TINA MICHELLE HSU v. KAM WAI FUN TORRENTE

DCCJ 1302/2021

[2022] HKDC 299

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.1302 OF 2021

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BETWEEN

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DECISION

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1.  This is a defamation suit brought by the chairlady at the material times of the management committee (MC) of the Incorporated Owners (the IO) of Greenville Gardens (the Estate) i.e. the plaintiff against the former chairlady of MC of the IO from 2007 to 2015 i.e. the defendant.

2.  Pursuant to, inter alia, O.18 r.19 and O.82 r.3, the Rules of District Court (RDC)[1], the plaintiff applied by summons dated 7 June 2021 (the Summons) to strike out parts (Impugned Parts) of Defence filed on 4 May 2021 (Defence) on the grounds that they (i) disclose no reasonable defence; (ii) are frivolous and vexatious; (iii) may prejudice, embarrass or delay the fair trial of the action; and/or (iv) are otherwise an abuse of the process of the court. The defendant filed an affidavit in opposition on 14 July 2021 (the Affidavit).

3.  On 12 October 2021, plaintiff’s solicitors gave written notice to the defendant of her 3 broad grounds of striking-out[2]. By her order dated 30 November 2021, Master June Cheung dismissed the Summons (the Order).

4.  The plaintiff appealed to set aside the Order. Hearing of this appeal was adjourned due to general adjournment of proceedings announced by the Judiciary. Directions were thus given for parties to lodge, inter alia, their written submissions for the same to be disposed of on paper.

5.  As she was at the hearing before master below, the defendant was unrepresented on this appeal. The plaintiff was represented on this appeal by Mr Jonathan Chang SC (Mr Chang) leading Mr Thomas Wong (Mr Wong). Mr Wong alone appeared for the plaintiff below.

Statement of Claim – common ground

6.  The Statement of Claim (SOC) settled by Mr Wong indorsed on plaintiff’s writ of summons has 18 pages whereas the Defence has 45 pages, comprising a total of 67 paragraphs.

7.  It is asserted in SOC, and admitted in Defence, that the IO under defendant’s chair-ladyship had appointed a contractor in 2011 to carry out various renovation works to the Estate including tiling works on its external walls. In 2016, the contractor commenced arbitration against the IO for alleged breach of contract. In 2019, the IO commenced, and continued at material times, arbitration against the contractor for costs of rectifying various work defects.

8.  It is agreed that, on or about 7 December 2020 and 4 January 2021, the defendant respectively inserted (or caused to be inserted) into the letterboxes of all the residents of the Estate a letter each (1^st Letter and 2^nd Letter respectively and collectively the 2 Letters). The 2 Letters[3] were addressed to the MC and copied to all owners of the Estate.

9.  It is further agreed that: (a) the 1^st Letter contained 9 extracts of English words quoted in paragraphs 13.1, 13.3, 13.5, 13.7, 13.9, 13.11 to 13.14 of SOC and 5 extracts of Chinese words quoted in paragraphs 13.2, 13.4, 13.6, 13.8 and 13.10 of SOC (1^st Words); and (b) the 2^nd Letter contained 3 extracts of English words quoted in paragraphs 20.1, 20.3 & 20.5 of SOC and 3 extracts of Chinese words quoted in paragraphs 20.2, 20.4 & 20.6 of SOC (2^nd Words, and 1^st and 2^nd Words collectively the Words).

10.  The Words have 20 extracts in total. They occupy pages 6 to 9 and 12 to 15 of SOC[4]. The length of individual extract varies from one line to over 10 lines. Some Chinese extracts are apparently translations of their English counterparts with same or similar contents. Differentiated by their contents, there are 12 different extracts.

Alleged Defamatory Meanings

11.  According to the plaintiff at paragraphs 15 & 16 and 22 & 23 of SOC, the Words in their natural and ordinary, and innuendo, meanings carry a total of 13 alleged defamatory meanings set out in paragraphs 15.1 to 15.7, and 22.1 to 22.6, of SOC (collectively the 13 Defamatory Meanings), which include, by way of examples, the following serious allegations that the plaintiff: -

(a) has committed and/or has caused the IO to commit multiple breaches of the Building Management Ordinance[5] (BMO) and/or the Code of Practice on Procurement of Supplies, Goods and Services issued under BMO.

