me, I had to seek professional assistance. I consulted a psychiatrist … to help me cope with my stress. We had 6 consultations between 24th August 2020 to [sic] 23rd October 2020, for which I was charged a total of HKD10,330.
60. More importantly, but for D’s malicious defamation of me, I believe my 2nd child with Michael would have been born healthy by now (August 2021), and no amount of money could ever fully compensate my emotional loss and psychiatric sufferings vis-a-vis the death of my 2nd child with Michael.
61. I had thereafter been living under a dark shadow. I tried to make my emotional pain go away by working harder, diverting my attention and energy away from the Words and towards new business projects, but it only worked to a limited extent. The Words and D’s conduct continued to haunt me emotionally like a ghost. Even as at the date of this my witness statement, I still have nightmares about the Words, and I still cry because of the Words. I tried my best to smile more, and I tried my best to make myself happier, but it was not always possible. If I had a weaker mind, I would have killed myself. I was that depressed by D’s malicious publication of the Words, and by the Words’ effect on my reputation, my mind, and my body, etc.” (original emphasis)
93. In oral evidence, she elaborated that she was at work when Grace telephoned her and told her about the FB Post and what Jade had said about her. At first, GoGo did not know what Grace was talking about and did not give Grace any substantial response, but when she saw the FB Post later on she was shocked. She said she totally collapsed and for the next few days she was severely distressed, furious, hysterical and completely broke down. As described above, the “feud” over the social media intensified and continued until around mid-July 2020.
94. On 3 July 2020, GoGo was examined by Dr Chan Lai Yin Ophelia, a specialist gynaecologist, and ultrasound showed a viable foetus of around 5 ½ weeks. It will be recalled that on her Facebook post on 15 July 2020, she said that she was expecting her second child and looking forward to getting back to normal family life.
95. On 17 July 2020, Dr Ophelia Chan examined GoGo and confirmed that her feotus’ heart had stopped. She was told to return for a further examination in two weeks’ time. However, the miscarriage occurred on 30 July 2020.
96. The depth of GoGo’s hatred against Jade is evident from her witness statement, paragraph 57:
“No word can describe how heartbreaking and distressing I was losing my 2nd child with Michael like this. I must emphasize my first pregnancy was wholly uneventful, and Ashton was perfectly healthy. To my mind, that is the best proof I was a healthy woman perfectly capable of giving birth to a healthy child. Save and except the tremendous stress caused by D’s publication of the Words, I can think if no other reason why my 2nd child would die inside my womb like this. I therefore consider D’s publication of the Words to be the sole cause of the death of my 2nd child, and I for my part consider D an evil murderer.”
97. In her oral evidence, she repeated her accusation that Jade was a “murderer”.
98. Naturally, she was cross-examined extensively on her relationship with Jade, on whether there were other causes which might have caused her miscarriage, on the matters pleaded in support of the justification and fair comment defences, as well as matters affecting her credibility overall. However, GoGo’s evidence on her hurt and distress resulting from the publication of the FB Post and republication in subsequent media articles was not seriously challenged. Although Jade in her witness statement cast doubt on the seriousness of the miscarriage incident and the effect on GoGo, it is fair to say that her counsel refrained from challenging GoGo on her evidence on the miscarriage and the devastating effect that had on her as described in detail in her witness statement.
99. I have considered GoGo’s evidence in the round. I accept her evidence and find that she did suffer serious harm and distress as described in her witness statement and oral evidence.
100. The difficult question is whether the publication of the libel caused or contributed to her miscarriage. To that issue I now turn.
Miscarriage: Medical Evidence
101. The objective facts are not in dispute. On 3 July 2020, GoGo was seen by Dr Chan Lai Yin Ophelia, a specialist gynaecologist. Ultrasound scan performed during that visit showed intrauterine pregnancy with a viable foetus corresponding to a gestational age of 5 ½ weeks.
102. On 17 July 2020, GoGo was seen by Dr Ophelia Chan again. Ultrasound showed that the foetus had grown in size but feotal heart movement was not detected. GoGo was advised to repeat another ultrasound scan in two weeks to confirm foetal viability.
103. On 28 July 2020 GoGo started to have vaginal bleeding. The bleeding became worse and she was in considerable pain. In the evening of 30 July 2020 she was admitted to the Accident & Emergency Department of Queen Elizabeth Hospital where the following complaints were recorded: “(a) abdominal pain (2) vaginal bleeding (3) passed tissue mass”. The clinical diagnosis was “incomplete miscarriage”. She received treatment and remained in hospital until 31 July 2020.
