YIU SHING YIN v. KWOK YIK HO AND ANOTHER

DCCJ 4437 / 2016

[2018] HKDC 514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4437 OF 2016

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REASONS FOR JUDGMENT

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Introduction

1.  This is a libel action arising out of some Chinese words (“the Words”) jointly published by the 1^st Defendant (“Mr Kwok”) and the 2^nd Defendant (“Mrs Kwok”) on a glass window at Shop 80 (“the Shop”), 1^st Floor, Fu Tor Loy Sun Chuen Stage 2 (富多來新邨第二期) (“the Estate”), Tai Kok Tsui, Kowloon, Hong Kong.

2.  The publication of the Words and the fact that the Words were prima facie defamatory of the Plaintiff (“Mr Yiu”) had been admitted by the Defendants (“Mr and Mrs Kwok”).

3.  The main issues in dispute were: -

   (1)  Whether the Words were substantially true (“Issue 1”);

   (2)  Whether the publication was on an occasion of qualified privilege and not too wide (“Issue 2”); and

   (3)  Whether the publication was with the consent of Mr Yiu (“Issue 3”).

   (Collectively, “the Issues in Dispute”)

4.  The trial took 3 days.  The only witnesses were the parties.

5.  At the end of the last day, I resolved the Issues in Dispute in favour of Mr and Mrs Kwok, dismissed the action, ordered Mr Yiu to pay all costs of the action, including all costs reserved, to Mr and Mrs Kwok, to be taxed if not agreed, with Certificate for Counsel (“the Judgment”), and indicated I would be handing down my full reasons for the Judgment in writing, which I hereby do.

Factual Background

6.  The Estate had 682 units (residential plus commercial).  It had an incorporated owners (“the IO”) but no management company.

7.  Mr Yiu was an owner in the Estate and thus a member of the IO.  He was once employed by the IO direct, on a monthly salary of HKD 12,000, for the position of “clerk” (文書).  The role of Mr Yiu was akin to that of a management company.  He did not have any other job.

8.  Mr and Mrs Kwok were also owners in the Estate.  They were thus members of the IO as well.  They owned the Shop, from which they operated an aluminium window business called “Ho Wah Aluminium Co (豪華鋁窗公司)” (“the Business”).  They had been married to each other for 30 years.

The Evidence of Mr Yiu

9.  Mr Yiu gave evidence first.  I observed his demeanour, looked at the contemporaneous documents, and considered the probabilities of his evidence.  I found Mr Yiu to be an evasive dishonest liar whose evidence, in so far as it was self-serving, was wholly unreliable, plainly ludicrous in certain parts, and rejected by me as false.

10.  The following are some examples of how “plainly ludicrous” certain parts of Mr Yiu’s evidence really were: -

   (1)  Mr Yiu alleged under cross-examination by Mr Damian Wong, Counsel for Mr and Mrs Kwok, that he intended to attend the IO’s Annual General Meeting on 8^th May 2015 (“the AGM”) in person, but also authorized and paid 2 persons to vote as his proxies at the AGM, as he needed “assistants”.  That made no sense whatsoever since each unit in the Estate should only have one vote (with the weight of that vote being determined by the unit’s undivided shares in the Estate) and voting would just be a matter of putting a tick on a piece of paper with a pen and then inserting that piece of paper into a ballot box.  It would not take 3 persons to do so.

   (2)  Mr Yiu further alleged the words “食屎、呃錢、屎忽鬼” [English translation: “Eats Shit, Cheating People’s Money, Arsehole”] written on a promotional sign of the Business [B/17] could be part of the original format (格式) of that sign, as opposed to the result of criminal acts of vandalism.  In my judgment, it was highly unlikely that an aluminium window business would choose to include such derogatory, offensive and insulting words as part of the format of its own promotional sign.

   (3)  Mr Yiu suggested to Mr Damian Wong, Counsel for Mr and Mrs Kwok, that he should ask Mrs Kwok to speak in Punti, as Mrs Kwok’s Punti was incomprehensible to him and for that reason he never managed to understand what Mrs Kwok had said to him.  However, when Mrs Kwok gave oral evidence, it was crystal clear she spoke perfect Punti.  Mrs Kwok could and did express herself in Punti perfectly well, directly contrary to what Mr Yiu alleged.

11.  Mr Enzo Chow, Counsel for Mr Yiu, sensibly conceded in his oral closing that Mr Yiu’s evidence on the proxy forms, as summarized in paragraph 10(1) above, was “a bit ridiculous” and “a bit unbelievable”.

12.  Mr Yiu alleged the Words were false. The Words were: -

“自2015年6月19日，富多來新邨第二期業主立案法團，由姚盛賢先生當主席後，(他是利用假的授權書當選的，當時前管委會主席龔文輝先生已報警)… ”

“到2015年4月至5月期間，姚盛賢到處揚言，他一定要當富多來立案法團主席(第十一屆)當時因為我們不支持他，他就叫夜班的管理員破壞本舖的招牌及棄掉了超過五十多個。(到姚生當了法團主席後，他繼續針對性的破壞本舖的招牌)…”

13.  Mr Yiu denied he consented to the Words being published by Mr and Mrs Kwok.

The Evidence of Mrs Kwok

14.  Mrs Kwok gave evidence next.  I observed her demeanour, looked at the contemporaneous documents and considered the probabilities of her evidence.  I found Mrs Kwok to be an honest and reliable witness who gave her evidence in a frank, candid and natural manner to the best of her ability.  She struck me as a simple, sincere and humble lady.  I accepted her evidence as entirely true.

15.  Mrs Kwok said, and I accepted (more on that below), that the Words were substantially true in that (1) some of the proxy forms used in the election of Mr Yiu as Chairman of the IO were false or forged; and (2) it was indeed Mr Yiu who instructed a person nick-named Fat Ball (肥波) to vandalize the signs of the Business.  Mrs Kwok also said, and I accepted (more on that below), that she and Mr Kwok published the Words with Mr Yiu’s oral consent.

The Evidence of Mr Kwok

16.  Mr Kwok gave evidence last.  I also observed his demeanour, looked at the contemporaneous documents and considered the probabilities of his evidence.  I found Mr Kwok to be an honest and reliable witness who gave his evidence in a frank, candid and natural manner to the best of his ability, just like Mrs Kwok.  He struck me as a simple, sincere and humble man.  I accepted his evidence as entirely true.

17.  The evidence of Mr Kwok was similar to that of Mrs Kwok, which was not surprising as in my judgment they were both telling the truth.  I did ask Mr Kwok additional clarification questions, which he answered.  They related to Issue 3 (i.e. the question of consent).  I shall deal with those below, when I deal with the Issues in Dispute one by one.

Issue 1 – Justification

18.  Justification (i.e. truth) is a complete defence to an allegation of defamation.  In my judgment, justification had been established by Mr and Mrs Kwok.  In this part of the Reasons for Judgment, I shall explain my reasons for so holding.

19.  I must start by determining what the Words meant.

20.  In paragraphs 4 & 7 of Mr Yiu’s Statement of Claim filed on 5^th September 2016 (“the SoC”), Mr Yiu alleged the Words meant: -

(1)  Mr Yiu was unlawfully elected; elected by means of producing/using forged document(s); suspected to be involved in a criminal offence of forgery; and dishonest (“1^st Meaning”); and

(2)  Mr Yiu had criminally damaged the sign board(s) of the Shop and of other shops and/or had caused his agent to do so; and was suspected to be involved in a criminal offence of criminal damage (“2^nd Meaning”).

(Collectively, “the Pleaded Meanings”)

21.  Mr and Mrs Kwok originally denied the Pleaded Meanings in paragraphs 18 & 22 of their Defence filed on 16^th November 2016 (“the Defence”), but in paragraph 2 of their Counsel’s written opening the denial was effectively abandoned.  Mr and Mrs Kwok never pleaded any positive or alternative case on meanings.  In the absence of an effective challenge, and having read the Words, I was satisfied the Words conveyed the Pleaded Meanings to hypothetical reasonable readers.

22.  Starting with the 1^st Meaning, I was satisfied on the evidence that Mr Yiu was indeed dishonest, unlawfully elected by means of forged proxies, and suspected of being involved in the crime of forgery.