(b) has engaged in and/or has caused the IO to engage in illegal, improper, unscrupulous and/or unethical conduct when hiring lawyers and consultants.

(c) has tricked, deceived and/or misled, and intended to trick, deceive and/or mislead, the owners of the Estate.

(d) intended to create mistrust and conflicts amongst the owners of the Estate.

(e) has made unfounded allegations, published false information, distorted facts and/or exaggerated the risks of the external wall tiles falling off.

(f) has poor financial management skills and/or has caused the IO to incur expenses improperly and/or recklessly.

(g) is incompetent, lacks integrity, has failed to discharge her duties as the chairlady of the MC and/or is unfit to serve as the chairlady of the MC.

Publication and damage to plaintiff

12.  According to the plaintiff, the 2 Letters referred to her[6] and, by their publication, had gravely injured her reputation and caused her subjected to hatred, contempt and ridicule[7]. The plaintiff sought to recover against the defendant for, inter alia, injunction restraining further publication of the 2 Letters and damages for libel in respect of their publication.

Defence - Background

13.  The Defence prepared by the defendant in person starts with a long section called “Background” consisting of 49 paragraphs in as many as 20 pages.

(1) The section begins with contractor selection for the renovation of the Estate, work commencement in 2011, practical completion in 2013 and disputes with contractor until mid-2015.

(2) The defendant later resigned in October 2015 and, after 2 rounds of MCs, the plaintiff took over in 2019 as chairlady.

(3) An extraordinary general meeting (EGM) was called, and held, in June 2020 resolving, inter alia, to fund an external wall defect survey.

(4) The defendant and others afterwards set up a “concerned group” and managed to collect sufficient owners’ support to call for the holding of another EGM in November 2020 in order to revoke earlier funding resolutions, which meeting was, however, postponed in the end.

(5) The section ends with the MC issuing a letter to the defendant, copied to all owners of the Estate, posing 5 questions for the defendant to answer, on 1 December 2020 (the 1/12/2020 Letter) and the MC issuing another letter on 22 December 2020 insisting on reply be given to questions raised in the 1/12/2020 Letter.

The Impugned Parts

14.  In gist, the Impugned Parts are focused on 2 pleas of justification and fair comments rolled-up together[8] and purportedly raised respectively against 1^st Words and 2^nd Words at paragraphs 60 and 64 of Defence. Unless otherwise stated below, the plaintiff by the Summons seeks to strike out the italic words from those paragraphs referred to in this section.

15.  At paragraph 60 of Defence, the defendant says that the “contents” of 1^st Words “were either true, fair/honest comments or comments which attract the defence of qualified privilege. In particular,”.

16.  At paragraphs 60.1, 60.3, 60.4, 60.5, 60.6, 60.7, 60.8, 60.9 and 60.10 of Defence, the defendant inserted a 3-column table into each of them (the 9 Tables) in response to “statements” of 1^st Words quoted in paragraphs 13.1 & 13.2, 13.3, 13.5 & 13.6, 13.7 & 13.8, 13.9 & 13.10, 13.11, 13.12, 13.13 and 13.14 of SOC.

17.  Save for 2 pages occupied by paragraph 60.2 below, the 9 Tables run from pages 26 to 41 of Defence. The 9 Tables all have their 2^nd columns from left headed “Facts” and their 3^rd columns headed “Comments”. Both columns were filled with many words of small fonts in single-line spacing, some of them are references to earlier paragraphs in the “Background” section. The plaintiff seeks to strike out paragraphs 60.1, 60.3 to 60.10 (inclusive of the 9 Tables) from Defence.

18.  At pages 28 & 29 of Defence, the defendant at paragraph 60.2 specifically replied to question No.5 posed by the MC in the 1/12/2020 Letter. The plaintiff seeks to strike out entire paragraph 60.2 from Defence.

19.  At paragraph 62 of Defence, the defendant says: “For the same reasons stated in paragraphs 60.1 to 60.10 above, the Defendant disagrees with the interpretation taken by the Plaintiff in her Paragraph 15 and 16 in respect of the Reply Letter (bold supplied for emphasis)”.

20.  At paragraph 64 of Defence, the defendant says that the “contents” of 2^nd Words quoted in paragraph 20 of SOC “were either true, fair/honest comments or protected by the defence of qualified privilege. In particular,”.