104. I accept GoGo’s evidence that in addition to the physical pain of experiencing the miscarriage, which was described in some detail in her witness statement and not challenged, she suffered from tremendous emotional distress from the miscarriage. The issue is whether that pain and suffering was caused by the publication of the Words.
105. In that regard, GoGo obtained leave to adduce expert medical evidence on the following issue:
“Assuming the Words as defined in the Plaintiff’s Statement of Claim had been published by the Defendant in the manner as pleaded by the Plaintiff, did that materially contribute to the Plaintiff’s miscarriage and if so, what is the extent of such contribution.”
106. The framing of that issue is less than ideal. It encompasses two parts: first, whether the publication of the Words caused GoGo any, and if so what, stress; and secondly whether that stress materially contribute to the miscarriage.
107. The first question is a matter of fact for the Court rather than the expert. I have already found that GoGo did suffer from serious hurt and distress as a result of the publication of the libel. What the expert evidence can assist is on the second question ie, the link between the hurt and distress experienced by GoGo and the miscarriage.
108. GoGo’s expert is Dr Felix Wong, who produced an expert report dated 27 June 2023. Dr Wong graduated from the University of Hong Kong in 1976 and obtained master degrees from Singapore and Hong Kong. He was qualified as a specialist in gynaecology, and elected to fellowships in Hong Kong, Britain and Australia. He taught in both medical faculties in Hong Kong and since 1992 was Professor and Director, University of New South Wales, Division of Women’s and Children’s Health, Liverpool Hospital. In that position, he oversaw five hospitals in the less well-to do areas of Sydney. His career covered clinical operations, academic positions as well as research. He has published widely on gynaecology and related subjects. He returned to Hong Kong in 2010 and remained in private practice since. He has acted as expert witness in Medical Council proceedings.
109. Dr Wong saw GoGo in person on 14 February 2023. He explained in his expert report that during the consultation, GoGo confirmed to him the contents of the Statement of Claim, her witness statement, and her subjective feelings towards the publication of the Words were all genuine. He provided his opinion on the basis that what GoGo told him during that visit was entirely true.
110. During the consultation on 14 February 2023, Dr Wong performed a pelvic ultrasound examination on GoGo and took GoGo’s blood sample for lab tests.
111. Dr Wong explained that his examination of GoGo and the blood test report revealed no physical condition or blood abnormality which might affect GoGo’s pregnancy in July 2020.
112. In his report, Dr Wong fairly points out that:
“the exact effect of a mother’s psychiatric, psychological, and emotional state on the viability of a feotus … is a controversial issue within the science community.”
113. He referred to literature which support different sides of the debate. For example, he referred to the webpage of the National Health Service in Great Britain on causes of miscarriage, where it is said (under the heading “Misconceptions about miscarriage”) that:
“An increased risk of miscarriage is not connected to … your emotional state during pregnancy, such as being stressed or depressed”.
114. On the other hand, he refers to research papers which conclude that there is a causal link between maternal psychological stress and increased risk of miscarriage. He specifically points out that whilst most of these research papers are based on studies on animals (because for obvious ethical reasons studies on humans are not feasible) and are not as reliable as human studies, he had no reason to believe that the scientific observations would be drastically different in humans.
115. His conclusion is that:
“In gist, in my opinion, assuming the Words as defined in the [Statement of Claim] had been published in the manner as suggested by GoGo, it is highly likely, or at least more likely than not, that that had materially or significantly contributed to GoGo’s miscarriage, though I am unable to put an exact percentage figure on the degree of materiality or significance.” (original emphasis)
116. Jade elected not to adduce expert medical evidence but counsel for Jade subject Dr Wong to extensive cross-examination. Other than suggesting that studies based on animals could not be reliably applied to humans, and the controversy as to whether stress could be causative of miscarriage, counsel emphasised three points.
117. First, counsel suggested that Dr Wong had no expertise in assessing what GoGo told him about her emotional state at the time of the miscarriage was true. Dr Wong fairly accepted that as a medical professional, he had to base his opinion and diagnosis on the basis of what the patient told him and he did not have any professional training to assess whether what GoGo said was truthful. In fairness I do not attribute any shortcoming to Dr Wong. As I have noted in [106] above, this a problem arising from the framing of the issue. In any case, GoGo’s emotional or psychological state at the material time is a question of fact for the Court, and not something that Dr Wong could assist me on.