23.  The proxy forms [B/67 to 81] spoke for themselves.  As I had briefly mentioned in paragraph 10(1) above, Mr Yiu accepted that 2 of the proxy forms (importantly, for the exact same unit of the Estate) produced at the trial [B/75 & 76] were signed and procured by him.  The first of these [B/75] was fine, as it was genuine in the sense that it purported to be signed by Mr Yiu and was in fact signed by Mr Yiu.  The second of these [B/76], however, was plainly a dishonestly forged document, as it purported to be signed by Mr Yiu’s mother (the form being in her name) but was in fact signed by Mr Yiu.  Of course, under cross-examination, Mr Yiu alleged his signature on his mother’s proxy form was authorized by his mother, but his mother never gave evidence.  I drew the inference that the evidence of Mr Yiu’s mother would not have helped Mr Yiu at all, and I rejected Mr Yiu’s explanation as false.  I further rejected Mr Yiu’s allegation that he created these forms for the purpose of getting “assistants” to help him at the AGM.  This allegation of Mr Yiu was plainly nonsensical, for the reasons set out in paragraph 10(1) above.  In my judgment, the substantially more likely scenario was that Mr Yiu dishonestly forged the proxy form at [B/76] with the intention of using it to get additional votes at the AGM, and thereby get himself elected as Chairman of the IO.  On the evidence adduced, I found this to be what happened.

24.  Mr Enzo Chow, Counsel for Mr Yiu, correctly pointed out at his oral closing that there was no evidence Mr Yiu had been given 2 votes at the actual voting.  That was a wholly accurate but irrelevant observation.  A forgery which did not create the desired result would be just as bad as a forgery which did.  The parties are in agreement that even if the 1^st Meaning was only “substantially true” but not literally and entirely true, the defence of justification would still succeed.

25.  Further, the evidence did not stop at just those two proxies at [B/75 & 76].  In paragraph 25 of the written closing lodged by Mr Damian Wong, Counsel for Mr and Mrs Kwok, Mr Wong helpfully set out in table format those proxies for the AGM which were plainly fake or forged in the sense of not being signed by the registered owners in question.  I accepted that table (“the Table of Fake Proxies”) as accurate and I set out the same here: -

Unit	Name on Proxy	Problem
Shop 10B, G/F [B/67]	岑偉雄	Not an owner
Shop 82, G/F [B/68-1]	Chan Kwan Yee	There was another proxy signed by the same owner [B/68-2]
Shop 92, G/F [B/69]	Lok Choeng Ming	The owner’s name misspelled
Shop 8, 1/F [B/79]	Lam Sui Ha	There was another proxy signed by the same owner [B/71]
Shops 28 and 29, 1/F [B/72]	Tin Worth Co. Ltd	No company chop
Shop 63, 1/F [B/73]	Fung Chiu Tung	Died in March 2015
Shop 70, 1/F [B/74]	陳銘智	Not the owner
Fu Wong 15H [B/77]	Kwok Chap Yee	Not the owner
Fu Sun 10E [B/79]	Chan Chi Ming	Not the owner
Fu Sun 10G [B/80]	呂志明	There was another proxy signed by the same owner [B/81]

26.  Mr Yiu had been properly cross-examined on the matters set out in the Table of Fake Proxies.  Mr Yiu was fully aware of the allegations made against him and was given a full opportunity to explain.  It would be unnecessary to set out all questions and answers but one example would be helpful.

27.  For the proxy at [B/73], purportedly signed by a person who was dead at the time of signature, and purportedly appointing Mr Yiu as a dead person’s proxy, the following exchange took place during the cross-examination of Mr Yiu by Counsel for Mr and Mrs Kwok: -

問：好呀。73頁，係咪你嗰啲字呀，呢幾--呢幾張？

答：唔係。

問：又唔係。咁一個馮先生嘅，馮朝棟（譯音）先生，個日子就5月5號嘅，但係馮先生就喺15年3月4號已經過咗身㗎喇，你知唔知呀？馮生過身，你識唔識呀？知唔知呢件事呀？

答：唔知。

28.  As one can see, Mr Yiu not only denied knowledge of the fake proxy, he denied knowledge of the fact that the registered owner had passed away before the date of his purported signature (thus making it impossible for the signature to be genuine).

29.  However, towards the end of the very same day, when I asked Mr Yiu clarification questions myself, Mr Yiu said something completely different in relation to this, as follows: -

官：咁跟住你重複講過好多次，就話你呢一啲咁樣樣嘅委任代表文書喇，就...

答：係呀。

官：...一定係真嘅，因為你話...

答：係呀，係呀。

官：...有警察拍門去...

答：係呀，係呀。

官：...去--去...

答：去求證喇。

官：求證，係喇。

答：係。

官：咁警察求證嘅時候，你自己在唔在場㗎？

答：我冇得在場吖。

官：係，因為你喺旺角差館？

答：唔係，佢唔係一--一日去求證吖，佢要求證好多日呀，成個月咁樣查喇。

官：警察用咗--據你嘅理解，警察用咗一個月去查？

答：係喇，係喇，係呀，係呀，即係逐家...

官：咁係...

答：逐家逐戶，逐張咁樣去問囉。

….

….

答：嗰陣時啲差人喺個屋邨嗰度走嚟走去㗎嘛，係。

官：即係據你嘅理解，警察...

答：係。

官：...由5月8號就查到6月16號喇，...

答：係呀，係呀。

官：...拍門式咁樣查嘅？

答：係呀，係呀。

官：咁我呢度有一個奇怪嘅疑問就係，即係根據被告人嘅講法有個人死咗，咁死咗嗰個點樣？

答：死咗，佢有個仔响度呀。

官：係，咁但係據你嘅理解，就係...

答：佢嗰個係獨生子嚟喇，佢認為嗰--嗰兩個舖頭都係佢個囉，即係嗰啲遺產係佢個囉。

官：哦，即係據你嘅理解呢，就係死--嗰個警察都有拍門，咁當然唔係死嗰個人應門喇，即係佢過咗身喇，咁但係個仔就應門咁樣？

答：係喇，佢成個商場--係喇，係喇，搵晒，係呀，係呀，佢個仔喺嗰度開網吧㗎嘛，喺嗰間舖頭嗰度開網吧。

官：係，嘅後人喇。

答：後人喇，係呀，係呀。

官：後人就...

答：佢嘅後人係其中一間舖頭嘅業主囉。

官：後人就應門。

答：係呀。

官：咁據你嘅理解，警察覺得後人代呢個先人係去投票就冇問題咁樣？

答：係呀，係呀，係呀，我認為可能係喇。

官：咁或者再問清楚少少，起碼警察就冇同你講話，佢哋覺得後人代先人投票有問題先？

答：係呀，冇，佢唔會同我講任何嘢，係。

30.  As can be seen from the above, what Mr Yiu said when I asked him clarification questions was different from what he had previously said under cross-examination.  He changed his evidence to say he knew about the death of the owner, he knew the deceased had a single son who operated an Internet Café in the Estate, and he knew that was why (according to him) the police thought the proxy at [B/73] was fine.  None of these came up when he was cross-examined on the exact same subject just earlier that day.  In my judgment, coupled with the way in which Mr Yiu gave his answers in the witness box, this showed Mr Yiu was dishonest and unreliable.  I did not accept Mr Yiu’s explanations.

31.  All in all, on the evidence adduced, I was more than satisfied the proxy at [B/73], purportedly signed by a person who was dead at the time of signature, was a forged document. Since Mr Yiu appeared to be the only person who would benefit from the use of the document, and he did not offer any credible explanation as to why such a forged document existed, I drew the inference, on balance of probabilities, that Mr Yiu was involved in the creation or usage of this forged document.

32.  I was aware Mr Enzo Chow, Counsel for Mr Yiu, pointed out at paragraph 34(d) of his written closing that Mr Yiu was never prosecuted for forgery, or indeed any other criminal offences, in relation to the proxies.  That was a wholly accurate but irrelevant observation.  Mr and Mrs Kwok only had to prove that the 1^st Meaning was substantially true on balance of probabilities.  The mere fact that there was no criminal prosecution (where the standard of proof would be “beyond reasonable doubt”) was neither here nor there for the purposes of this civil action.