21.  At paragraphs 64.1, 64.2 and 64.3 of Defence, the defendant inserted a 3-column table into each of them (the 3 Tables) in response to “statements” of 2^nd Words quoted in paragraphs 20.1 & 20.2, 20.3 & 20.4, and 20.5 & 20.6 of SOC. The 3 Tables are similar to the 9 Tables in format and contents described in [17] above. They occupy pages 43 & 44 of Defence. The plaintiff seeks to strike out paragraphs 64.1 to 64.3 (inclusive of the 3 Tables) from Defence.

22.  At paragraph 66 of Defence, the defendant says that: “For the same reasons mentioned in paragraph 64 above, the interpretation taken by the Plaintiff in her Paragraphs 22 and 23 are disputed. Further, the statements represent truthful, fair and/or honest comments and are protected by the defence of qualified privilege (bold supplied for emphasis)”.

Principles on appeal from master

23.  An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will of course give the weight it deserves to the previous decision of the master, but he is in no way bound by it: see paragraph 58/1/2, Volume 1, Hong Kong Civil Procedure 2022 (HKCP).

Law & principles on striking-out

24.  O.18 r.19(1) of the RDC reads: “The Court may, either of its own motion or on application, at any stage of the proceedings order to be struck out or amended any pleading …., on the ground that— (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be”.

25.  It is only in plain and obvious cases that the court should exercise its summary power to strike out pleadings. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law. The claim must be obviously unsustainable, the pleading unarguably bad, and it must be impossible, not just improbable, for the claim to succeed. The applicant bears the burden to show a plain and obvious case in order to strike out the plaintiff’s claim: see paragraph 18/19/4 of HKCP.

26.  A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered. So long as the statement of claim or the particulars disclose some cause of action, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out: see paragraph 18/19/5 of HKCP.

27.  Where a pleading is defective only in not containing particulars to which the other side is entitled, application should be made for particulars, and not for an order to strike out: see paragraphs 18/19/5 & 18/19/8 of HKCP.

28.  If the defendant does not make it clear how much of the statement of claim he admits and how much he denies, his pleading is embarrassing. That a statement of claim embraces several causes of action is not embarrassing, if they are distinctly pleaded. Similarly for inconsistent defences. A pleading is not embarrassing because the law stated or reasons alleged may be bad. Unless it is clear on the face of allegations that they are irrelevant, they will not be struck out on this ground. A statement will not be struck out merely because it is unnecessary, so long as it is otherwise harmless. It is no part of one’s duty to reform opposite party’s pleadings, but if wholly immaterial matter be set out in such a way that the applicant must plead to it, and so raise irrelevant issues which may involve expenses, trouble and delay, then the irrelevant matter will be struck out, as it will prejudice the fair trial of the action: see paragraph 18/19/8 of HKCP.

29.  O.18 r.19, RDC, also empowers the court to amend the pleading. If a statement of claim does not disclose the cause of action relied on, an opportunity to amend may be given, even though the formulation of the amendment is not before the court. However, unless there is reason to believe that the case can be improved by amendment, leave will not be given: see paragraph 18/19/4 of HKCP.

Principles on pleadings in general

30.  The basic objective of pleadings is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. It will be not acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced: see Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR, 663 at [21].

31.  Pleadings need to be clear — because they are the foundations on which the rest of the action stand. The reason why parties must ensure that the real issues in dispute are defined in advance in the pleadings is so that there is an unambiguous framework for the many interlocutory steps that follow, such as discovery, interrogatories and witness statements, as well as for the conduct of the trial itself. A statement of claim should make it clear to the reader what the plaintiff’s cause of action is, and it should set out the material facts which provide the basis for him to pursue that cause of action. It is not adequate for a plaintiff just to set out his story extensively and then to allege a number of breaches of rights for which he claims relief. Put another way, it should not be left to the reader to guess how the dots should be connected: Chan Kong v Chan Li Chai Medical Factory (Hong Kong) Ltd [2009] 2 HKLRD 455 at [15].