118. Secondly, it was pointed out that for miscarriage that occurs during the first trimester, as was the case here, the most common reason is problems related to the foetus’ chromosomes, and that obviously it was no longer possible to ascertain in 2023 (when Dr Wong examined GoGo) whether that was the case in July 2020. Dr Wong agrees that miscarriage attributed to feotal chromosomes issues is the most frequent reason, statistically around 40%. That, however, does not negate stress or psychological reasons contributing to miscarriage. Mr Wong referred to his experience in Sydney, where he observed that stress and emotional state of mothers often negatively affected pregnancies, which was consistent with the research papers he cited in his report.
119. Thirdly, counsel suggested that GoGo was suffering from polycystic ovary syndrome (PCOS), as she herself told reporters in 2017, and that there is evidence to suggest that the condition may be linked to an increased risk of miscarriage. Mr Wong agrees that if GoGo had PCOS that might affect the miscarriage. But in his opinion GoGo did not suffer from the condition. He explains that from his experience (he wrote a book on PCOS in 2019) and the examination he conducted on GoGo, he does not think GoGo had PCOS. His examination of GoGo did not reveal any sign of PCOS, nor did any of her medical reports. The blood test results showed no hormonal abnormality, which would have been the case if GoGo had PCOS. Dr Wong explained that PCOS is a chronic disease, and its symptoms (such as increased ovarian follicles, and presence of androgens) would not go away. In his examination of GoGo in 2023, he found nothing indicative of PCOS.
120. Counsel also suggested to Dr Wong that he arrived at his conclusion by a process of elimination. In response, Dr Wong explains that he came to the conclusion he did on the basis of (a) his examination of GoGo which did not reveal any physical or gynaecological conditions which might affect her pregnancy, (b) the scientific studies supporting causal link between stress and miscarriage, and (c) his own experience in practice.
121. I have considered Dr Wong’s evidence most anxiously. I find his explanation convincing. I accept his opinion that the stress experienced by GoGo resulting from the publication of the Words materially contributed to her miscarriage.
Compensatory Damages: quantum
122. On the level of damages, Mr Lam on behalf of GoGo relied heavily on the seminal decision of Yuen J (as Yuen JA then was) in Chu Siu Kuk Yuen v Apple Daily Ltd [2002] 1 HKLRD 1, where her Ladyship held that a plaintiff in defamation could recover damages for mental and physical injury proved to flow naturally and directly from the defamation.
123. In that case, a female solicitor who was the sole practitioner of her law firm in Yuen Long which mainly did conveyancing work was falsely accused of absconding with $2 million of clients’ money in a front-page article of Apple Daily newspaper in October 1998. She suffered from psychological and physical symptoms and gave birth to her second child pre-term. The child stayed in intensive care unit for some time, and had to undergo a number of operations which added to the plaintiff’s anxiety and distress. The judge found that the plaintiff was suffering from moderate to severe depression which was aggravated by the pre-term delivery and the child’s condition. The libel was a most serious attack against the integrity and honesty of a solicitor; it was also published on the front page of a newspaper with a wide circulation of over 415,000 copies. Although the newspaper published an apology the following day, it did not explain why the plaintiff was named in the article. The judge awarded the plaintiff $3 million general damages “to console the plaintiff for the hurt and distress suffered by her, to repair the harm that has been done to her reputation (including her business reputation) and to vindicate her reputation”.
124. Mr Lam further submitted that taking into account inflation since December 2001,[19] the “bare minimum” in this case should be $4.68 million.
125. With respect, I agree with and accept the principle decided in Chu Siu Kuk Yuen. However, the facts of that case are very different from the instant case. The plaintiff in that case was a solicitor, and the attack on her of embezzlement and abscondment was most serious to her reputation as a solicitor and to her firm’s business. The publication was on the front page of one of the most popular newspapers at the time and would have been read by a large section of the general public. The psychological and physical symptoms of depression suffered by the plaintiff in that case appear to be more serious in that case, but without expert advice I am not satisfied that I would be comparing like with like.
126. In the present case, I take into account the following factors:
(1) The libel was serious.
(2) The hurt, stress, distress and anxiety that GoGo suffered as a result of the publication of the libel, including the trauma from the miscarriage.
(3) At the same time, there is no evidence to suggest that it has caused GoGo any significant harm in terms of her business reputation or her reputation as an artiste.
(4) The FB Post was posted on Jade’s “private” account rather than a public account and at the time there were only less than 20 people who could assess the post. Although Jade could and should have foreseen that the FB Post would be republished, as in fact happened, and therefore must be responsible for the republication of the libel in the 2nd to 5th Words, she did not procure or authorise the publication of the subsequent publications.
