TSANG KWONG CHIU KEVIN v. TANG WING HANG

HCA 619/2018

[2018] HKCFI 1479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 619 OF 2018

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REASONS FOR DECISION

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1.  This was the Plaintiff’s application for an interlocutory injunction against the Defendant to restrain him from publishing the following defamatory statements :

騙徒首領曾廣釗

洗錢造市出賤招

老翻盜版 騙眾生

大波銷售慘被離職

朱穎欣宴客蹂躪過後得來生泡疹 (1^st Defamatory Statements)

老千嘍囉曾廣釗

洗錢造市出賤招

…

MeToo無知朱穎欣

…

偷呃拐騙無得輸 (2^nd Defamatory Statements)

2.  At the end of this morning’s hearing, I made an order in favour of the Plaintiff.  These are my reasons. 

3.  It was self-evident that these Defamatory Statements were seriously damaging to the Plaintiff’s reputation.  The only issue raised in the Defendant’s evidence in opposition to this application was his denial that the Statements were published by him.  It was suggested by him that one Mr Lo might be the person behind the publication of the Statements. It was said that Mr Lo was the ex-boyfriend of Ms Chu, the lady referred to in both Defamatory Statements by name, and with whom the Plaintiff had unresolved financial disputes. 

4.  Before I deal with the material facts, I should point out, firstly, that although the 3^rd and 4^th sentences of the 1^st Defamatory Statements referred explicitly only to Ms Chu, in the context of those Statements and how they were published, they suggested that the Plaintiff was associated with the offering of sexual favour to client(s).  Indeed, he was referred to as the leader of the fraudsters. 

5.  Secondly, the 2^nd Defamatory Statements appeared, on 6 pull-up banners, under a photograph of the Plaintiff.  The reference in the 3^rd sentence to Ms Chu, read in the context, suggested that she was the victim of the Plaintiff’s sexually harassment. 

6.  Thirdly, although the 4^th sentence appeared after an innuendo about the companies associated with the Plaintiff, read in the context, it suggested that the Plaintiff was an unscrupulous fraudster. 

7.  The material facts can be succinctly stated as follows.  In 2015, a company by the name of Orange Financial Printing Ltd (Company) was set up to carry out financial printing business.  The Plaintiff was the funder of that business and the Defendant was employed by the Company as its Managing Director. 

8.  The business was not profitable and in 2017 the parties had various disagreements over the running of the same.  These disagreements were not relevant for the present purpose, nor was it possible for the court to resolve them on affirmations.  However, on 15 November 2017, the Defendant’s employment was terminated for misconduct.  On 18 December 2017, the Defendant commenced proceedings in the Labour Tribunal (Tribunal) against the Company for payment in lieu of termination notice. 

9.  On 29 December 2017, 10 pull-put banners carrying the 1^st Defamatory Statements appeared in various locations in Central, including outside the building in which the Company was situated. There could be little doubt that the design was to inflict the maximum damage to the Plaintiff’s reputation. 

10.  On the same day, the Plaintiff reported, inter alia, the publication of the 1^st Defamatory Statements by the Defendant to the police.  In his presence, an officer telephoned the Defendant, and warned him not to further publish the 1^st Defamatory Statement.

11.  Despite the said warning by the police, in that evening at 20:56 the Defendant sent to one Mr Yip a photograph of the pull-up banner showing the 1^st Defamatory Statements.  It was, at least, the second occasion where the Defendant had sent a photograph of the banner to another person.  The evidence showed that he sent such a photograph to an ex-colleague at 09:19 that day.   

12.  On 10 January 2018, the Tribunal adjourned the Defendant’s proceedings sine die pending police investigation into alleged misconduct committed by him against the Company. 

13.  On about 13 February 2018, the Tribunal declined the Defendant’s request to have the proceedings resumed pending the completion of police investigation. 