33.  Similarly, I was aware Mr Chow also pointed out at paragraph 42 of his written closing that Mr Yiu was never arrested by the police.  That was, likewise, an accurate but irrelevant observation. There could be many reasons why an arrest was never made.  More importantly, this Court was and remains wholly independent of the police.  Even if the police took the view that no crime had been committed by Mr Yiu, for the purposes of this civil action this Court could look at all the evidence independently and take a different view.  That was part of what it meant to have a truly independent judiciary in this territory.

34.  Indeed, Mr Chow’s reliance on the letter from the police dated 16^th September 2015 [A/71] (“the Police Letter”) in paragraph 40 of his written closing was likewise misguided. I thank Mr Chow for drawing my attention to it, but with respect it did not assist.

35.  First of all, the Police Letter did not in fact clear Mr Yiu of all wrongdoings.  It simply expressed the opinion of the police at the time that there was “currently (現時)” insufficient evidence to press charges.  The police said in the very next sentence that if they could in the future obtain further information showing someone was involved in a crime, they would reopen and review the matter.  The Police Letter was therefore more in the nature of a “status report”, which was subject to updates and revisions, as opposed to an indication of the final and conclusive conclusion on the guilt or innocence of any person.

36.  Secondly, even if the Police Letter stated a conclusion which was truly final (it did not), and the conclusion was something other than a record of conviction or admission, as a matter of law that conclusion could not be used directly in the manner contemplated by Mr Chow.

37.  In the well-known case of Secretary of Trade and Industry v Bairstow [2004] Ch 1 at 7 to 12 (paragraphs 15 to 27), Sir Andrew Morritt V-C of the English Court of Appeal made it clear that under common law rules, the findings of a judge in one set of proceedings were not admissible in a different set of proceedings, since the findings of a judge were just the opinions of that judge and, subject to certain exceptions, opinion evidence was generally inadmissible in English court proceedings.  Locally, in Bank of China v Ng Lai Fong (HCA 1117/2006, 30^th August 2013, paragraphs 11, 12, & 20), Recorder Pow SC applied the Bairstow ratio to findings set out in Hong Kong police letters and stated, correctly, that if litigants would like to rely on the opinions of 3^rd parties as stated in such letters, they must first apply for leave to adduce expert evidence in the normal way.  Opinion evidence which would otherwise be inadmissible in law would not become admissible just because it was set out in a police letter and unchallenged.

38.  In my judgment, these principles are trite and correct.  When properly applied to the Police Letter in this case, these principles prohibited Mr Chow from using the Police Letter in the manner contemplated by him, even if it would otherwise be helpful to Mr Yiu’s case.  No leave had ever been sought or granted for Mr Yiu to call the police officer in question as an expert, it was never established that the officer in question could be said to be an expert, and the opinion of that officer was not admissible.  Even if the opinion of that officer (who was never called as a witness of any kind, and was never cross-examined) was somehow admissible, as he had never explained the factual basis for his opinion, no weight would be given to his opinion.

39.  With all of the above as the factual background, the inference that Mr Yiu was unlawfully elected by means of forged documents and was suspected of being involved in the crime of forgery was irresistible when I looked at the record of what supposedly happened at the election.

40.  The AGM’s signed minutes was reproduced at [B/101] and it accurately recorded that at the beginning of the AGM, the Chairman of the IO at the time discovered “suspicious matters” when he made phone calls to verify the proxies lodged for the AGM, and had (together with a solicitor acting for the IO) reported the matter to the police.  The solicitor explained at the AGM that the IO found forged proxies, the police was investigating the matter, and that in his view the AGM should be adjourned.  The AGM eventually “went part-heard”, and the second part of the AGM took place on 16^th June 2015 (“Part II of the AGM”).  Mr and Mrs Kwok had given similar evidence, which I accepted as true, on these matters [A/99 to 102] [A/172 to 175].

41.  The signed minutes for Part II of the AGM was reproduced at [B/109], and it was curiously certified by Mr Yiu (as opposed to Mr Kung, the person who chaired Part II of the AGM) as accurate at [B/112].  It said, even more curiously, that Mr Yiu was supposedly elected as new Chairman of the IO with 23 votes, which purportedly translated into 2,692 undivided shares [B/111].

42.  The above was curious as it was literally impossible.  Mr Yiu had been fairly cross-examined on this and he was shown the distribution of undivided shares in the DMC for the Estate [B/97-1]. It was crystal clear from a cautious reading of the DMC that 23 votes could not translate into 2,692 shares.  It was a fair line of cross-examination since Mr Yiu certified himself as being elected as Chairman of the IO with 2,692 undivided shares [B/112].  Mr Yiu was unable to explain why he certified the impossible.

43.  Mr Yiu could not have been lawfully elected as Chairman of the IO by 2,692 shares, in the manner as he himself had falsely certified in the minutes reproduced at [B/109].  It was a mathematical impossibility.

44.  The matter did not end here.  One would have thought that Mr Yiu as the person who started this action, knowing that Mr and Mrs Kwok had pleaded (in the alternative) that the 1^st Meaning was substantially true [A/17] and were thus effectively accusing Mr Yiu of fraud, would be keen to give full discovery of all documents relating to the AGM and Part II of the AGM, including getting his hands on and then disclosing true copies of all proxies and voting papers actually used, doing the calculations as to the undivided shares involved, in order to prove the lawfulness of his purported election as Chairman of the IO, and his innocence generally.  However, Mr Yiu plainly did not give proper discovery of all relevant documents and did not provide this Court with credible reasons why this was so.

45.  The following exchange took place when I asked Mr Yiu why there were just 6 groups of documents in his List of Documents dated 21^st April 2017 (“Mr Yiu’s List of Documents”): -

官：好，另外一樣我想知嘅呢，就係根據法庭檔案嘅紀錄，你嘅事務律師就喺2017年4月21號中午12時正就代你就入咗份文件清單。

答：係。

官：咁份文件清單就冇你簽名嘅，唔係你自己做嘅，你律師幫你做嘅，因為你律師就簽咗名嘅。

答：唔。

官：咁喺呢份文件清單嗰度，你嘅律師就代你就係確認，就所有同呢件案件有關嘅文件就完全披露晒喇，冇漏㗎喇，咁樣，係。咁我見到就凈係披露咗六份或者六個類別嘅文件嘅啫，咁唔喺入面嘅，但係我讀畀你聽喇。

答：好，好。

官：你嘅律師如果覺得有需要，佢會畀一份畀你睇㗎喇。

答：唔。

官：第一份文件就係旺角警署就係畀立案法團嘅信喇。第二份文件，喺第二套文件就係小額嗰件案嘅申索書、諸如此類喇。第三，就係第一、第二被告喺小額嗰度嗰個答辯喇。第四，就係小額嗰度嗰個命令。第五，就係三幅相喇。第六，就係你畀第一、第二被告嘅律師信。就六份啫，係。

答：唔。

官：咁點解凈係得呢六份嘅，你知唔知？

答：可能呢啲--呢--律師認為呢六份就涵蓋晒即係呢次嘅文件嘅所有性質喇，可能咋，我唔係好知咋，我而家第一次先知道，數過佢得六份咋。

官：即係你唔知點解得六份呀？

答：係呀，係呀，係呀。

46.  As one can see from the above, Mr Yiu claimed to be unaware of the obvious inadequacy of his own disclosure.  I did not believe him.