(5) The articles containing the 1st to 5th Words do not appear to be “main page” or headline articles. I have seen no evidence as to the “hit rate” of the articles, but I think it can be reasonably assumed that a sizable number of the public had read at least some of the articles containing the 1st to 4th Words.
(6) Jade’s failure to respond to the letter of GoGo’s solicitors on 15 July 2020 and retract the libel at the first opportunity to do so. Also, she has steadfastly failed to acknowledge the libel or apologise to GoGo.
(7) Moreover, Jade persisted in the unsustainable defences in the action, and did not admit many facts which are ultimately not disputed but which would have aggravated the hurt and distress GoGo had to go through.[20] I am not satisfied that Jade was actuated by malice, but these are nevertheless aggravating factors.
(8) Although the trial was handled sensibly by Jade’s counsel, the trauma of having to recount that unhappy chapter of her life in public, with some aspects of delicate personal details presented publicly in court, must have added considerably to the hurt, distress and anxiety to GoGo.
(9) There are no mitigating factors.
127. In my judgment, to vindicate GoGo’s reputation, to compensate and console her for the hurt and distress suffered by her, including the distress from the miscarriage, $3,000,000 would be the appropriate amount of general damages.
128. I would allow the claim for special damages. For alternative accommodation, there is no evidence of the length GoGo stayed in the serviced apartment but there is a receipt confirming that $112,000 was paid for the first month’s rent and one month’s deposit, which I accept. Receipts for medical fees totalling HK$15,980 have been produced and I accept that amount. Total special damages are $127,980.
Apology
129. One of the interesting features of this case is that both sides seek an order for an apology from the other.
130. Two questions arise: first, what is the jurisdictional basis for the Court to make an order against an unwilling defendant to publish an apology; and secondly, the circumstances in which such jurisdiction should be exercised. Related consequential questions such as the terms and format of publication may also arise.
131. Whether a Court in defamation cases can or should order an apology from an unwilling defendant is controversial. However, given that both sides ask for an apology, neither side takes any issue on jurisdiction.
132. In the Plaintiff’s written Opening Submissions, reference is made to Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189, a decision of HHJ Kent Yee, where the learned District Court Judge reviewed a number of recent cases in other jurisdictions which had considered the question of apology.[21] The Judge accepted that he had “general equitable jurisdiction” under s.52B of the District Court Ordinance, Cap. 336,[22] to order an apology, but declined to do so in the circumstances of that case. However, it is pertinent to point out that in that case, as the judge observed, there was “no debate about the jurisdiction”: [143]-[145].[23]
133. Counsel for GoGo also referred toa number of cases from other jurisdictions, including: Dikoko v Mokhatla (6) SA 235 (Constitutional Court of South Africa); Proprietor of Ashdown House School v JKL & MNP [2019] UKUT 259 (AAC) a decision of the UK Upper Tribunal; Ottawa-Carleton District School Board, JW & MN v Jane Scharf [2007] OJ No 3030 (Ontario Superior Court of Justice); Ongwen v Omollo [2034] KECA 1444 (KLR) (Kenya Court of Appeal), and Suleman v Ashoms (27341/2021) [2024] ZAGPJHC 696 (High Court of South Africa). In addition, Counsel also referred to a number of academic articles, including: David Shuman, “The Role of Apology in Tort Law” (2000) 83 Judicature 180; Brent T White, “Say You’re Sorry: Court-Ordered Apologies as a Civil Rights Remedy” (2006) 91 Cornell Law Review 1261 in the context of court-ordered apologies for civil rights claims in the USA; Gijs van Dijck, “The Ordered Apology” (2017) 3 Oxford Journal of Legal Studies 562.
134. I am grateful to counsel for their industry, but when I asked counsel for assistance on the proper understanding of these judicial decisions and academic writing, and whether the principles and arguments canvassed in these authorities are applicable in the Hong Kong context, neither of them responded to the call. I decline to embark on that journey without proper assistance.
135. There is no doubt that the jurisdiction under s.21L of the High Court Ordinance, Cap 4 (the equivalence of District Court Ordinance s.52B), is “very broad”. However, I have reservations as to whether a Court-ordered apology could properly be considered an “injunction”. It has been said that an apology is a form of mandatory injunction, and the Court undoubtedly could made an order requiring a party to carry out a positive act. But an apology may not be the same thing. At the risk of over-simplification, generally speaking mandatory injunctions require the defendant to take positive action to undo the damage or harm he has unlawfully inflicted on the plaintiff so as to restore the status quo ante as far as possible, or compel the defendant to carry out an act which he is legally obliged but have failed to do. An apology may be fundamentally different from those categories of cases.
