PET LAND AND ANOTHER v. CHOW PO CHU AND ANOTHER
[2026] HKDC 56
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DCCJ 4216/2022 [2026] HKDC 56 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4216 OF 2022 ------------------------------------
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------------------------------ JUDGMENT ------------------------------ INTRODUCTION 1. This is a claim in defamation. 2. At the commencement of the trial, and by consent, I granted leave to the 1st Plaintiff to discontinue its claims against the 1st and 2nd Defendants, with no order as to costs; and I granted leave to the 1st Defendant to discontinue her counterclaim against the 1st Plaintiff, with no order as to costs. 3. The matter now before the Court is the 2nd Plaintiff’s claim against the 1st and 2nd Defendants. BACKGROUND 4. The following matters are either undisputed or indisputable. 5. The 2nd Plaintiff operates a pet shop under the trade name “Pet Land” in Yuen Long (“the Shop”) providing, inter alia, pet grooming services. 6. On 5 September 2022, at about 5:00 p.m., the 1st Defendant brought her dog (“the Dog”) to the Shop for a bathing service. 7. After the service, at about 6:00 pm, the 1st Defendant left the Shop with the Dog. When the Dog left the Shop, it was observed to be behaving normally. 8. That evening, the Dog developed medical symptoms and vomited. The 1st Defendant and her son took the Dog to Victoria 24hr Veterinary Hospital (“Victoria”). In this trial, the Defendants did not produce any medical records or notes from Victoria. 9. In the early morning of 6 September 2022, the 1st Defendant, her son, her daughter (the 2nd Defendant) and the 2nd Defendant’s boyfriend took the Dog to CityU Veterinary Medical Centre (“CityU VMC”) where the Dog was seen by Dr Edward Ho. According to CityU VMC’s medical notes, x-rays showed generalized bronchial pattern and right cranial lung consolidation. The assessment was “highly suspect aspiration pneumonia”. 10. The Dog was hospitalized and received medical treatment at CityU VMC. 11. That same morning, at 6:28 am, the 2nd Defendant sent several WhatsApp messages to the 2nd Plaintiff, stating that two veterinarians had said the Dog inhaled water through its nose during bathing. The 2nd Plaintiff invited the Defendants to attend the Shop later that morning to discuss the matter. 12. At about 11 am, a meeting took place at the Shop between the 1st Defendant, her friend and her son, with the 2nd Plaintiff. An audio recording of the meeting indicates the 1st Defendant stated that two veterinarians had advised the Dog had inhaled water during bathing. The 2nd Plaintiff explained that neither she nor her staff caused water to enter the Dog’s nose, and she denied responsibility. The discussion continued at length. 13. At around 1:17 pm, the 2nd Defendant published a Facebook post (“the Post”), annexed as Annex 1 to the Statement of Claim, and reproduced at the end of this judgment. The Post clearly identified the Shop by its full name, address and telephone number, and described the Shop as “黑店” (parties’ agreed translation: “unscrupulous shop”) and “好無賴” (parties’ agreed translation: “scoundrel”). 14. On the same day, the 2nd Defendant shared a link to the Post across several Facebook groups and posted comments (“the Comments”), including:
15. On 7 September 2022, the 2nd Defendant again messaged the 2nd Plaintiff via WhatsApp, criticising the 2nd Plaintiff for a lack of love for pets, and informing her that the Dog remained in the oxygen box and was receiving antibiotics. 16. On 12 September 2022, the 2nd Defendant sent WhatsApp messages to the 2nd Plaintiff attaching a page of medical records and a page of medical expenses. She stated that the veterinarian had certified the Dog had aspiration pneumonia, and asked how the matter should be dealt with. After a while, the 2nd Plaintiff replied that the medical record did not state that the aspiration pneumonia was caused by bathing at the Shop. 17. On 21 September 2022, the 2nd Plaintiff’s solicitors issued a demand letter to the 1st and 2nd Defendants. The 2nd Plaintiff forwarded this letter to the 2nd Defendant via WhatsApp. 18. As at the date of this trial, the Post and the Comments remain online and have not been deleted. THE 2ND PLAINTIFF’S CASE 19. The 2nd Plaintiff contends that the Post and the Comments were published with malicious intent. It is alleged that the 1st and 2nd Defendants acted with the purpose of exposing the 2nd Plaintiff to serious public hatred, contempt and/or ridicule, and that the publications were motivated by malevolence and/or spite, calculated to gravely injure the 2nd Plaintiff’s integrity. 20. The 2nd Plaintiff further pleads that the Defendants intended that an ordinary reader, being a person with general knowledge and experience of worldly affairs, would understand the Post and Comments to bear the defamatory meanings that:
21. It is the 2nd Plaintiff’s case that the Defendants had no reasonable grounds to conclude whether the accusations were true or not, but nonetheless published them. 22. The 2nd Plaintiff also relies on the cause of action of malicious falsehood. 23. As to reliefs, the 2nd Plaintiff claims:
THE DEFENDANTS’ CASE 24. The Defendants’ position is that the 2nd Defendant was the sole account holder and administrator of the Facebook account used to publish the Post and the Comments. They assert that the 1st Defendant neither operated nor had the ability to operate, manage, or administer that account. The 2nd Defendant accepts that she alone authored and published the Post and the Comments. 25. In relation to the meanings pleaded by the 2nd Plaintiff, the Defendants do not admit that the words complained of bore the defamatory meanings alleged in the Statement of Claim. They nevertheless contend that, insofar as the words published may be found to be defamatory, the publications were protected by recognised defences. They rely on the defences of fair comment and qualified privilege. ISSUES IN DISPUTE 26. In my view, the issues that arise for determination in this case are as follows:
DISCUSSIONS AND FINDINGS Issue 1 – Whether the 1st Defendant, in addition to the 2nd Defendant, published the Post and/or any of the Comments 27. In order to succeed in her claim for libel, the 2nd Plaintiff must show that defamatory matters with reference to her have been published by the Defendants. 28. Having considered all the evidence, I find that the 2nd Plaintiff has failed to establish, on the balance of probabilities, that the 1st Defendant published the Post or any of the Comments. 29. There is no evidence that the 1st Defendant was in any way involved in, or connected with, the Facebook account from which the statements were made. 30. Ms Grace Chan, counsel for the 2nd Plaintiff, relies on several matters in support of the argument that the 1st Defendant should nevertheless be regarded as a publisher. First, she submits that the information underlying the Posts originated from the 1st Defendant, as she was the person who took the Dog to the Shop. Secondly, she argues that the 1st Defendant exercised control over the 2nd Defendant. Thirdly, she points to the fact that the 1st Defendant was aware of the statements but took no steps to correct or clarify them. 31. None of these submissions, whether taken individually or together, is persuasive. As to the first point, although the 1st Defendant may have been the source of certain factual information, that does not render her a publisher of every subsequent statement made online by another person regarding the incident. The mere possession or communication of information is not sufficient to constitute publication. 32. As to the second point, the allegation that the 1st Defendant exercised control over the 2nd Defendant suffers from several difficulties. It is not pleaded with particulars, and it is therefore not clear what type or extent of control is alleged. Even if a clearer case had been pleaded, I am not satisfied that the evidence establishes that any such control existed. The 2nd Defendant is an adult, and it would be contrary to common sense to infer that the 1st Defendant had the ability to control what an adult daughter chose to publish on social media. 33. As to the third point, I see no basis for inferring that the 1st Defendant’s inaction in response to the Post and the Comments equates to involvement in their publication. Knowledge of a publication by another person, without more, is not sufficient to constitute participation in its dissemination. 34. I therefore find as a fact that the Post and the Comments were published solely by the 2nd Defendant. This finding is sufficient to dispose of the claims for libel and malicious falsehood against the 1st Defendant, both of which must fail for this reason alone. Issue 2 – Whether the Post and/or any of the Comments were defamatory of the 2nd Plaintiff 35. At the outset, I address a submission made by Mr Stephen Siu, counsel for the Defendants. Mr Siu submitted that the 2nd Plaintiff has been suing in her own capacity rather than on behalf of her business. Statements directed at the Shop were therefore irrelevant and should be disregarded. 