47.  That clarification question was necessary because previously, Mr Yiu was repeatedly, and quite properly, cross-examined by Counsel for Mr and Mrs Kwok on his obvious non-disclosure of relevant and material documents, firstly in this manner: -

問：咁109頁喇，就係嗰個會議紀錄。

答：係，係喇，係喇。

問：呢個--呢份文件，我又想同你澄清一下。

答：哦。

問：呢份文件就好--嗱，呢份文件就好近期，即係差唔多係--即係我諗應該係一個月前喇，係咪呀？係，先至攞到返嚟，你作為原告人，你係冇攞過呢份文件出嚟，你記唔記得呀？

答：我？我--呢份會議紀錄，你--你嘅意思係點樣？

問：即係唔係你披露出嚟嘅，呢份文件。

答：呢份文件公開咗㗎喇，已經貼咗落去大堂嗰度，呢個公--公眾文件嚟嘅，呢套係，即係貼--公開過㗎喇，已經。

問：公唔公開過一件事，因為公開嘅時候，呢件官司都未開始進行吖，係咪？公開嘅時候，15年6月16號吖，係咪呀？

答：哦，哦，哦。

問：之後嘅事情喇，咁呢個訴訟係去到2016年先至開始㗎嘛，係咪？

答：可以咁講喇，咁你想點問？

問：唔係，我想問下，即係呢一份嘅會議紀錄，我哋講嚟講去就6月16號你當選嗰個問題吖嘛。

答：係呀，係呀。

問：係，有冇咩嘢特別理由，你呢份文件你唔攞出嚟呀，當時你係一路做緊嗰個管委會主席嘅時候，一路唔攞份文件出嚟？

答：我冇理由唔攞出嚟，佢公開個喎。

問：但事實上你係冇攞出嚟吖嘛，係咪呀？

答：我點樣--佢都冇人問我攞，我同埋又唔係管喺我手嗰度喎，唔關我事個喎，呢啲，即係呢個文件，你--你問我攞，咁我都--我盡量搵畀你，咁但係冇人問過我，又第一、第二，呢份--呢份文件係公開嘅，即係佢一早已經係喺街，派晒街，派晒嘢，即係冇--唔係神秘嘢嚟個喎，即係你可以去民政事務處，叫何小姐打畀你又得，即係好多--好多途徑囉，...

問：唔，好呀。

答：...唔係話咁--即係唔好賴我度，即係我--我冇咁嘅權力，即係佢都公開咗，我點解即係收就收--我唔明，我唔明個意思係點樣。

問：好呀。

48.  And then as follows: -

問：好呀，咁嗰啲授權票呢？去咗--你哋有冇保留呀？

答：我冇掂過，我未--冇見過。

問：即係你做咗主席之後都冇見過？

答：係，係，冇見過呢啲嘢㗎喇，已經係。

問：去咗邊度，你知唔知道？

答：我亦唔關心，亦唔知道。

問：點解唔關心呢？

答：梗係唔關心喇，我做咗主席，仲關心佢做咩嘢呀？

問：你知唔知根據呢個《大廈管理條例》...

答：我知道。

問：...係要保留呢啲選票同埋呢啲嘅授權信㗎，你知唔知道呀？

答：係呀，係呀，係呀，梗係知道喇。

問：咁去咗邊度呀？

答：因為佢冇交畀我。

問：邊個冇交畀你呀？

答：前一任主席冇交收。

問：你有冇問佢攞呀？

答：我問過佢攞所有嘢，但係佢冇一--冇一個正常嘅交收畀我㗎嘛。

問：哦，即係佢留起咗？

答：我唔知係咪佢留起咗，係。

問：即係你有問過龔主席攞？

答：我冇問過佢攞，我問過佢攞晒法團所有嘢。

問：哦，你問佢攞晒法團所有嘢？

答：係，冇錯，交收吖嘛。

問：咁佢有交收畀你？

答：佢冇交收畀我。

問：乜嘢都冇交收畀你？

答：係，冇錯。

問：咁佢畀咩嘢你呀？乜嘢都唔畀你？

答：畀咗個鎖匙我。

問：畀咗個鎖匙你，咁個鎖匙入面有啲乜嘢吖？

答：鎖匙入面...

問：開--鎖匙開乜嘢㗎？

答：開office。

問：係，咁office入面有啲咩嘢呀？

答：我冇點到呀，佢都冇點畀我。

問：咁你有冇入去睇下，究竟個office入面有冇一啲法團嘅文件，你話你要即係處理番法團咁多年來累積落嚟嘅問題吖嘛，係咪呀？

答：係呀。

問：咁你有冇去查核番嗰啲法團入面有啲咩嘢文件紀錄呀，有冇啲咩嘢合約呀？

答：所以我咪話--我咪查核咗之後咪話--話畀你知，頭先咪話畀你知囉，冇見過呢啲嘢。

問：冇見過？

答：係，冇見過。

問：好，咁你冇見過，你有冇問番--你有冇問番龔主席...

答：有呀，有呀，有。

問：...「喂，5月8號、5月16號嗰啲...」

答：有呀，有。

問：「...投票、授權票，嗰啲去晒邊度？」

答：係，有，有。

問：有？

答：有，唔係，唔係凈問呢啲，問晒所有嘢，我後屘興咗--去土審興咗訴訟吖。

問：唔，咁點呢，跟住？

答：問佢攞番啲嘢畀我。

問：唔，跟住呢？

答：唔，唔，跟住呀，跟住要睇番個訴訟係點先得，因為佢好似有個理由，唔知點樣答辯過嚟，係。

問：幾時呀？

答：唔，唔記得又係，係，有，但係有紀錄响度，你唔使擔心。

問：即係土審嗰個仲未完呀，你嘅意思係？

答：唔係，土審嗰個完咗㗎喇，應該。

問：咁即係點啫？

答：唔。

問：咁即係點呀，姚生？

答：唔係，我問咗佢攞，佢唔--冇畀到囉，又係。

問：即係你嘅意思你有問，...

答：係呀。

問：...問龔先生攞...

答：係呀，係呀。

問：有--有冇問佢攞番呢啲咁樣嘅授權票同埋投票？

答：攞晒所有嘢，都話。

問：攞晒所有有...

答：所有嘢，係。

問：即係你係所有嘢？

答：所有嘢，法團嘅所有嘢吖嘛，佢交收畀我㗎嘛，係，咁佢都冇交收，咁點--所有嘢都冇交收。

問：咁佢交收一條鎖匙，個鎖匙就開咗辦公室㗎嘛，咁入面啲嘢咪全部係交收晒畀你喇，即係你要佢逐項同你清點？

答：咁梗係要逐項清點喇，如果唔係，點知裡面有啲乜嘢呀？

問：你有冇搵過入面，有冇搵過？

答：唔，我冇。

問：搵過嗰個office入面究竟有啲咩嘢文件，你有冇搵過？

答：我梗係冇。

問：即係畀咗條鎖匙你開個office，...

答：唔。

問：...你入去，你唔去睇下入面有冇啲咩嘢文件？

答：即時冇睇。

問：即時冇睇，我唔係問你即時，咁你最終有冇睇過啲文件吖，有冇check過？

答：最終都係冇睇，冇check嘅。

問：即係去到今天，你都係冇check？

答：冇check，因為好多文件，堆滿晒，我冇咁嘅義務同埋責任要做呢樣，我只係嚟呢度解決幾個問題嘅啫，我唔係嚟睇文件㗎嘛，...

問：咁嗱...

答：...就要換個升降機。

問：咁你就而家就即係開始咗呢個訴訟去告被告人咁喇，就話即係佢哋誹謗你喇，係咪？

答：唔，係，絕對。

問：咁佢哋其中一個嘅講法，就係話即係當時你係有一啲假嘅選票，你用假選票當選咁。

答：係，係。

問：呢個你唔會去想話，喂，搵番啲文件出嚟、搵番當時啲選票出嚟去為你作出一個平反、澄清？

答：唔係，我--嗰啲選票一定係真，點解呢，因為當時民政事務處、警察，三方面嘅人喺度，證明咗呢啲嘢，如果佢係假嘅，佢就唔會畀任--嗰張選票我，即係因為佢嘅性質，大律師先生你要明白，佢去求證咗嗰張--嗰個授權書係真嘅，佢先會畀我，你明白未？

49.  It was necessary for me to set out the above as it showed how evasive Mr Yiu was.  The point made by Counsel for Mr and Mrs Kwok was a simple one.  Mr Yiu plainly knew this civil action was partly if not primarily about the truth of the Pleaded Meanings.  He signed statements of truth for his two pleadings.  Any person of normal intelligence, even if not represented (and Mr Yiu was all along properly represented, firstly by solicitors and then by solicitors and counsel), would be aware that the main documents to be disclosed to Mr and Mrs Kwok or showed to this Court must include the originals or true copies of the minutes for the AGM and Part II of the AGM, signed proxy forms, used voting papers, etc.  Yet, they were never disclosed in any part of Mr Yiu’s List of Documents.  I did not accept any of the explanations given by Mr Yiu for his obvious and serious non-disclosure.  He must have been aware full disclosure was a serious and on-going obligation and that all relevant documents must be disclosed.  His lawyers would in any case be aware the Court of Appeal had in Deak & Co (Far East) Ltd v NM Rothschild & Son Ltd [1981] HKC 78 and many more cases thereafter applied the Peruvian Guano test in Hong Kong.