136. As to the question when the Court should exercise that jurisdiction, the judge in Chow Wing Kai considered Ma Bik Yung v Ko Chun (2006) 9 HKCFAR 888, a case on the scope of s.72(4)(b) of the Disability Discrimination Ordinance, Cap 486, and came to the conclusion that the discretion of the Court should only be exercised in “exceptional circumstances”. While I find the analysis of the learned judge helpful, I have received no submission as to whether Ma Bik Yung, which concerns the specific statutory power in the “novel area” of anti-discrimination law, applies to defamation without qualification: see, for example, the discussion of general points on remedies under that Ordinance in Ma Bik Yung [30]-[32], which may, or may not, apply in the present context.
137. Also, for mandatory injunctions, generally it would be reasonably certain what the defendant has to do, otherwise an injunction would be inappropriate in the first place. In contrast, it is not easy to work out how to determine the terms of the apology, when ex hypothesi the defendant is unwilling to provide one. Where the parties cannot agree on the terms, is the Court going to decide (ie. dictate) the terms, and how should the Court proceed to do so? Would the procedure discussed in Ma Bik Yung [37]-[39] be applicable, and what (if any) modification may be appropriate? Would an ordered apology impose on the defendant in those circumstances serve to escalate rather than deflate the animosity and bad feelings between the parties?
138. And what if the defendant is recalcitrant? Presumably a Court-ordered apology carries with it the potential sanction of contempt of court: Ma Sik Yung at [41]. Is it something that the Court should nevertheless impose on the unwilling defendant, and in what circumstances should the Court exercise that coercive power?
139. It seems to me that these questions (and there may well be others) have to be properly addressed before the Court accepts that it has, and should exercise, the jurisdiction to order an apology from an unwilling defendant. Nevertheless, when I raised these questions with counsel, neither of them offered any helpful assistance.
140. Moreover, and in any case, even if the Court has jurisdiction to make an apology order, it must be right that the discretion should only be exercised in exceptional circumstances. In that connection, neither side has made any submissions as to why an apology is appropriate in this case. For example, counsel for GoGo referred to her witness statement in which she described the distress, physical damage, depression and emotional pain caused by the publication of the libel and the miscarriage. Her evidence in this respect is not challenged, and I accept that evidence, but I have not received any evidence or assistance as to how an apology, especially an insincere apology from an unwilling defendant, might help her in the circumstances of this case.
141. In conclusion, I am not inclined to order an apology even if the Court has power to do so.
Disposal
142. For the reasons given above, GoGo’s claim succeeds and I order that general damages of HK$3,000,000 and special damages of $127,980 be awarded. Jade’s counterclaim is dismissed.
143. Interest will be payable on special damages, at the usual rate of 2% above HSBC’s prime rate over the relevant period.
144. The parties are agreed that costs should follow the event, to be taxed if not agreed. I so order.
Postscript
145. The trial of this action was set down for 10 days; in the end it took 9 hearing days. Ten files of documents were placed before the Court yet as is often the case most of them were not referred to. It seems obvious to me that once the pleaded issues are properly identified, and the evidence limited to what is strictly relevant to the core issues, the trial could have taken a much shorter time with considerable savings in terms of costs and the court’s resources.
146. More importantly, given that libel trials are often emotionally charged, the trial process ought to be kept as short and focused as possible so as to minimise the inevitable hurt, aggravation, re-opening of old wounds and ill feelings between the antagonists. I would hope that in future, legal representatives would take their duties more seriously in assisting the Court in rigorous case management of this type of cases. [24]
147. In particular, legal representatives should make a realistic assessment whether a ruling on meaning should be sought once the trial is set down before a judge without a jury. Since no evidence is admissible in determining natural and ordinary meaning, the determination could take place relatively quickly. This could be done by way of a preliminary issue under RHC O.33 r.3 or r.4(2).
148. In the current edition of Hong Kong Civil Procedure 2026, para 33/3/1, one finds this note:
“In a libel action, the question whether the words complained of were capable of bearing a particular meaning was suitable for trial as a preliminary issue and the jurisdiction to do so should be exercised where it was apparent that it would save costs and avoid delay: Keays v Murdoch Magazines UK [1991] 1 WLR 1184 (CA).”
