CHEUNG SZE NGA v. IP PUI YI

DCCJ5448/2017

[2019] HKDC 906

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5448 OF 2017

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ASSESSMENT OF DAMAGES

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Introduction

1.  By an interlocutory judgment dated 14 March 2018, judgment was entered in default of notice of intention to defend against the defendant to pay the plaintiff damages to be assessed.

2.  On 19 March 2019, Master Simon Ho ordered substituted service of the said order, the notice of adjourned appointment for assessment of damage; the directions of Master Simon Ho dated 8 January 2019; the order of Master Simon Ho dated 21 November 2018 and the order of Registrar Ho dated 18 October 2018 on the defendant.

3.  On 20 March 2019, Master Simon Ho ordered substituted service of the said order and the plaintiff’s supplemental witness statement filed on 19 December 2018 on the defendant.

4.  By the 2^nd affirmation of Tse Lai Nam filed herein on 25 April 2019 and the 2^nd affirmation of Ng Gene Bond filed herein on 28 May 2019, the plaintiff’s solicitors confirmed compliance of the said orders of substituted service.

The claim

5.  The plaintiff’s claim is for damages arising from 6 defamatory statements against her published by the defendant in the defendant’s Instagram account between 12 October 2017 and 21 November 2017.

6.  The plaintiff says that those statements have the following defamatory meanings:-

(a)   she is a “legendary” person in the sense of being notorious;

(b)   she has undergone plastic surgery;

(c)   she is a woman who has been divorced twice and does not    take relationship, marriage and/or chastity seriously;

(d)   she is a person who intervenes into others’ private life, no matter male or female;

(e)   she is a person who harass or persecute the defendant with unwanted and obsessive attention; and

(f)   she is laughing stock exposed to public contempt and      ridicule.

Legal principles

7.  The award of general damage in libel is compensatory in nature.  Such sum must compensate the successful plaintiff for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused: see Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 at para 35, quoting the speech of Sir Thomas Bingham in John v MGN Ltd [1997] QB 586, 607.

8.  Further, the following factors listed by Hirst LJ in Jones v Pollard, [1997] EMLR 233, 243 are relevant consideration:-

(1)  The objective features of the libel itself, such as its gravity, its prominence, the circulation of the medium in which it was published, and any repetition;

(2)  The subjective effect on the plaintiff’s feelings (usually   categorized as aggravating features) not only from the      publication itself, but also from the defendant’s conduct thereafter both up to and including the trial itself;

(3)  Matters tending to mitigate damages, such as the publication of an apology;

(4)  Matters tending to reduce damages, eg evidence of the    plaintiff’s bad reputation, or evidence given at the trial   which the jury are entitled to take into account …;

(5)   Special damages;

(6)  Vindication of the plaintiff’s reputation past and future.

See Oriental Daily Publisher Ltd (supra) at para 40

9.  Ribeiro PJ added at para 41 that:-

“defamatory accusations originating from someone whose credibility is doubted is likely, as a matter of commonsense, to do less harm to the plaintiff’s reputation, cause less distress and require less to vindicate his reputation, than the same accusations originating from an authoritative and credible source.”

The defamatory statements

10.  In the pleaded case of the plaintiff, the following statements are complained of:-

Date of post	Statement	Reference
12/10/2017	“...不過可唔可以唔好八卦埋我身邊人嘅事呢個行為真係好變態...”	Statement 1
14/10/2017	“人嘅臉皮究竟可以有幾厚？畀人鬧完可以當睇唔到繼續睇架喎叻女”	Statement 2
2/11/2017	“最可怕係呢個搶人男友的女子居然一直都有follow我instagram呢個世界真係好恐怖”	Statement 3
2/11/2017	“何等傳奇的一個女子25歲離過兩次婚仲要整容喂你好鍾意結婚咩你？ Stalk我生活都唔夠下一個目標就睇我身邊嘅男士俾人block晒之後而後就向我身邊女士入手做乜姐你你好悶咩？唔洗結婚拿？ [... ...] @asa.tareas 咁玩法係有d癲但係我怕你睇唔到喔 呢個方法可以保證你睇到 亲 你要加油唄謝謝你為我生活加添一點笑聲”	Statement 4
4/11/2017	“俾人踢爆離過婚整過容就話要報警拉我喂喂你告我乜嘢？ [... ...] That’s why 我有咁多朋友話返俾我知呢d咁有趣嘅事實囉 醜事傳千里我勸你都係對身邊d人好d啦 否則好快又傳遍成個國泰 個d垃圾我玩厭左啦送俾你慢慢玩 Ush 加油喔！”	Statement 5
21/11/2017	“阿hei個新女友真係好變態...我之前同你提過佢不斷搵我身邊旣人起佢哋底，我warn鬧佢，串佢離過2次婚（身邊有人同我講返），佢而家竟然搵人出律師信俾我告我”	Statement 6