50.  As to the consequence of material non-disclosure, Yuen JA of the Court of Appeal said this in L v C [2007] 3 HKLRD 819 at paragraph 191(2): -

“… In my view, where a party has been guilty of failing to make full disclosure, she cannot complain if uncertainties are determined against her favour…”

51.  I respectfully agreed with what Yuen JA had said.

52.  In the absence of credible explanations after Mr Yiu had been given a full opportunity to explain his obvious and serious non-disclosure, I drew the inference that Mr Yiu knew proper discovery on his part would not have helped him, most probably because proper discovery would show that he was unlawfully elected by fake or forged proxies, and that he was dishonestly involved in the forgery.  On the balance of probabilities, it was more likely that Mr Yiu’s non-disclosure was deliberate and dishonest.  On that basis, I also resolved any uncertainty as to the lawfulness of Mr Yiu’s election, etc., against his favour.

53.  It was by reason of all of the above that I was satisfied on the evidence that Mr Yiu was indeed dishonest, unlawfully elected by means of forged proxies, and suspected of being involved in the crime of forgery.  The 1^st Meaning was substantially true.

54.  Moving on to the 2^nd Meaning, I was satisfied on the evidence that Mr Yiu had instructed his agent to criminally damage the signs of the Business and was thus involved in the crime.  I shall explain.

55.  Firstly, as mentioned in paragraph 10(2) above, when Mr Yiu was cross-examined on the truth of the 2^nd Meaning, he ridiculously alleged the words “食屎、呃錢、屎忽鬼” [English translation: “Eats Shit, Cheating People’s Money, Arsehole”] written on a promotional sign of the Business [B/17] could be part of its original format (格式), as opposed to the result of criminal acts of vandalism.  I was fully satisfied, after receiving live oral evidence from Mr and Mrs Kwok, that they did not include such derogatory, offensive and insulting words as part of the format of the promotional sign, and that Mr Yiu was trying to distance himself, not just from the allegation that he caused the damage, but from the irrefutable fact of damage.  I drew the inference, after carefully observing the way Mr Yiu gave those answers before me, that Mr Yiu gave those answers (which I rejected as completely false and ridiculous) because he was the person who caused the damage.

56.  Secondly, Mr Yiu demonstrated, through the way he gave his oral evidence, that he hated, and had at all material times always hated, Mr and Mrs Kwok.  The hatred was immense.  That was obvious to me when I was receiving Mr Yiu’s evidence first hand.  That made it very likely, on balance of probabilities, that the 2^nd Meaning was true.

57.  Thirdly, Mr and Mrs Kwok had given sworn evidence, which I accepted as entirely true, to the effect that (1) Fat Ball admitted to them he vandalized their signs on Mr Yiu’s instructions; and (2) Mr Yiu admitted to them he was the one who ordered the vandalism.  This also showed that the 2^nd Meaning was true.

58.  For the 2^nd Meaning, Mr Chow raised various issues on behalf of Mr Yiu, which I should address one-by-one.

59.  Firstly, Mr Chow said there was exaggeration in the Words in that vandalizing bills (招紙) was exaggerated into vandalizing signboards (招牌).  I accepted that looking at the evidence, most of the vandalism was in relation to bills instead of signboards, but the parties agreed that even if the 2^nd Meaning was only “substantially true” but not literally and entirely true, the defence of justification would still succeed, so I could not see any merits in the “exaggeration” complaint.  In my judgment, the 2^nd Meaning was still substantially true even though most of the vandalism appeared to be in relation to bills instead of signboards.

60.  Secondly, Mr Chow said Mr and Mrs Kwok did not personally witness the process of vandalism – they only saw the result.  I accepted that as true but irrelevant.  This is a civil case and Mr and Mrs Kwok only had to prove the substantial truth of the 2^nd Meaning on balance of probabilities, which they did.  Their case would of course be substantially stronger if one or both of them had seen the process of vandalism, but the absence of such direct evidence was not fatal.

61.  Thirdly, Mr Chow said Fat Ball was never called as a witness by Mr and Mrs Kwok.  Again, that was true but irrelevant.  It was the case of Mr and Mrs Kwok that Fat Ball was an agent of Mr Yiu, and the person who vandalized their signs on instructions.  It was, with respect, unrealistic for Mr Chow to in effect suggest that the victims of a crime should call the criminals responsible for that crime to testify for them.  In fact, one should perhaps ask why Mr Yiu did not himself ask Fat Ball to testify for him and deny the oral conversations on oath, if it was his case that the conversations never took place, or the “oral admissions” were never uttered.

62.  Fourthly, Mr Chow said one of the “oral admissions” which came up during oral evidence was never stated in the witness statements of Mr and Mrs Kwok, and that I should reject it as a recent fabrication.  I did consider this submission carefully.  In the case of Mrs Kwok, the exchange in question was as follows: -

問：係，姚生當其時有冇嘢講吖？

答：有，佢話「抌妳個--抌妳招牌咪抌妳個招牌囉，針對妳咪針對妳囉，點吖？」

問：如果有嘅話，呢啲咁重要嘅，點解妳唔會喺呢一個嘅口供紙裡面詳細寫低嘅？

答：冇寫低，其實都唔需要，我覺得都唔需要寫，寫嚟做乜？

問：呢份口供紙係妳嘅律師幫妳預備嘅，係咪？

答：佢有讀過畀我聽。

問：係。

答：其實我講呢啲--呢啲係事實。

問：假使間姚先生真係講過啲咁嘅說話，佢承認話抌妳嘅招牌，搣妳嘅嘢，妳大可以寫低佢，妳律師亦都會幫妳寫低佢吖。

答：或者我當時疏忽咗喇。

問：唔。向妳指出，根本上姚先生當其時就冇講過啲咁樣嘅嘢。

答：佢有講過呢啲嘢。

63.  I agreed I should treat evidence which came up during cross-examination but was not stated in witness statements with some scepticism and with great caution, which I did in relation to the evidence recited above.  However, at the end of the day, I must assess the truth or falsity of the oral evidence by reference to all relevant considerations.  On the authority of In re B (Children) [2009] 1 AC 11 (at paragraph 31, per Baroness Hale), my own overall impression of the witness was one such consideration.  On the authority of Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 (at paragraph 37, per Bokhary PJ), I was entitled to take the demeanour of the witness into account with care.  My overall impression of Mrs Kwok, after considering the whole of her evidence, its inherent probabilities, and taking her demeanour under cross-examination into account with care, was that she was honest, reliable, frank, candid, simple, sincere and humble.  I accepted her evidence, including her evidence on both “oral admissions”, as entirely true, even though one of the “oral admissions” had not been set out in her witness statement, because in my assessment she told this Court the truth.

64.  In the case of Mr Kwok, the exchange about “oral admissions” was as follows: -

答：咁就14號啱啱就--諗住搵唔到就搵--去管理處搵姚生，八十--九 -- 98號舖嗰度，搵姚生嘅。剛啱好姚生坐喺度，跟住肥波又係坐喺度，佢就--佢--佢呢個管--管理員就係日頭成日唔瞓覺嘅，夜晚就替更嘅。

問：你講邊個成日唔瞓覺呀？夜晚替更？

答：即係肥波囉。

問：肥波。

答：朱--朱海--朱海波囉。

問：住喺咩嘢話？對唔住。

官：朱海波，係咪？

答：係。

問：朱海--朱海波，唔。

官：佢係日頭瞓覺，夜晚返工㗎嘛，係咪？

答：係呀，係呀。咁我日頭就見到佢，即係管理處姚生--啱啱姚生喺度--坐喺嗰度，咁我就搵到佢喇，我就話「肥波，點解你遮我--我嘅招牌？」「我遮咪遮囉」，係，咁樣講。「你--唔係話遮你個招牌呀，你--你貼出嚟咁多招牌，都係我--主席姚生--姚盛賢叫我拆嘅」，點解--我話「點解你叫我拆--叫--叫你拆嘅？」佢話「我--我夜更」，佢話「我--我喺--係同管理處打工，姚--姚生就管理--就係主席，佢話做乜就做乜」。係，所以姚生話「係吖，點呀，你--你--我--我拆你，點吖？係，叫佢拆吖」，係，咁講囉。係，咁樣講冇得解呀。

65.  Mr Chow made the same complaint in relation to Mr Kwok’s evidence.  My overall impression of Mr Kwok, after considering the whole of his evidence, its inherent probabilities, and taking his demeanour under cross-examination into account with care, was that, just like Mrs Kwok, he was honest, reliable, frank, candid, simple, sincere and humble. I accepted his evidence, including his evidence on both “oral admissions”, as entirely true, even though one of the “oral admissions” had not been set out in his witness statement, because in my assessment he told this Court the truth.