32.  Although an unrepresented litigant may not be expected to use legal terminology, that does not relieve him of the need to comply with the rule that pleadings have to be clear. A litigant in person cannot simply pour out his story and ask the court to sort out his legal rights because he himself is ignorant what rights may have been breached or how. A pleading cannot be like a set of instructions to the judge as if he were the unrepresented litigant’s counsel. That is not the function of the court in an adversarial system. Having said that, a court is entitled in the exercise of its discretion to be a little more lenient to an unrepresented litigant in giving him an opportunity to get things right: Chan Kong, supra, at [17].

Law & principles on pleadings in defamation cases

33.  Under O.18 r.8, RDC, a party must in any pleadings subsequent to a statement of claim plead specifically any matter … (a) which he alleges make any claim … of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raise issues of fact not arising out of the preceding pleading.

34.  A defendant must plead justification specifically. A plea of justification should set out the facts relied upon in support thereof, so as to comply with O.18 r.8, RDC. The defendant must always make it quite clear how much of the alleged libel he justifies; if his plea leaves this in doubt, it will be struck out as embarrassing: see paragraph 18/8/10 of HKCP.

35.  A plea of justification must relate to the words which are complained of. A defendant who relies on the defence must show that the defamatory imputation conveyed by those words is true. In advancing a plea of justification, the defendant necessarily takes a view as to the meaning of the words complained of. His case is that the words so understood are true. Similarly, in relation to the defence of fair comment, the defendant contends that the words so understood contain honest comment on a matter of public interest based on facts which are true. It is therefore necessary, in assessing the viability of these defences, to identify the defamatory meaning or meanings sought to be justified or made the subject of fair comment: Mak Shiu Tong v Yue Kwok Ying & Another (2004) 7 HKCFAR 228 at [18] & [19].

36.  A defendant may or may not agree with the plaintiff’s pleaded meanings. If he does not agree, and if he does not raise pleas of justification or fair comment, he may, but is not required to, plead a positive case as to what he says is the true meaning of those words. However, the position is different where a defendant seeks to rely on justification or fair comment. A defendant is entitled to seek to justify any reasonable meaning of the words published which a jury, properly directed, might find to be the real meaning. His pleadings must make it clear what meaning he is seeking to justify. A defendant who pleads justification must do so in such a way as quite clearly, without circumlocution or obfuscation, to inform the plaintiff and the court of precisely what meaning or meanings the defendant may seek to justify: Mak Shiu Tong, supra, at [21] - [23].

37.  By parity of reasoning, when fair comment is pleaded, the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence: Mak Shiu Tong, supra, at [24].

38.  The ingredients of the defence of fair comment are fivefold. First, the comment must be on a matter of public interest. Second, the comment must be recognizable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Third, the comment must be based on facts which are true or protected by privilege. Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader should be in a position to judge for himself how far the comment was well founded. Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: Cheng & Another v Tse Wai Chun (2000) 3 HKCFAR 339, 347C-I.

39.  O.82 r.3(2) of the RDC reads: “Where in an action for libel … the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true (bold supplied for emphasis)”.

Fresh hearing of the Summons

40.  As the defendant has urged me in her written submissions, I have considered, and also respect, the decision of master below. It is, however, not binding on me. And the issue on this appeal is not whether the master is entitled to decide, or could have decided, the Summons as she did. As it was explained in [23] above, I am obliged by law to deal with the Summons as if it comes before me for the first time, and, of course, bearing in mind at all times such principles of striking out quoted in [25] to [29] above.

Plaintiff’s 3 objections made out

41.  In her written submissions, the plaintiff has advanced the same 3 grounds in [3] above to suggest that defendant’s plea on justification and fair comment are plainly and obviously defectively pleaded and that the Impugned Parts must be struck out.

42.  Firstly, the plaintiff submitted that the defendant had not identified the defamatory meaning(s) of the Words that is/are sought to be justified and/or made the subject of fair comment.

43.  The defendant countered at paragraph 10 of her written submissions that, if one reads Defence “with due patience”, one will notice that she “does not seek to give those statements meanings other than those an ordinary reasonable person may perceive upon reading them, even if they are exactly meaning what is pleaded by the plaintiff (bold supplied for emphasis)”.

44.  This Court begs to ask the defendant (1) what, according to her, an ordinary reasonable person may perceive the Words to mean upon reading them; and (2) if she really agrees with the 13 Defamatory Meanings pleaded by the plaintiff or not. With respect, she failed, I think, to give any positive answer to these obvious queries posed by her own submissions.

