LO SAM SHING v. LI FONG

CACV 71/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 71 OF 2014

(ON APPEAL FROM HCA 1803 OF 2011)

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JUDGMENT
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Hon Cheung JA:

1. I agree with the judgment of Chu JA and the orders she proposes to make.

Hon Yuen JA:

2. I agree with the judgment of Chu JA.

Hon Chu JA:

Introduction

3. This is the defendant’s appeal against the judgment of To J (‘the Judge”) awarding to the plaintiff general and aggravated damages for defamation in the respective sum of HK$200,000 and HK$100,000.  The defamatory statement was contained in the defendant’s letter addressed to village representatives, executive members of rural committee and elders and respected members of the villages in Shuen Wan, New Territories, during the plaintiff’s election campaign for Tai Po District Council election held in November 2011.

Background

4. The plaintiff and the defendant are both indigenous villagers of the New Territories.  They were respectively 75 and 68 years of age in 2011 when the subject matter of the litigation arose. 

5. The plaintiff was the elected village representative of Ha Tei Ha Village in Shuen Wan, New Territories.  He became an elected District Councillor of Tai Po in 2003 and remained in that office until 2012 when he was not re-elected.  During his term of office as District Councillor, he maintained an office for receiving the public (“Councillor’s office”), and also kept a private accommodation (“private office”), which was used occasionally to meet members of the public and for his and his friends’ recreational purposes. 

6. The defendant was the elected village representative of Lei Uk Village, also in Shuen Wan.  After living in the United Kingdom for some 40 years, he returned to reside in Shuen Wan.  He holds various lots of land in the New Territories for his t’ong, one of which is Lot No 255 RP in DD23 (“the defendant’s land”).

7. In September 2010, the government fenced off the defendant’s land from the highway.  On 7 December 2010, the defendant approached the Councillor’s office for assistance.  Miss Luk, one of the assistants employed by the plaintiff, attended to his complaint and liaised with the District Lands Office (“DLO”) and the Tai Po District Office (“DO”). By letter dated 13 January 2011 (“DLO’s Letter”), the DLO replied that the defendant’s land is an old schedule agricultural lot, the terms of grant of which did not confer any right or access or passage to/ from the public highway, and suggested the defendant to discuss and resolve the access problem with neighbouring landowners.  The DO also replied by letter dated 20 January 2011 (“DO’s Letter”) that the matter had been referred to the DLO for handling. The plaintiff’s Councillor’s office closed the defendant’s complaint on 28 January 2011.

8. At trial one of the disputes was whether the defendant had also gone to the private office to make his complaint, and also whether Miss Luk had informed the defendant of the outcome of his complaint and sent him a copy of the DLO’s Letter and DO’s Letter.

9. It is, however, common ground that on 19 August 2011, the defendant met Ms Chan, another assistant of the plaintiff, by chance. They had a casual conversation, during which the defendant said he had not received any documents from the plaintiff in respect of his complaint. Subsequently, on about 25 August 2011, Miss Luk sent a copy of the DLO’s Letter to the defendant.  On 10 September 2011, the defendant telephoned Miss Luk and expressed his dissatisfaction over the plaintiff’s handling of his complaint. At his request, Miss Luk sent to the defendant a copy of the plaintiff’s case record in respect of the defendant’s complaint (盧三勝區議員個案記錄表, “the Case Record”). 

10. The defendant later published a letter dated 20 September 2011 (“the Defamatory Letter”) to 25 people including the plaintiff, who were village representatives in Shuen Wan (船灣十一聯村村代表), members of executive committee of Tai Po Rural Committee (執行委員), elders and respected members of the villages (鄉親父老).  This was during the period when the plaintiff was campaigning for the District Councillor election.  The plaintiff, through his solicitors, demanded the defendant to make a full and unequivocal retraction, an apology and an undertaking to refrain from further publication.  The defendant replied by letter reiterating his stance and refusing the plaintiff’s demand.

11. In the District Councillor election held later in November 2011, the plaintiff lost by a narrow margin to Mr Lau Chi Shing, whom the defendant supported, and was not re-elected.

The claim and the defence

12. In December 2011, the plaintiff commenced proceedings against the defendant claiming general, aggravated and exemplary damages for defamation arising out of the publication of the Defamatory Letter. 

13. The Defendant did not dispute the publication of the Defamatory Letter, but contended that the words complained of bore a lesser scope of defamatory meanings than that pleaded by the plaintiff.  He also relied on the defence of justification, fair comment and qualified privilege. 