66.  Fifthly, Mr Chow said it was incredible that notwithstanding these “oral admissions”, Mr and Mrs Kwok did not call the police.  I saw no merits in this complaint.  Mrs Kwok gave a perfectly logical explanation when asked, to the effect that they did not call the police because it would be futile.  They took the view that the police could not stop the crime from taking place, as it was impractical to monitor the actions of Fat Ball round the clock.  With that explanation from Mrs Kwok, which I accepted as true, there was nothing extraordinary about their decision not to call the police.

67.  Finally, Mr Chow attempted to slip in a point to the effect that the signs of the Business were located in the Estate’s common areas so that the IO had the right to remove them as they wished.  I saw no merits in the attempt as it was Mr Yiu’s own case (as mentioned by himself in the witness box for no less than 6 times) that there was no damage or removal at all.  It was never any party’s case that the IO passed a valid resolution authorizing the vandalism or removal, and no such resolution had ever been produced.  In fact, it was never any party’s case that the vandalism or removal was the result of a lawful act of building management.  Even if an object was placed or posted in the common areas of the Estate, this could be consented to by the IO, in which case it could stay where it was and be protected by the law. Having signs posted in the common areas of the Estate could be in the best interests of the Estate, and owners may vote in favour of it.  I was satisfied the damage in question was caused by the criminal acts of Fat Ball and Mr Yiu, as opposed to any lawful act of building management.  In fact, if there was any legal right to remove the signs, it would be vested in the IO itself, or the registered owner of the walls in question.  It would never be vested in Mr Yiu personally.  Unless authorized by the IO or the registered owner of the walls in question by proper resolutions, what Mr Yiu did could never have been lawful.

68.  It was by reason of all of the above that I was satisfied on the evidence adduced that Mr Yiu had instructed his agent, namely, Fat Ball, to criminally damage the signs of the Business and was therefore involved in the crime.  The 2^nd Meaning was also substantially true.

69.  Since the Pleaded Meanings were substantially true, Mr and Mrs Kwok had a complete defence in this action and Mr Yiu’s claim failed.  I would, however, proceed to deal with the other issues as well.

Issue 2 – Qualified Privilege

70.  Mr Enzo Chow, Counsel for Mr Yiu, made it clear in his oral opening that he had abandoned all allegations of malice.  The only issue in relation to the defence of qualified privilege which I had to consider was whether the publication of the Words took place on an occasion of qualified privilege and was not too wide.

71.  In my judgment, the publication of the Words by Mr and Mrs Kwok plainly took place on an occasion of qualified privilege and was not too wide.

72.  It was trite that for the purpose of the law of qualified privilege co-members of an incorporated owners have a common interest in matters relating to the affairs of the incorporated owners, and publications relating to the affairs of the incorporated owners between fellow co-members must be  prima facie protected by “common interest qualified privilege”: Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 (paragraph 69, per Lok J).

73.  As the Words in our case were about (1) the IO’s election; and (2) the way the purported Chairman of the IO had been treating members of the IO, all members of the IO shared a common interest in receiving the Words.  The publication of the Words was therefore prima facie protected by “common interest qualified privilege”.  The real issue was whether the publication was too wide.

74.  The complaint of Mr Chow, Counsel for Mr Yiu, was that Mr and Mrs Kwok published the Words in the Shop, and visitors who were not owners of the Estate would also be able to read the Words.  That, suggested Mr Chow, made the publication too wide.

75.  Having carefully considered Mr Chow’s submission on this, I rejected it.  If resources and practicalities would never be issues, one may say all owners who would like to communicate with other owners should always do so by sealed envelopes clearly marked “private and confidential – for the eyes of the owners only” inserted into the owners’ letter-boxes so that even tenants of owners (or their cohabitants) would not be reading the relevant words.  Requiring all owners in large real estate developments to do so for all potentially defamatory communications on matters relevant to the management of those developments would in my judgment render our defamation law so detached from reality as to be bringing it into disrepute and render the protection offered by qualified privilege wholly illusory.  In my judgment, Mr and Mrs Kwok should be given a reasonable margin for the extent of their publication.  For as long as the primary readers would be owners in the Estate, even though some non-owners, including visitors to the shopping arcade in the Estate, could also be reading the Words, the publication was not too wide.

76.  My conclusion could be different if the shopping arcade was as busy as Pacific Place Mall, but the evidence did not show this to be the case.  My conclusion could also be different if the publication took place at a bus stop for a busy route or outside an MTR station, as was the case in Lau Liu Fai v林其東 [2018] HKCFI 10 (paragraphs 9, 15, 69, 70 & 75, per Recorder Pow SC), but this was not the case.  Finally, my consideration could be different if the method of publication was such that even vehicle passengers passing through the vicinity en route to other buildings would also be able to read the words, as in Mok Kam Kwai v Lam Mo Fat (HCA 1868/2010, 6^th March 2014) (paragraphs 2, 5, 6 & 60, per Chung J), but the evidence did not show this to be the case. 

77.  On the evidence before me, I was satisfied the publication of Mr and Mrs Kwok was not too wide.

78.  A few more things must be said about Mr Chow’s complaint on this issue.

79.  First, it must be recorded that Mr Yiu chose not to adduce any direct evidence on readership.  Not a single non-owner had been called to give evidence to the effect that he or she was not an owner in the Estate but had read the Words when they were published at the Shop.  In the absence of such direct evidence, I was only satisfied some non-owners could have read the Words.  I was not at all satisfied any non-owner actually read the Words.  Mr Yiu’s own indirect evidence on readership was rejected by me as unreliable, given his general unreliability as a factual witness.

80.  Second, as Mr Chow accepted in paragraphs 57 & 61(b) of his written closing, the defamation law of Hong Kong recognized the concept of incidental or ancillary privilege.  See, e.g., Drummond v Kwaku [2000] 1 HKLRD 604 at 630-C, per Peter Cheung J (as Cheung JA then was), or Tuet Kazim v Ma Nurudeen [1987] 3 HKC 382 at 390-H (per Macdougall J).  A more thorough discussion on the developments of the law in this area could be found in Gatley on Libel and Slander (12^th Edition, 2013), where in paragraph 14.76 on page 627 the learned editors said, inter alia, that: -

“… provided the publication does not go beyond the exigency of the occasion, the mere fact that the defamatory matter is communicated to persons who have no legitimate interest in its subject-matter will not avoid the privilege…”

81.  I agreed with what the learned editors of Gatley had said in the passage above.

82.  More importantly, the learned editors of Gatley then set out a long list of cases which showed that for as long as the mode of publication chosen could be said to be reasonable in the circumstances, common law courts around the world would be quite prepared to hold that publication to “incidental strangers” would not destroy the privilege.

83.  Obviously, none of those cases was binding on me.  I would, however, cite one of them to illustrate the point.  In Chen Cheng v Central Christian Church [1999] 1 SLR 94, a decision of the Singaporean Court of Appeal, a prima facie defamatory publication by way of an article entitled “AOG & CCC – Are they Cults?” in a religious magazine called “Impact” with a circulation of around 6,000 intended to be read by members of the evangelical community was said to be acceptable even though some of the readers would be non-members with no interest in receiving the words in question.  In so holding, LP Thean JA of the Singaporean Court of Appeal applied the passage in Gatley (then only in its 9^th Edition) referred to above with approval, confirming it to be a correct statement of the law.