45.  Having read Defence repeatedly and compared it against SOC carefully, the plaintiff is, I think, right to submit that (1) the defendant “disagrees with”, and “disputed”, the 13 Defamatory Meanings pleaded by the plaintiff (or the “interpretation” of the Words taken by the plaintiff) in SOC[9] and that (2) the 9 Tables and the 3 Tables were prepared by her in response to the Words (or “statements”) quoted by the plaintiff and, I would add, as her “reasons” for her disagreement with, and disputing, plaintiff’s “interpretation” of the Words.

46.  The defendant in paragraphs 7 and 17 of her written submissions says that the Words were not defamatory (and said at paragraph 54 of the Affidavit that her intention is to dispute that any of the Words was defamatory).

47.  But justification is, in effect, a further attack on the claimant by re-asserting the truth of what was published: Mak Shiu Tong, supra, at [42][10]. A defendant can only justify defamatory meaning(s). A plea of justification in respect of a non-defamatory meaning is both irrelevant and embarrassing: Au Yee Ming Ivan v Ng Fei Tip, unreported, DCCJ No.4595/2008, 25 August 2010, at [106].

48.  The defendant had, importantly, gone beyond simple denial of the 13 Defamatory Meanings in Defence. As the Court of Final Appeal has decided in Mak Shiu Tong, supra, in [36] above, a defendant who elected to plead justification and fair comment in Defence must spell out with precision the defamatory meanings of the Words that she was seeking to justify or was made the subject of her alleged comment.

49.  The defendant had, I think, failed to do so in Defence. Nowhere can one find her attributing to the Words (or any of the Words) in Defence the 13 Defamatory Meanings or any or any combination(s) of them (not even by way of alternative to her denial of them) or some other defamatory meanings different from them.

50.  Plaintiff’s first submission in [42] above is therefore, I think, correct.

51.  By way of consequence of defendant’s fatal omission to plead defamatory meanings of the Words in Defence, her 2 pleas of justification and fair comments in Defence are, I think, unarguably bad and liable to be struck out as disclosing no reasonable defence under O.18 r.19(1)(a), RDC: see Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd [1996] 4 HKC 519, 523F,532I-533A; Tam Heung Man v IO of Lung Poon Court [2019] HKDC 401, at [28] & [29]; Au Yee Ming Ivan, supra, at [103] - [107] & [200].

52.  I move on to consider the other 2 submissions made by the plaintiff. Her second one is that the defendant had not identified which parts of the Words are statements of fact and opinion. And her third one is that the pleas in the 9 Tables and the 3 Tables are unintelligible, ambiguous and embarrassing.

53.  In view of the different ingredients of justification and fair comment explained in [35] and [38] above, I cannot but agree with plaintiff that there is crucial distinction between statements of fact and opinion. For “rolled-up” pleas of justification and fair comment, O.82, r.3(2), RDC, I also agree, requires the pleader to give particulars stating which parts of the words complained of are statements of fact. And as the Court of Final Appeal required in [37] above, a pleader who pleads fair comment must spell out with sufficient precision the comment to enable the opposite party to know the case he/she has to meet.

54.  In response to plaintiff’s 2 submissions at [52] above, the defendant first stressed at paragraph 9 of her written submissions that she “knew” she “had to address each and every of the 13 (sic) statements complained of separately” and she had “segregated facts from comments/opinion by way of presenting them in a table form (italics and bold supplied for emphasis)”.

55.  She emphasized that the Defence has been made clear and accurate as far as she could make of it. The plaintiff, she complained, has not considered or read Defence meticulously enough to understand it. Whether the Impugned Parts are so unintelligible, ambiguous and embarrassing that they ought to be struck out, she argued, ought to be decided at trial and not now.

56.  I propose to examine by way as examples below the opening paragraphs of the Impugned Parts so as to illustrate why I agree with the plaintiff’s 2^nd and 3^rd submissions.

57.  I start with paragraph 60 of Defence. By putting down there the “contents” of 1^st Words “were either true, fair/comments or comments which attract the defence of qualified privilege”, the defendant had not, I think, identified which of the 14 extracts of 1^st Words, and which part of each extract, are statement of fact as opposed to statement of opinion. The defendant ended this paragraph with the words “In particulars,”, presumably to use sub-paragraphs below to address individual extract of 1^st Words.