14.  On 20 February 2018, 6 pull-up banners bearing the 2^nd Defamatory Statements appeared in Central. 

15.  On 12 April 2018, after the direction hearing of this application on 23 March 2018, a further banner bearing the 2^nd Defamatory Statements appeared at a busy footbridge in Central. 

Analysis

16.  Normally, in an application for interlocutory injunction, it is unnecessary for the court to consider the merits of the applicant’s case once it has been shown that there is a serious issue to be tried.  Instead, the court will focus on where the balance of convenience lies in deciding whether to impose a restraining order: see American Cynamid Co v Ethicon Ltd [1975] AC 396. 

17.  However, it is trite that special considerations apply to defamation cases.  In Chan Shui Shing Andrew v Ironwing Holdings Ltd [2001] 2 HKC 376, Deputy High Court Judge Poon (as he then was) held, at 378D-379B, that :

(1)  The jurisdiction to grant interlocutory injunctions in defamation cases is of a delicate nature which ought only to be exercised in the clearest cases.  

(2)  The importance of leaving free speech unfettered is a strong reason in cases of defamation for dealing most cautiously and warily with the granting of interim injunctions.

(3)  Thus, the court will only grant an interim injunction where:

(a)  the statement is unarguably defamatory;

(b)  there are no grounds for concluding the statement may be true;

(c)  there is no other defence which might succeed;

(d)  there is evidence of an intention to repeat or publish the defamatory statement.

(4)  Where the defence of justification or fair comment is raised by the defendant, the burden is on the applicant to show that the defence will not succeed.

18.  The first issue to be resolved is the threshold by which the Plaintiff must satisfy this court that the Defendant was responsible for the publication of the Defamatory Statements.

19.  In Wang Lin Jia v Ng Kai Cheung, HCA 113/2008, 18 February 2008, at §19, it was held by Deputy High Court Judge Carlson that where the defendant had denied that he was the publisher of the defamatory statements, the plaintiff must show in an application for interlocutory injunction and on conflicting affirmations that it was “more likely than not” that the defendant was the publisher of the defamatory statements.

20.  Appearing for the Plaintiff, Mr Lai submitted that this court should depart from the approach set out in Wang Lin Jia. A serious issue to be tried should be all that the Plaintiff needed to demonstrate in relation to the identity of the publisher. 

21.  To begin with, there is authority from the Court of Appeal that the American Cyanamid criteria are applicable to the grant of an interlocutory injunction in a defamation case, although “special considerations” are to apply: see Cheng Chi v Chan Hok Man [1984] HKC 35 at 41G, per Roberts CJ.

22.  I agree with Mr Lai that the justification for the “special considerations” is the importance of free speech: see para 17(2) above and Greene v Associated Newspapers Ltd [2005] QB 972 at §§42-57, per Brooke LJ. 

23.  In Bonnard v Perryman [1891] 2 Ch. 269, which laid down the high threshold to be satisfied in an application to restrain defamation by interlocutory injunction, Lord Coleridge CJ held at 284 :

“The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and unless, an alleged libel is untrue, there is no wrong committed; …”

24.  In the present case, the Defamatory Statements were clearly defamatory and there was no substantive defence, such as justification, fair comment or privilege, before the court.  It is therefore difficult to see how the freedom of speech could be engaged.  This is to be contrasted with a case where the respondent comes to court and says that the alleged defamatory statement made by him will be justified at the trial. 

25.  If the Defendant was indeed the publisher of the Defamatory Statements, absent any substantive defence, he would be liable to the Plaintiff for libelling him.  If he was not, his right to free speech did not come into play. 

26.  In the premises, I am unable to see the justification for applying a higher threshold in considering whether the Defendant was the publisher of the Defamatory Statements for the present purpose.

27.  I also agree with Mr Lai that, upon analysis, Cheng Chi is consistent with the above analysis.  In that case, the plaintiffs sued the members of the management committee of a building for publishing, or permitting to be published, certain notices bearing defamatory statements and applied for a mandatory injunction requiring them to have the notices bearing such statements removed.  Power J granted an order to have the defamatory materials removed.  The defendants appealed against such order.