14. The defendant’s case is that after he lodged his complaint with the plaintiff about the access problem of the defendant’s land, the plaintiff solicited his support in the Township Representative election to be held on 26 January 2011.  At a meeting on 20 January 2011 at the plaintiff’s private office, the two of them reached consensus that the plaintiff was to use his best effort to resolve the access problem of the defendant’s land, and the defendant was to give the plaintiff his support in the Township Representative election. The defendant said that although the plaintiff had by the time of this meeting received the DLO’s Letter and the DO’s Letter and knew that the government rejected his complaint, he deliberately withheld the information from him and did not provide him with copies of the letters.  It is on this basis that the defendant contended that the plaintiff failed to keep his promise, was incompetent as a District Councillor and acted dishonestly in concealing the reply from the DLO and the outcome of his complaint so as to securehis support in the Township Representative election.

15. The Plaintiff denied these allegations and further argued that none of the defences could be established because the publication of the Defamatory Letter was actuated by malice.

The Defamatory Letter

16. The relevant part of the Defamatory Letter, which is in Chinese, reads as follows:

“關於上述事件，本人在2010年八月曾到本區區議員盧三勝先生求助，盧議員答應我會盡一切努力爭取我應有權益，本人一直等候盧議員佳音。… 直至2011年八月二十五日，收到盧議員來信,隨信附上地政處信件一封，日期2011年一月十三日，內容和我在上述所提相同，盧議員收到地政處信件後，從未向地政處提出異議，更談不上理據力爭 [sic] ，並將文件收藏至今年八月二十五日才將地政處副本信件轉交給我，事件拖延太久，使我錯失上訴機會，整件事本人感到非常憤怒和被騙感覺，本人質疑盧議員誠信和處事能力，本人希望各位有意參選本區區議員人仕，凡事以民為本，沽名釣譽,只會誤人誤事。” [1]

17. The English translation reads:

“About the aforesaid matter, I requested the assistance of Mr Lo Sam Shing, District Councillor of this District, in August 2010. Councillor Lo promised me to give his best efforts to fight for my rights. I waited for the good news from Councillor Lo. … Until 25 August 2011, I received a letter from Councillor Lo, attaching therewith a letter of the DLO dated 13 January 2011, the content was the same as aforementioned. After receiving the letter from the DLO, Councillor Lo never raised any objection to the DLO, let alone fight for my case. He also kept the DLO’s letter until 25 August of this year, when he gave a copy to me. The matter was delayed for too long, causing me to lose the chance to appeal. I feel very angry and have a feeling I was being deceived. I question the honesty, integrity and competence of Councillor Lo. I hope those who intend to run for the District Councillor of this constituency will act in the interests of the people. To act in pursuit of fame and glory will only cause harm to people and ‘mess up” their business.” [2]

The Judge’s findings

18. On the issue of the meaning of the offending words in the Defamatory Letter, the Judge found the ordinary person with general knowledge and experience of worldly affairs would understand the offending words as carrying the following meanings:

(1) The plaintiff was dishonest and failed to keep his promise made to the defendant;

(2) The plaintiff was guilty of undue delay in informing the defendant of the decision of the government departments about the defendant’s complaint;

(3) The plaintiff was incompetent and failed to discharge his duty as a District Councillor; and

(4) The plaintiff not only failed to uphold the interests of the people in the Tai Po District, but was also only interested in fame and glory, thereby causing harm to his constituency and “messing up” its business.[3]

19. The Judge considered the credibility of the witnesses, especially that of the plaintiff and the defendant, of crucial importance to the determination of the case.  The Judge found the plaintiff credible and accepted his evidence.  He, however, found the defendant evasive, exaggerating and not credible and rejected his evidence as being contradictory to the objective evidence in the case.  The Judge further found the plaintiff’s assistants, Miss Luk and Ms Chan, credible and their evidence cogent, consistent and inherently probable.  The Judge accepted also the evidence of the plaintiff’s witness, Mr Man Chen Fai, who held a number of positions at the village level in Tai Po and within the Tai Po District Council.  Mr Man gave evidence that he had received a copy of the Defamatory Letter through the mail. The Judge did not accept the evidence of another plaintiff’s witness, Mr Shek Kwong Yin, as being self-contradictory.  The Judge also attached no weight to Miss Wong Ching, the defendant’s witness, as being irrelevant to the issues in question.