58.  Paragraph 60.1 of Defence by its words deals specifically with the statements, or the 1^st and 2^nd extracts of 1^st Words, quoted in paragraphs 13.1 & 13.2, whose English and Chinese respectively reads as follows:

(a) “The current MC members are very ignorant in building contracts and BD procedure and have asked very silly questions merely intending to discredit previous MC members involved in the renovation project” (1^st Extract);

(b) “現屆業委會對建築合同和屋宇署程序很無知,不做好功課,發表無聊問題,旨在抹黑和推卸責任給前委員!” (2^nd Extract).

59.  The defendant then presented in paragraphs 60.1.1 to 60.1.5 below the first of the 9 Tables (the 1^st Table).

(a) Reading all contents of the “Facts” column of the 1^st Table, the defendant had not identified which words of 1^st and/or 2^nd Extract(s) are, according to her, statements of fact (she instead put down matters other than words of 1^st and 2^nd Extracts^[11]).

(b) Reading all contents of the “Comments” column of the 1^st Table, the defendant had also not identified which words of 1^st and/or 2^nd Extract(s) are, according to her, statements of opinion (judging from paragraphs 55.1 to 55.3 of the Affidavit^[12], she was, I think, purporting to raise certain arguments or submissions^[13] from the matters stated on the left column and later used them as “reasons” in paragraph 62 for disagreeing with plaintiff’s “interpretation” of 1^st Words).

60.  The defendant next put down paragraph 60.2 which specifically deals with Question 5 posed by MC in the 1/12/2020 Letter.

(a) The said paragraph had not been stated to be in response to statements of any particular extract of 1^st Words (nor stated to be made in respect of which one(s) out of the 3 positive defences purportedly raised at paragraph 60 above). Is this not ambiguous?

(b) It had not identified which words of such individual extract of 1^st Words are statement of facts and opinion, if it related to justification and/or fair comment at all.

(c) Judging from paragraph 56 of the Affidavit, the defendant was, I think, purporting to raise again certain arguments or submissions from the said Question 5 or the 1/12/2020 Letter.

61.  The defendant went on at paragraph 60.3 by presenting at paragraphs 60.3.1 to 60.3.7 a 3-page-long 2^nd table out of the 9 Tables to deal with the 3^rd extract of 1^st Words (or “statement”) quoted in paragraph 13.3, which reads in English: “The MC during 2011-4/2015 had controlled the renovation budget tightly and left $12M in the Renovation Fund when they finished the tenure. The current MC members have used it up and looked for further contribution from owners” (3^rd Extract)[14].

62.  One finds in “Facts” column of paragraph 60.3.1 these words: “MC during 2011-4/2015 did have controlled the refurbishment budget tightly and left around $12M in the Refurbishment Fund when they finished tenure (1^st Sentence). Costs for variation orders were limited to less than 5% of the contract sum, well below the 10% contingency allowance (2^nd Sentence) (italics supplied)”

63.  Except for the italic words, 1^st Sentence is identical to the first sentence found in 3^rd Extract. Did the defendant identify those words of 1^st Sentence as a statement of fact made by her in 3^rd Extract or did she put forwards all those matters in both 1^st Sentence and 2^nd sentence in “Facts” column as facts and matters in support of some other statement of fact she made in 3^rd Extract? Is this not ambiguous?

64.  One moves to the right to look at the corresponding “Comments” column of paragraph 60.3.1, which reads “it was a true and fair/honest comment (bold and italics supplied for emphasis)”.

(a) The first question that arises is what the word “it” referred to. Does it refer to 3^rd Extract? Does it refer to 1^st Sentence also appearing as first sentence of 3^rd Extract, except for its italic words? Does it refer to 2^nd Sentence? Or does it refer to both 1^st and 2^nd Sentences (but 2^nd Sentence never appeared in 3^rd Extract)? Is this not ambiguous?

(b) The 2^nd question that arises is whether, by her use of the word “and”, the defendant is suggesting that whatever words she referred to are a statement of fact as well as statement of opinion? However, she could not, one thinks, run justification and fair comment simultaneously for the same words[15]. Is this not embarrassing?