84.  Also of relevance was what was said in the American text of Restatement of the Law (2d) of Torts, cited in footnote 547 on page 628 of Gatley with the learned editors’ approval.  It read as follows (see Volume 3, Chapter 25, paragraph 604, comment b, on page 293): -

“… Often the only practical means of communicating defamatory matter involves a probability or even a certainty that it will reach many persons whose knowledge of it is of no value in accomplishing the purpose for which the privilege is given. In this case, the publication is not excessive or an abuse of the privilege, if the importance of the interest involved, the gravity of the harm threatened to it and the inconvenience of any other means of communication make the publication reasonable…”

85.  The learned editors of Restatement of the Law then cited the example of police radio transmissions.  Police officers were said to be fully entitled to publish potentially defamatory words (e.g. that certain persons were suspected to be dangerous criminals or fugitives of justice) to each other using public airwaves even though ordinary members of the public could also pick up those signals by tuning their radios.  The mere fact that those ordinary members of the public could also hear or had also heard the words in question would not bring the publication outside of the privilege.  The learned editors went on to explain the rationale as follows: -

“… One privileged to publish defamatory matter may, without abuse of the privilege use a method of communication that involves an incidental publication of the defamatory matter to persons to whom he is not otherwise privileged to publish it, if the method, although not the only way in which the information can be effectively communicated, is customary and sanctioned by business or other necessity.”

86.  I agreed with the holding of the Singaporean Court of Appeal in Chen Cheng.  I also agreed with what was said in the American text of Restatement of the Law, as recited above.  I held the same to be, and applied the same as, the law of Hong Kong as well.

87.  All things considered, the method used by Mr and Mrs Kwok to publish the Words in our present case was a reasonable and permissible one on the facts of our present case.

88.  For these additional or alternative reasons also, I was satisfied the publication of Mr and Mrs Kwok was not too wide.

89.  Finally, Mr Chow drew my attention to two old English cases, being (1) Sadgrove v Hole [1901] 2 KB 1; and(2) Simpson v Downs (1867) 16 LT 391.  I thank Mr Chow for so doing but I did not find either of these cases of assistance.

90.  Sadgrove was about evidence of malice. Specifically, it was about whether the usage of a postcard instead of a sealed letter as a means of communication could by itself and without more be evidence of malice.  The English Court of Appeal held, obiter, that it could be. That was of no application in our case, as malice had never been pleaded in our case and had in fact been explicitly abandoned by Mr Chow in his oral opening.

91.  Simpson was about publication by way of newspapers.  It was rare, in 19^th century England, for publication by way of newspapers to be able to rely on “traditional” qualified privilege.  That eventually led to the House of Lord’s decision in Reynolds v Times Newspaper Ltd [2001] 2 AC 127, which created a brand-new species of “extended” qualified privilege.  That was of no application in our case either, as Mr and Mrs Kwok did not do anything which could be fairly described as resembling the publication of a newspaper, or a publication “to the world at large”.

92.  For the above reasons, I derived no assistance from Sadgrove or Simpson.

93.  Since the publication of the Words by Mr and Mrs Kwok was plainly on an occasion of “common interest qualified privilege” and it was not too wide either, the defence of qualified privilege also succeeded and Mr Yiu’s claim was dismissed for this alternative reason as well.

Issue 3 – Consent

94.  All parties agreed consent could be a complete defence to any claim of defamation.  That was clear, by way of example, from what DHCJ Q Au-Yeung (as Au-Yeung J then was) had said in Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27^th November 2012, paragraph 77), from what the learned editors of Gatley had said in paragraph 19.10 of their work, and from what Dr Matthew Collins QC had said in paragraph 18.01 of Collins on Defamation.

95.  For the purpose of “the defence of consent” within the law of defamation, the consent can be explicit, implicit, implied or inferred by the conduct of the parties.

96.  The English case of Carrie v Tolkien [2009] EMLR 9 neatly illustrated how the defence worked.  There, the claimant operated a website with the address www.tolkienexaminer.blog.co.uk. It was a “blog” with a comments function.  The defendant was said to have published a comment defamatory of the claimant on that blog.  The claimant became aware of that comment but did not take any step to remove it for the next 22 months.  Although there was never any explicit communication of consent between the parties, Eady J aptly observed the claimant’s suggestion that he suffered substantial “upset and distress” was plainly inconsistent with the objective fact of inaction on the part of the claimant, inferred that the claimant must have consented to and acquiesced in the publication of the comment, ruled that no properly directed jury would come to a different conclusion (see his paragraph 16), and summarily struck out the claimant’s case.

97.  The defence of consent in our present case was even stronger than the one in Carrie v Tolkien [2009] EMLR 9.

98.  The evidence was clear.  Mr Yiu explicitly communicated his consent to the publication of the Words at the Shop to Mr and Mrs Kwok in an oral conversation with Mrs Kwok.  When Mr Yiu discovered the publication of the Words by Mr and Mrs Kwok, he took no step to ask for their removal until 7 months later, whereupon the Words were promptly removed.  The defence of consent was available to Mr and Mrs Kwok, and Mr Yiu’s claim was dismissed on this alternative ground also.

99.  Mr Chow’s complaint in relation to this was two-fold.  Firstly, Mr Chow said that there was no consent.  Secondly, Mr Chow said even if there was consent, the consent should be construed narrowly and what Mr and Mrs Kwok did was beyond the consent given.  I rejected both limbs of Mr Chow’s complaint.  In order to explain my reasons for so doing, it is necessary for me to set out the relevant evidence, which I hereby do.

100.  The evidence of Mr and Mrs Kwok on the oral consent went as follows [A/105, para 10] & [A/178, para 10]: -

“約在2015年12月至2016年1月上旬，原告人將上述小額錢債案的判決書張貼於屋苑內的富麗樓的電梯大堂通告板，後來被街坊發現通知我們，於是我們去找原告人理論，我們指出他並沒有貼出欠交管理費的全部事實，如貼判決書亦應該貼出我們的抗辯書，原告人指我們喜歡張貼便貼回自己的店舖內，不要貼公眾地方。由於原告人知道我們小額錢債案的答辯書的內容，在得到他口頭同意下，我們就把抗辯書貼在80號舖的櫥窗上，讓業主街坊清楚我們罷交管理費的原因是由於原告人領導的法團管理或監察不力，業主街坊是有知情權。”

101.  Mr Chow’s first complaint about the passage above was that Mr and Mrs Kwok adopted the exact same passage as their evidence – even the punctuation was identical.  This, suggested Mr Chow, meant I should not rely on it.  I saw no merits in this argument.  Each case must be decided on its own facts.  In the case of Mr and Mrs Kwok, they had been married to each other for 30 years.  I could tell by the way they gave their evidence, specifically by the way they spoke of each other, that their relationship with each other was harmonious and intimate.  They were at all material times represented by the same lawyers.  These being the background facts, it was not unusual for their witness statements to be drafted by the same lawyers and be similar.  This was perfectly consistent with both of them having told this Court the truth.  I accepted the passage above, adopted by both Mr and Mrs Kwok as their evidence, as entirely true.

102.  More importantly, even if the evidence of Mr and Mrs Kwok on this issue could be said to be unsatisfactory (it could not), the evidence of Mr Yiu was worse.

103.  As had been aptly pointed out by Mr Damian Wong, Counsel for Mr and Mrs Kwok, in his written closing, when Mr Yiu gave evidence on this issue, he had given two completely different and mutually exclusive versions of it, both of which unreliable.  In his witness statement [A/51, para 17], Mr Yiu alleged Mrs Kwok met him inside the IO’s office in the Estate and asked him why he posted an order of the Small Claims Tribunal in the Estate (“質問為何要張貼該頒令書”), he understood Mrs Kwok and had a conversation with her but did not give her any consent to publish the Words (“the Written Version”).  However, under cross-examination, Mr Yiu changed his evidence and alleged he never understood anything uttered by Mrs Kwok at all (“the Oral Version”).  These 2 versions of event were mutually exclusive, and could not both be true.  I rejected both versions of event put forward by Mr Yiu as false and fabricated by him.

104.  Further, subsequent events had in any case showed that it was more probable that the version of events put forward by Mr and Mrs Kwok was entirely true.  Mr Yiu had been asked about this, in this manner: -

官：我真係唔係好理解呢一點，我需要理解多少少，第54頁呢...

答：係呀。

官：係，你揭到去先喇。

答：好呀，揭到。

官：係，你嘅證人口供嘅第31段都有提到發律師信嗰個日期嘅。

答：係呀，係呀，係呀。

官：咁因為佢個heading就已經係話「本人對於第一及第二被告人上述行為的跟進事宜」喇。

答：係喇，係喇。

官：咁跟住劈頭第一句就話「7月25號」喇，...