149. That commentary, and the case of Keays v Murdoch Magazines, would be applicable to libel trials with juries.[25] In the Hong Kong context, since the increase of the District Court’s jurisdiction in civil matters to $3 million, most defamation cases would be brought in that Court. Even in the Court of First Instance, it has become normal for libel cases to be heard before a judge sitting without a jury. In those cases, an early determination of meaning would likely to be of utility.[26]
150. Take this case as an example, if a ruling on meaning had been sought and the meaning is determined in favour of the plaintiff, the parties would have been able to take a realistic view on what positive defences could be relied upon, limit discovery accordingly and present only the evidence relevant to those issues. I cannot help but think that had that course be taken, a lot of time and costs would have been saved in this case, and the pain and distress inevitably flowing from a public trial involving sensitive personal matters could have been considerably limited.
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(Jat Sew-tong SC) |
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Deputy High Court Judge |
Mr Kenneth K.Y. Lam, Mr Vincent Shum and Mr Aarif Chan instructed by Alex To & Co. Solicitors, for the plaintiff
Ms Cindy Kong, instructed by Howse Williams, for the defendant
[1] Ms Cindy Kong.
[2] Mr Poon Senior passed away after the events that led to this litigation and the House has since been sold.
[3] Statement of Claim, paragraph 5.
[4] Statement of Claim, paragraphs 5.1 to 5.5. They are not in chronological order.
[5] Mr Kenneth K Y Lam, together with Mr Vincent Shum and Mr Aarif Chan.
[6] Statement of Claim, paragraph 12.
[7] Defence and Counterclaim, paragraph 23.
[8] Defence and Counterclaim, paragraph 11.
[9] Defence and Counterclaim, paragraph 28 pleads an alternative case of justification based on other meanings of the 1st Words. This plea was not relied on at trial.
[10] Defence and Counterclaim, paragraph 21.
[11] Defence and Counterclaim, paragraph 10.
[12] Defence and Counterclaim, paragraph 57.
[13] Defence and Counterclaim, paragraph 62.
[14] Defence and Counterclaim, paragraph 67.
[15] Defence and Counterclaim, paragraph 72. Meaning (a) is disputed.
[16] Defence and Counterclaim, paragraph 68(g).
[17] Except Defence to Counterclaim, paragraph 72(a).
[18] Reply and Defence to Counterclaim, paragraph 23.
[19] On the basis of Fung Suen Sim v Liu Chun Pong (unreported, HCPI 896/2007, 23 December 2011, §28).
[20] Such as the fact that GoGo and Michael did hold a wedding banquet and did live together as husband and wife.
[21] Including Credit Guarantee Corp Malaysia Bhd v SSN Medical Products Sdn Bhd [2017] 2 MLJ 629 (Malaysian Court of Appeal); TV3 Network Ltd v Everyday New Zealand Ltd [1993] 3 NZLR 435 (New Zealand Court of Appeal); Summertime Holdings Pty Ltd v Environmental Defendant’s Office Ltd (1998) 45 NSWLR 291 (Young J).
[22] District Court Ordinance, Cap. 336, s.52B relevantly provides: “(1) The Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in any action or proceedings in the Court and within its jurisdiction in which the Court considers it just or convenient so to do. (2) The order may be made either unconditionally or on the terms and conditions the Court thinks just.” There is no material difference between that section and High Court Ordinance, Cap. 4, s.21L: “(1) The Court of First Instance may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the Court of First Instance to be just or convenient to do so. (2) Any such order may be made either unconditionally or on such terms and conditions as the Court thinks just.”
[23] Gatley on Libel & Slander, 13th ed. (2022) at para. 10-048 cites Chow Wing Kai for this proposition: “In Hong Kong, meanwhile, it has recently been held that a judge hearing a defamation trial has a general equitable jurisdiction to compel an unwilling defendant to apologise to the plaintiff, though exceptional reasons should have to be shown before the power was exercised.” That statement should be treated with caution.
[24] RHC O.1A r.3: “The parties to any proceedings and their legal representatives shall assist the Court to further the underlying objectives of these rules.”
[25] In Hong Kong, see Peregrine Investments Holdings Ltd v Associated Press [1997] HKLRD 1073, Stone J.
[26] See Gatley on Libel and Slander, (13th ed, 2022) para. 32-002 for a discussion of the position in the UK. According to that work, determination of meaning has become the norm since the enactment of the Defamation Act 2013 which abolished the right to trial by jury.
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