65.  I have thoroughly and meticulously read and considered the rest of the 9 Tables and the 3 Tables (and the remainder of the Impugned Part). While there are a small number of instances where the defendant might have perhaps identified a few statements of opinion in the Words by way of quotation marks or otherwise[16], the remainder of the Impugned Parts are, I would point out, also loaded with extraneous, irrelevant or immaterial matters, arguments or submissions, and ambiguous and embarrassing pleas[17] like the many examples I have illustrated and explained above.

66.  Overall speaking, the defendant had not, I regret to say, by her use of tables in the Impugned Parts, segregated statements of fact from statements of opinion in each of the 20 extracts of the Words nor identified them distinctly and respectively so as to make clear to the reader her pleas of justification and fair comment as she claimed in her written submissions. These tables had not been made clear and accurate as she claimed either.

67.  Hence, the plaintiff has, I think, made good her 2^nd and 3^rd submissions in [52] above too.

68.  Considering plaintiff’s all 3 objections as a whole, if it is practical at all, it would be, in my views, very difficult, time-consuming and troublesome for plaintiff’s legal team to plead by way of reply to these 2 defective pleas of justification and fair comments purported raised in Defence.

69.  Had plaintiff’s legal team managed to so do with great difficulty, expenses and time, it would also be, in my view, a futile and wasteful exercise.

70.  Such problems of the 2 pleas of justification and fair comment in Defence identified by the plaintiff are, I must point out, not mere lack of particulars. They cannot, I think, be cured by their mere provision.

71.  Absent parties’ being focused on defamatory meanings of the Words sought to be justified or made subject matter of fair comment and absent clear distinction, and clear demarcation, of statement of fact and opinion in the Words, the issues that the law requires to be defined clearly for the said 2 positive defences to be raised would, I think, not be so defined. And parties would instead get lost in “dark holes” of extraneous or immaterial matters other than the 13 Defamatory Meanings of the Words sued upon by the plaintiff.

72.  Once the parties start on the wrong track above, there exists, I am afraid, much room for possible future misunderstanding, disputes and arguments in future interlocutory applications like discovery and interrogatories, if trial preparations like preparation of witness statement are not made more difficult and if problems are not caused to the trial itself.

73.  On general principles of striking-out at [28] above, I am also satisfied that the continued presence of the Impugned Parts with Defence may prejudice, embarrass or delay the fair trial of this action in terms of O.18 r.19(1)(c), RDC[18].

Exercise of my discretion

74.  The defendant stressed in her written submissions that she is a layman acting in person in this action. She claimed that she “would be deprived of a fair hearing” if the plaintiff succeeds in the Summons, for that would deprive the Court receiving all salient facts, evidence and information at trial. It is unsatisfactory and disproportionate to strike out Defence as sought in the Summons. The Impugned Parts include, she added, “justifications for the defence of qualified privilege”.

75.  As was explained in [30] & [31] above, pleadings exist for good reasons for real issues in dispute to be properly defined to serve as a proper foundation for the action to proceed to its conclusion expeditiously on the right track. One purpose of the power of striking-out, one thinks, is to ensure that pleading rules are observed such that pleadings could achieve such indispensable function.

76.  Even if the Summons be allowed, this action will, I wish to point out, continue. The plaintiff had not, under O.18 r.19, RDC, applied to strike out the entire Defence and to have judgment entered in her favour. The effect of the Summons, if allowed, is that only the Impugned Parts will be struck out from Defence. The rest of Defence will stand.

77.  Assuming that Defence remains in the same struck-out form until trial, the limited effect of the Summons, if allowed, is that the defendant cannot rely at trial the 2 positive defence of justification and fair comments. The plaintiff is, I wish also to point out, still obliged to prove, inter alia, the 13 Defamatory Meanings of the Words and reference of the 2 Letters to her in order to make good her case of libel at trial against the defendant.

78.  Defendant’s plea of “qualified privilege” raised at paragraphs 60, 64 and 66 of Defence will, I note, also survive for determination at trial even after the Summons is allowed, though a number of references to it inside the 9 Tables will disappear. Such references had unfortunately been mixed up with objectionable pleas of justification and fair comment liable to be struck out and the defendant had not offered any proposal how the objectionable parts could be severed from the unobjectionable parts to allow the latter to remain. If in so far these unobjectionable parts are particulars that allow the claim of qualified privilege to arise, I see no reason why she could not provide the same to plaintiff in due course by way of voluntary particulars.