Analysis

11.  According to the plaintiff, the Instagram account of the defendant, which was open to public, has 1,600 followers.

12.  Instagram is a photograph and video-sharing social networking service which allows users to upload photographs and videos for sharing.  An account’s posts can be shared publicly or with pre-approved followers.  Users can browse other users’ content by tags and locations.  If the Instagram account is open to public, the photographs and videos uploaded by the user can be viewed by the general public.

13.  Although the defendant’s Instagram was open to public, given the fact that she is not a public figure, I do not think the posts or stories uploaded by her would attract the attention of the general public.  By the same token, I tend to think that not all the followers of the defendant would view each and every post or story uploaded by her.

14.  The main themes of the defamatory statements are that the plaintiff has divorced twice^[1]; that the plaintiff has undergone plastic surgery^[2]; that the plaintiff has stolen away someone’s boyfriend^[3]; that the plaintiff was shameless^[4] and that the plaintiff was perverse^[5].

15.  The plaintiff has proved by a certificate issued by the Marriage Registry dated 8 October 2018 that she has never been married.

16.  I have no doubt that the plaintiff was hurt by those defamatory statements particularly when she was repeatedly accused that she had been divorced twice.  By reason thereof, she has received 3 sessions of counselling.

17.  The plaintiff has, by way of a solicitors’ letter before action, demanded the defendant to tender an apology.  The demand, however, was not responded to positively by the defendant.

18.  In Lo Sam Shing v Li Fong, HCA 1803/2011, 14/3/2014, unreported, the plaintiff was a District Councillor and village representative.  The defamatory letter was sent to 25 people who were politicians, village representatives, chairmen or committee members of rural committees and fishermen representatives.  The learned judge made an award of $200,000 on general damage.

19.  In Chim Pui Chung v Apple Daily Limited and others, HCA 1286/2014, 3/2/2017, unreported, a defamatory article was published in a newspaper which had a circulation of 170,000 copies per day and the article in the internet edition had a view-rate of slightly more than 6,000.  An award of $100,000 was made.

20.  In Li Kam Fung v Fong Tsz Kit [2018] HKDC 1252, the defendant was found to have defamed the plaintiff by an e-mail and a letter sent to the plaintiff’s commercial sponsor and also by statements published on a web-site maintained by the defendant.  Bearing in mind that the letter was only addressed to one person and the number of people having visited the web-site is not known, the learned judged awarded damage in the sum of $90,000.

21.  In Choi Yeut Wing v Tang Sai Cheong [2014] 5 HKLRD 260, the defendant sent an defamatory e-mail to 3 people who were incoming managers of a tso t’ong, I made an award of $2,000.

22.  Taking into account the gravity of the libel, the extent of the publication, the injury to the plaintiff’s feeling and the lack of apology by the defendant, I am of the view that an award of $60,000 is appropriate.

Conclusion and order

23.  For the foregoing reasons, I make an award of $60,000 in favour of the plaintiff with interest at judgment rate from the date of the writ to the date of payment.

Costs

24.  Costs should follow the event.  I make an order nisi that the defendant shall pay the plaintiff the costs of the assessment with certificate for counsel, to be taxed if not agreed.

25.  In the absence of any application for variation by summons within 14 days from the date hereof, the order nisi shall become absolute.