答：唔。

官：...咁所以我估就係嗰封就第一封信喇。

答：係。

官：2016年7月25號就第一封律師信，咁點解2015年12月29號就發現，但係2016年7月25號先出律師信呢？我唔係好理解，你可唔可以解釋畀我聽呢？

答：開頭就應該--之前律師就叫我哋即係呢個--我哋都問過，我開頭都唔知呢種叫誹謗㗎。

官：係。

答：凈係知佢貼咗响度，咁搵手機影咗畀啲人睇，咁後屘就畀咗個律師「呢啲就哥哥以告得入㗎，誹謗嚟㗎喇。」咁。

官：係。

答：咁跟住--跟住叫佢去跟進，跟住嗰啲相係用相機嚟影嘅，即係舊陣時我哋只係用手機嚟影啫，係，即係唔清楚，咁後屘6月幾--幾號嗰啲就特登搵相機嚟影清楚啲囉，係。

官：係，即係你嘅解釋點解隔咗咁耐呢，...

答：係呀，係呀。

官：...就因為你之前唔知嗰啲叫誹謗，...

答：係呀，我哋呢方...

官：...問咗律師知喇，咁就所以就隔咗咁耐，okay。

答：係，係，隔得耐啲，係。

官：係。呢度我有少少擔心，因為呢度件案件其中一個爭議點，就係究竟呢個被告貼呢兩封嘢出嚟，有冇你嘅同意呀。

答：唔。

官：咁被告可能會話咪就因為你同意囉，同意，所以咪發現咗都唔--唔出律師信，唔理囉，咁你同意吖嘛，咁點會告啫。

答：唔。

官：咁如果佢哋咁講，咁你會有咩嘢回應呀？

答：我冇同意。

官：你冇同意。

答：係，我何來會同意有人誹謗我呢，係。

105.  So Mr Yiu accepted he became aware of the publication of the Words at the Shop by Mr and Mrs Kwok as early as on 29^th December 2015 but did not ask for their removal until 25^th July 2016.  The explanation of Mr Yiu was that he did not know it amounted to libel until after he sought legal advice.  I did not accept his explanation as true or credible.

106.  Whilst Mr Yiu struck me as an evasive dishonest liar, he was plainly educated, and it showed.  Mr Yiu might not have been aware of the precise definition of libel, or the rules in the law of libel, but he would be able to understand the meaning of the Words[A/51, para 20] [A/53, para 26] and come to a layman’s decision as to whether he should ask that the Words be removed.  If Mr Yiu did not initially consent to the publication of the Words, judging from Mr Yiu’s general character as I had been able to observe, I would imagine he would be yelling at Mr and Mrs Kwok and asking them to remove the Words immediately after his discovery.  Instead of doing so, Mr Yiu allowed the Words to stay where they were until 25^th July 2016.  In my judgment, that must be because Mr Yiu did orally consent to the publication of the Words in the manner as suggested by Mr and Mrs Kwok, and only changed his mind shortly before 25^th July 2016.  I held that to be what happened.

107.  As to Mr Chow’s suggestion that what Mr and Mrs Kwok did was beyond the consent given, it had no merits either.

108.  Mr Chow’s point, raised in paragraph 73 of his written closing, was to the effect that Mr Yiu had at most consented to publication of the Words in such a way so that the public could not read the Words.  I rejected this argument.  It was Mr Yiu’s own oral evidence under cross-examination that he lived in the Estate himself and knew literally all owners in the Estate.  Mr Yiu clearly knew the Shop was open to customers of the Business, who could be non-owners.  When Mr Yiu said “貼回自己的店舖內” to Mr and Mrs Kwok, he must have known members of the public would still be able to read the Words, even if the Words faced the inside of the Shop, because customers of the Business would walk into the Shop. Mr and Mrs Kwok did post the Words inside the Shop, it was just that the front of the Shop was made of glass and was transparent.  In my judgment, what Mr and Mrs Kwok did was well within the consent given by Mr Yiu.

109.  Mr Chow drew my attention to the old English case of Cook v Ward (1830) 6 Bing 109, where Tindal CJ and Park J of the English Court of Appeal held that even though the claimant in that case must, by telling a ludicrous story of himself to his own friends, be taken to have consented to that specific publication, that did not justify a 3^rd person publishing the same story “all over the country”.

110.  I thank Mr Chow for drawing Cook v Ward to my attention, but with respect I was not assisted by it.  Mr and Mrs Kwok did not publish the Words “all over the country”, or even just “all over Hong Kong”.  Mr and Mrs Kwok only posted the Words at the Shop, exactly as consented to by Mr Yiu.  That was very far removed from Cook v Ward.

111.  Finally, towards the end of Mr Chow’s cross-examination of Mr Kwok, Mr Chow sought to establish that Mr Kwok received the demand letter dated 25^th July 2016 from Mr Yiu’s solicitors Jackson Ho & Co [A/89] (“the Demand Letter”) but did not promptly remove the Words thereafter.  This argument had no merits whatsoever.

112.  The Demand Letter was written in legal English.  It described the Words as “calumniations and vilifications”. I asked Mr Kwok about his background.  He said he was educated in Mainland China, up to primary school level.  He came to Hong Kong in around 1987.  As far as the English language was concerned, he only knew the individual alphabets.  He could not read the Demand Letter because it was in English.  I believed him.  It would be wholly unrealistic for any person to expect Mr Kwok to be able to understand the phrase “calumniations and vilifications”, or such similar legal English phrases, in the Demand Letter.  Mr Kwok said, and I accepted as true, he removed the Words in August 2016 after he consulted a lawyer.  On the facts of this case, since Mr Yiu curiously chose to issue the Demand Letter to Mr Kwok in a language which Mr Kwok did not understand, it was reasonable for Mr Kwok to only remove the Words after he understood the demand.  In fact, Mr Yiu could have just walked into the Shop himself and orally asked Mr and Mrs Kwok to remove the Words, but he never did.  He did not issue any Chinese demand letter to Mr and Mrs Kwok either.  I agreed that for the purposes of the defence of consent, a consent previously given could be withdrawn by notice, but the withdrawal must be effectively communicated before it could be considered effective.  On the facts of this case, that only occurred after Mr Kwok took advice on the Demand Letter which he could not read without assistance.  In such circumstances, Mr Yiu plainly could not complain about the timing of the removal of the Words.

Quantum

113.  Having considered the cases on quantum cited by the parties, including Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27^th November 2012, DHCJ Au-Yeung) and 梁偉訴倫國祥 (HCA 2657/2002, 11^th September 2003, DHCJ Cheung), even if I were wrong on the issue of liability, I would only have awarded general damages in the sum of HKD 80,000 to Mr Yiu.  Whilst the Pleaded Meanings were plainly serious, the number of people who had read the Words was bound to be small, and the defence of justification was also reasonably raised so that even if it failed, this would not be a case where an award of aggravated damages would be necessary, reasonable or proper.  Mr Chow sensibly abandoned the pleaded claim for exemplary damages, there being no evidential basis for the same.

114.  The above was, of course, obiter, given that I ruled against Mr Yiu on liability, and the issue of quantum did not in fact arise.

Costs

115.  Mr Chow sensibly conceded that costs should follow the event, and I ordered Mr Yiu to pay costs to Mr and Mrs Kwok accordingly.

116.  As Yuen JA of the Court of Appeal aptly observed in Chang Wa Shan v Esther Chan Pui Kwan [2017] 5 HKLRD 57 at 65 (paragraph 15.3), the law of defamation is “technical and complex”. It was reasonable, proper and plainly necessary for Mr and Mrs Kwok to engage Counsel to defend this action, especially since the issue of consent arose on the facts.  I granted Certificate for Counsel to Mr and Mrs Kwok accordingly.

Final Remarks

117.  In my judgment, Mr Yiu was never entitled to any relief, and this action should never have been commenced by Mr Yiu.

118.  I shall leave it to Mr and Mrs Kwok to decide for themselves whether they would like to provide copies of my Reasons for Judgment to the police.  Application for leave would not be required, as these Reasons for Judgment are public.  Mr and Mrs Kwok’s complaints to the police in relation to suspected criminal activities on the part of Mr Yiu would appear to be protected by absolute privilege: Westcott v Westcott [2009] QB 407 at 423 paragraph 36 (per Ward LJ) and 424 paragraphs 41-43 (per Stanley Burnton LJ).

119.  I thank Counsel for their most able assistance.