79.  More importantly, the defendant can apply any time before or even at trial to amend (or re-amend) Defence (or amended Defence) to reintroduce properly pleaded defence of justification and fair comment, and/or to give full particulars of her various claims of qualified privilege (if its long and detailed “Background” section had not already so provided). The decision of that rests with her and such independent legal advice she sees fit to seek and I express no comments on merits or otherwise of such application(s).

80.  All in all, I have no doubt that the defendant will continue to have a fair trial of this action even after the Summons is allowed (but that the plaintiff will be embarrassed, prejudiced and delayed the fair trial of this action if Defence be allowed to remain in its existing objectionable and ambiguous form).

81.  In line with principles of striking-out at [29] above, I have also given consideration as to whether or not I should not strike out the Impugned Parts but grant leave (or an opportunity) to the defendant to amend Defence to rectify the matters complained of by the plaintiff.

82.  In the end, I have decided against it.

83.  Notwithstanding the defendant was made known of plaintiff’s 3 grounds of objection since October 2021, she made no concession at all in her written submissions before me and she had not seen fit to formulate any draft amended Defence for my consideration. Had she had the ability to formulate draft amendments properly, one also wonders how long it takes for her to complete this task.

84.  All things considered, including the underlying objectives set out in O.1A, r.1, RDC, it is, I think, just, proportionate and convenient for me to exercise my discretion under O.18 r.19(1)(a) & (c), RDC, now to strike out the Impugned Parts as sought at paragraph 1 of the Summons on the grounds that they disclose no reasonable defence and may prejudice, embarrass or delay the fair trial of this action.

Disposition

85.  I therefore allow this appeal and make the following orders:

(a) the Order be set aside;

(b) order in terms of paragraph 1 of the Summons as amended per grounds (i) & (iii) only; and

(c) the defendant do within 28 days file and serve Amended Defence removing the struck-out parts.

86.  As for plaintiff’s filing and service of Reply, time has already expired for the same pursuant to paragraph 1 of order of Master Jocelyn Leung dated 17 June 2021. If further time extension is sought, the plaintiff may take out time summons or seek defendant’s consent for the same. I make no order for the same on this appeal.

Costs

87.  Costs normally follow the event. And the defendant had not submitted to the contrary in her written submissions.

88.  I therefore set aside the costs order made by Master June Cheung for the Summons below and order that costs of this appeal and costs of the Summons (including all reserved costs) below be both paid by the defendant to the plaintiff forthwith and summarily assessed at $158,026 in total.

89.  The respective 2 sums of $464,436 (with 2 counsels allowed) and $320,436 (with 1 counsel allowed) claimed in plaintiff’s statement of costs for summary assessment dated 18 March 2022 are, I agree with the defendant, grossly excessive on District Court scale.

90.  Having considered Defendant’s lists of objection dated 25 March 2022, I have made the following assessments and deductions i.e.

(a) I allow only the fees of Mr Wong for this appeal and the Summons below. I disallow Mr Chang’s fee on this appeal.

(b) 3 solicitors and 3 clerks are, I think, too many in terms of total number of fee earners for the Summons and this appeal.

(c) I disallow all fees claimed by PK as being exorbitant on party-to-party basis. Instead of the respective hourly rates of $3,800 and $3,000 agreed by defendant for ML and YUJASM, I will only allow for the fee of one notional instructing solicitor to Mr Wong below and on this appeal at an hourly rate of $3,480^[19]. Notwithstanding the defendant agreed $1,300 hourly rate for WCY, I will only allow for the fee of one notional litigation clerk below and on this appeal at an hourly rate of $860^[20].

(d) I disallow item D3 (general care & conduct) and D4 (preparation of this statement of costs). The latter item is not allowable for summary assessment under paragraph 13 of PD14.3. For the former, we are not taxing a bill issued after trial covering the whole action from its beginning to its end and, in my view, no general care & conduct ought to be called (or paid) for.

(e) I allow a total of 10 hours for the notional instructing solicitor and 1 hour for the notional litigation clerk. The total time claimed by the plaintiff is, I think, excessive[21].

(f) The total sum allowed therefore comes up to $158,026 i.e. $3,366 (for all B items) + $3,480 x 10 hours + $860 x 1 hour + $63,000 + $56,000.

91.  Finally, I thank the defendant, Mr Chang and Mr Wong for their written submissions.