28.  Before the Court of Appeal, the defendants denied that they had had anything to do with the posting of the notices, and it was conceded by their counsel that some of the words used clearly were defamatory (37H-I).  In concluding that the interlocutory injunction was correctly granted, the Court of Appeal held that (a) the American Cyanamid decision did not affect the special considerations which were applicable to defamation cases (41G); and (b) such considerations were satisfied on the facts of that case because the words complained of in the notices were so clearly defamatory (41B).

29.  There was no separate discussion as to the relevance of the defendants having denied that they were the publisher of the defamatory statements.  After concluding that the statements were unarguably defamatory and no defence applied, the Court of Appeal applied the American Cyanamid requirements, and concluded that the balance was in favour of granting the injunction because “the main object of these injunctions is to prevent the continuance, or renewed publication, of matter that is clearly libellous, in a public place” (42B).

30.  In respect of the reference to “no other defence which might succeed” (see para 17(3)(c) above), it should in my view be understood as a reference to any substantive defence which may be relied upon in a defamation action, such as justification, fair comment or privilege.  This is consonant with the approach set out above.  In other words, this criterion should not apply to an isolated factual issue whether the respondent had published the defamatory statement. 

31.  In light of the foregoing analysis, I am unable to agree with the approach taken in Wang Lin Jia (see para 19 above).  In addition, it is quite difficult to determine a factual issue which, by definition, has been denied on oath by the respondent based only on the written material before the court.  Generally, it will not be appropriate for the court to attempt to try a case on affidavits. 

32.  For these reasons, I agree with Mr Lai that the threshold in question is that of serious issue to be tried. 

33.  On the material before the court, I am in no doubt that such a threshold, at the very least, has been met in respect of the identity of the publisher.  Firstly, the Defamatory Statements referred to the Defendant as a person with a good heart who was disqualified (“DQ”) by the Plaintiff.  It clearly suggested that the person who published the Statements was aggrieved by the disqualification, and I do not see why Mr Lo, assuming that he knew about the dismissal of the Defendant, would have taken up a cause for him. 

34.  Secondly, the Defamatory Statements were published at a time when the Defendant was immersed in disputes with the Plaintiff and/or the Company.

35.  Thirdly, the Defendant was quick to disseminate the 1^st Defamatory Statements to his ex-colleague (see para 11 above).  In his evidence, the Defendant had admitted to having “share the photos to (sic) my friends to vend my frustration and anger”.

36.  Finally, the evidence suggested that Mr Lo would not have known about the termination of Ms Chu’s employment with the Company, and therefore was unlikely to be the person behind the Defamatory Statements.

37.  Turing to the American Cyanamid considerations, I am satisfied that there was evidence of an intention on the part of the Defendant to repeat the Defamatory Statements given his own admission (see para 35 above) and the publication of the 2^nd Defamatory Statements after the first hearing of this application (see para 15 above).  

38.  There can be little doubt that the Defamatory Statements had caused irreparable damage to the Plaintiff, and further damage will be caused if such activity is not restrained.  It is trite that damage to reputation cannot not be adequately compensated by damages. 

39.  On the other hand, given that the Defamatory Statements were clearly defamatory and there was no substantive defence relied upon by the Defendant, it is difficult to see what inconvenience he may suffer by reason of the grant of the injunction sought.

40.  In any event, the Plaintiff was prepared to provide an undertaking as to damages, which should address any potential damage arising from the grant of the injunction.

Conclusions

41.  For these reasons, I granted the injunction sought in the Plaintiff’s Summons filed on 19 March 2018 with amendments and subject to his undertaking as to damages. 

42.  As for costs, I made an order that the costs of this application be the Plaintiff’s costs in the cause.

43.  Last but not least, I am grateful to counsel for his assistance.