36. I do not accept this submission. It overlooks the fact that the 2nd Plaintiff was the sole proprietor of the Shop. As such, the business has no separate legal personality, and any loss or damage suffered by the Shop is, in law, loss or damage suffered by the 2nd Plaintiff herself. She is therefore the proper claimant. 37. A statement is defamatory if they would tend to lower the claimant in the estimation in the eyes of right-thinking members of society generally, cause others to shun or avoid the claimant, or expose the claimant to hatred, contempt or ridicule: Gatley on Libel and Slander, 13 ed, at §1-007. 38. Considering the natural and ordinary meaning of the Post and the Comments, I have no hesitation in finding that they are plainly defamatory and bear the meanings as pleaded by the 2nd Plaintiff. 39. First, the Post expressly described the Shop as a “黑店” (unscrupulous shop) and “好無賴” (acted like a scoundrel). These are strong pejorative expressions. Alleging that a business is a “unscrupulous shop” directly imputes dishonest or fraudulent conduct. Accusing the proprietor of acting like a scoundrel conveys serious moral blameworthiness. Such accusations would, without doubt, lower the 2nd Plaintiff in the eyes of right‑thinking members of society. 40. Second, the Comments reinforced and amplified these defamatory allegations. Phrases such as “原來係慣犯” (habitual offender), “推卸責任” (shirking responsibility), “好可恥” (shameful), and “態度勁勁勁惡劣” (extremely bad attitude) assert or imply that the 2nd Plaintiff routinely engages in misconduct, treats customers dishonestly, and behaves in a morally reprehensible manner. These statements go beyond mere criticism; they attribute serious defects of character and ethics to the 2nd Plaintiff. 41. Third, the context of the publication heightens the defamatory effect. The Post clearly identified the Shop by name, address, and telephone number. The statements were therefore directed at a specific and identifiable business. They were published on a public and widely accessible platform—Facebook—with the 2nd Defendant actively sharing the Post across multiple groups, thereby extending its reach. This substantially increases the likelihood that an ordinary reader would regard the allegations as factual and attribute dishonesty, irresponsibility, and improper conduct to the 2nd Plaintiff. 42. Fourth, the allegations related directly to the 2nd Plaintiff’s integrity and competence in running the Shop. Statements impugning a business’s honesty, reliability, or professionalism are by their nature defamatory, as they strike at the core of commercial reputation. 43. For these reasons, I find that the natural and ordinary meaning of the Post and the Comments is defamatory. Issue 3 – Whether the Defendants published the Post and Comments with malice 44. In order to determine this issue, it is necessary first to make findings on certain matters. 45. The Post and the Comments, except Comment 4, were premised on the allegation that the bathing at the Shop caused the Dog to inhale water into its lungs, resulting in aspiration pneumonia. This allegation was asserted as a matter of fact and as a diagnosis made by veterinarians. 46. However, the evidence only establishes that this may or may not have been the case. It does not establish, on a balance of probabilities, that the Dog developed aspiration pneumonia as a result of bathing at the Shop. 47. When the Dog was taken to Victoria, it is the 1st Defendant’s own evidence that Victoria told her that the Dog had aspiration pneumonia and that she did not know why the Dog had suddenly become unwell (see paragraph 10 of her witness statement). As the 1st Defendant herself had no idea why the Dog became sick, Victoria cannot have told her that the bathing was the cause. 48. Further, in a Facebook post made by the 2nd Defendant on 6 September 2022, she criticised Victoria for being unhelpful, stating that Victoria could not determine the cause of the Dog’s condition. In that post, it was said that Victoria suggested that the Dog possibly had pneumonia, but that obesity might also be a cause. This is inconsistent with any suggestion that Victoria had identified bathing as the cause. 49. The Dog was thereafter taken to CityU VMC. The medical records show that the assessment was “highly suspect aspiration pneumonia” and that x‑rays revealed a generalized bronchial pattern and right cranial lung consolidation. Contrary to the 2nd Defendant’s evidence that Dr Edward Ho had told her there was “water in the lung,” the medical records do not support this assertion. Indeed, Dr Edward Ho subsequently stated on 23 September 2022 that the cause could have been water inhaled during grooming or during vomiting, demonstrating that the cause remained uncertain. If Dr Edward Ho had confirmed that there was water in the lung, he would not have said that vomiting could also be a cause. 50. I therefore find as a fact that neither Victoria nor CityU VMC made a definitive diagnosis that the Dog suffered from aspiration pneumonia, and more importantly, neither suggested that bathing was the cause. Bathing was, at most, one possible cause, but it was not the only possible explanation. 51. I further find that both the 1st and 2nd Defendants knew of this uncertainty. The 1st Defendant had direct conversations with Victoria. There is no rational basis to conclude that the 1st Defendant would fabricate information not given to her, and then relay such fabrication to the 2nd Defendant who published that post on 6 September 2022 to criticise Victoria. 52. As to CityU VMC, the 2nd Defendant had direct conversations with Dr Edward Ho and must have known that bathing was merely one of several possible causes under consideration. 53. In light of these findings, I conclude that the 2nd Defendant published the Post and the Comments (with one exception, that is Comment 4) with malice. The 2nd Defendant knew that it was not true that the veterinarians had diagnosed aspiration pneumonia as caused by bathing, and she knew that the cause of the Dog’s condition remained uncertain. Nevertheless, she proceeded to publish statements asserting, as established fact, that the Dog’s condition was caused by bathing at the Shop. In doing so knowingly, the 2nd Defendant acted with malice. 54. As to Comment 4, I find that the remark concerning the 2nd Plaintiff’s attitude was not made with malice. The audio recording of the meeting on 6 September 2022 shows that the 2nd Plaintiff said to the 1st Defendant’s son that “why do you bark at me so loudly?” (你咁大聲吠我做咩啫？). In the circumstances, I accept that the 2nd Defendant had a factual basis for making the comment. Issue 4 – Whether the Post and the Comments were published as an occasion of qualified privilege or fair comments 55. The legal principles relating to the defence of qualified privilege are well-establshed. They are set out in Jonathan Lu v Paul Chan Mo Po [2018] 21 HKCFAR 94 at §§13-14, as follows:
56. It is equally trite that qualified privilege can be defeated by malice: see §§15-30 in Johnathan Lu. 57. I have already found that the 2nd Defendant knew that the factual basis of the Post and the Comments 1 to 3, namely that the Dog had been diagnosed with aspiration pneumonia and that was caused by the bathing, was not true. In light of this knowledge, the defence of qualified privilege must be defeated by malice. It is therefore unnecessary to examine the remaining elements of the defence for these statements. 58. As to Comment 4, I find that the defence of qualified privilege succeeds. I accept that the 2nd Defendant, as a family member of a customer of the Shop, had an interest in communicating her concerns regarding the alleged rude attitude of the shop owner to other pet owners and members of the neighborhood. Those recipients correspondingly had an interest in receiving such information. The publication of this comment therefore took place on an occasion of qualified privilege. 59. The legal principles relating to the defence of fair comment are also well-established, as set out in Cheng v Tse Wai Chung (2003) 3 HKCFAR 339. The elements of the defence are:
60. I find that the 2nd Defendant’s statements in both the Post and the Comments 1 to 3 were not based on facts which were true or protected by privilege. Accordingly, the defence of fair comment cannot succeed. It is unnecessary to examine the remaining elements. 61. As to Comment 4, I find that the defence of fair comment also fails. When making the comment that the attitude of the 2nd Plaintiff was bad, the 2nd Defendant did not explicitly or implicitly indicate the facts on which the comment is based. 62. To conclude, I find that the 2nd Defendant could not rely on either the defence of qualified privilege or fair comment in relation to the Post and Comments 1 to 3. As to Comment 4, the defence of qualified privilege, but not fair comment, succeeds. Issue 5 – Whether the Defendants are liable for the tort of malicious falsehood 63. To establish a claim of malicious falsehood, the 2nd Plaintiff must prove:
64. In light of my earlier finding that the 2nd Defendant knew that the statements she published in relation to the diagnosis of the Dog and the cause of its sickness were untrue, the element of malice is satisfied. The 2nd Plaintiff’s claim in relation to the Post and Comments 1 to 3 in malicious falsehood therefore succeeds. Issue 6 – What relief, if any, should be granted to the 2nd Plaintiff 65. The 2nd Plaintiff succeeds in her claim against the 2nd Defendant for libel and malicious falsehood. I now consider the appropriate relief. 66. I first address the claim for loss of profits in the sum of HK$450,000. I have no hesitation in rejecting this claim. Apart from the 2nd Plaintiff’s bare allegation, there is no evidence whatsoever demonstrating (i) the level of income the business previously generated; or (ii) any loss of profits was in fact suffered. 67. Then the claim for HK$100,000 said to arise from cancellations of service packages is likewise rejected. No evidence was adduced regarding (i) the nature, value, or number of such packages; or (ii) that any cancellations occurred, apart from the 2nd Plaintiff’s bare allegations. 68. As regards general damages, I have considered the applicable legal principles as set out in the authorities referred to by counsel. In particular, I respectfully adopt the helpful summary provided by Master Norman Nip in Chan Harry Hung-Hay v Yip Sui Ping [2020] HKCFI 366, at §§29-36. 69. In this case, I note in particular that there is little or no evidence regarding the reputation previously enjoyed by the 2nd Plaintiff or the Shop, nor is there evidence of the alleged distress, hurt, or humiliation said to have been suffered by the 2nd Plaintiff. 70. Having considered all the authorities cited, and all the circumstances of this case including the gravity of the libel, the extent of publication, the likely effect of the statements on the 2nd Plaintiff’s reputation, and the duration of publication, I consider that an award of HK$100,000 is appropriate. 71. In addition, I award aggravated damages in the sum of HK$30,000. 72. As to injunctive relief, I consider it necessary and appropriate to grant a mandatory injunction requiring the 2nd Defendant to forthwith remove, or cause to be removed, the Post and the Comments 1 to 3. 73. I do not consider it necessary or appropriate to grant a prohibitory injunction. There is no evidence suggesting any real risk that the 2nd Defendant will publish further statements to similar effect. 74. I also decline to order the 2nd Defendant to publish this judgment in newspapers or on Facebook, or to issue an apology. There is no justification for such orders in the circumstances. DISPOSITION 75. The 2nd Plaintiff’s claim against the 1st Defendant is dismissed. 76. The 2nd Plaintiff’s claim against the 2nd Defendant succeeds. I enter judgment for the 2nd Plaintiff against the 2nd Defendant in the sum of HK$130,000, with interest at judgment rate thereon from the date of judgment to the date of payment. 77. I further grant a mandatory injunction against the 2nd Defendant in the terms set out in paragraph 72 of this judgment. In this regard, the parties have liberty to apply. COSTS [Submissions on costs] 78. I have heard the submissions on costs from the parties. 79. Ms Chan submitted that there should be no order as to costs, but she was unable to advance any reasons in support of that position. 80. Mr Siu submitted that costs should follow the event, but that the 2nd Defendant should only be ordered to pay 50% of the 2nd Plaintiff’s costs. He argued that the 2nd Plaintiff did not succeed on all causes of action, in respect of all statements complained of, nor did she obtain all the reliefs sought. 81. I am persuaded by Mr Siu’s submission and consider that a portion of the 2nd Plaintiff’s costs should not be recoverable. The 2nd Plaintiff abandoned the cause of action of procuring breach of contract only on the first day of trial. She also did not succeed in respect of Comment 4, and she failed to obtain various reliefs sought, including her claim for loss of profits. 82. Taking all matters into account, I consider that the 2nd Plaintiff should only recover 70% of her costs. 83. I therefore order that:
84. I thank counsel for their assistance.
Ms Grace Chan, instructed by Wong & Tang, for the 1st and 2nd plaintiffs Mr Stephen Siu, instructed by Jisp Cheung & Co Solicitors, for the 1st and 2nd defendants
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