20. The Judge found the Case Record a contemporaneous, authentic and accurate record and that, apart from some trivial events that had not been entered and the dates of two entries might be wrong, it is overall speaking a reliable record.  Three of the entries were considered to be of particular importance, namely, the entries on 13 January 2011 showing Miss Luk had verbally informed the defendant of the DLO’s letter in reply and sent him a copy of it; and the entry on 28 January 2011 which showed Miss Luk had sent a copy of the DO’s letter to the defendant.

21. On the handling of the defendant’s complaint, the Judge found that Miss Luk had followed the plaintiff’s instructions and diligently followed up with the complaint by conducting a site inspection visit, discussing it with officers of the DLO, writing to the DLO, and telephoning the defendant on 30 December 2010 to inform him that the DLO had received his complaint.[4] The Judge also accepted that on 11 January 2011, Miss Luk was verbally informed by the DLO that the defendant’s land being an old schedule agricultural land, the government was not obliged to provide access from the highway, and that she should liaise with the DO or the Highways Department.  Consequently, and on the plaintiff’s instruction, Miss Luk wrote a letter dated 12 January 2011 to the DO and copied it to the Highways Department to seek their assistance.[5]  The Judge further accepted that, after receiving the DLO’ Letter, Miss Luk verbally informed the defendant by telephone and further sent a copy to him.[6]  Then on 25 January 2011, Miss Luk received the DO’s Letter saying the matter had been referred to the DLO.  When she telephoned the DLO on 26 January 2011 to follow up on it, she was told the DLO had already replied by its 13 January 2011 letter.[7]  Finally on 28 January 2011, Miss Luk sent a copy of the DO’s Letter to the defendant.[8]

22. On the dispute of whether the plaintiff had solicited the defendant’s support in the Township Representative election, the Judge accepted the plaintiff’s evidence that although he had initially sought the defendant’s support, when the defendant declined, he turned to others.[9]  The Judge disbelieved the defendant and found that the meeting between the plaintiff and the defendant at the private office alleged by the defendant (see paragraph 14 above) did not take place.[10]

23. It is also the Judge’s finding that in the District Councillor election held in November 2011, the defendant was a supporter of Mr Lau and had shown his support openly.[11]

24. On the basis of his findings of fact, the Judge held that the defendant had failed to prove his allegations that the plaintiff was dishonest, or had failed to keep his promise, or had acted incompetently and delayed in handling his complaint, or had failed to discharge his duty as a District Councillor[12]. The Judge further held that the defendant failed to establish the factual basis for the defence of justification and fair comment[13].  The Judge also held that the defence of qualified privilege failed in that the opinion about the plaintiff as expressed in the Defamatory Letter was not honestly held by defendant and the publication was actuated by malice[14].

25. In assessing the amount of general damages, the Judge took into account the nature of the libel, the plaintiff’s position and standing in the locality of Shuen Wan, the circumstances of the publication of the Defamatory Letter, the defendant’s conduct, including his conduct subsequent to the plaintiff’s complaint, and the absence of any retraction or apology.  The Judge took the view that it was a serious libel in that it impugned the reputation of a public office holder and was published during the plaintiff’s election campaign. Although the circulation was small, it was made to politicians and public figures in the locality, many of whom had business relationship with the plaintiff and whose views on the plaintiff’s honesty, integrity and competency as a District Councillor was highly treasured by the plaintiff.  Although the publication did not have much impact on the outcome of the election, it had caused anxiety, annoyance to the plaintiff and injury to his feeling, which was exacerbated by the defendant’s refusal to retract or apologise.  The Judge considered that the plaintiff should be awarded substantial damages and awarded $200,000 as general damages.[15]

26. The Judge further considered that an award of aggravated damages should be made having regard to the fact that the defendant’s motive in publishing the Defamatory Letter was to discredit the plaintiff and prejudice his chance of success in the election, that he turned down the plaintiff’s invitation to apologise and withdraw the libel, persisted with his allegations against the plaintiff and contested the action to the very end.  He awarded $100,000 as aggravated damages.

27. The Judge declined to make an award for exemplary damages and considered it was not necessary to grant an injunction. He made an order nisi that the defendant pay the plaintiff’s costs on an indemnity basis.  There was no application from the defendant to vary the costs order nisi.

Grounds of appeal

28. The defendant’s Notice of Appeal prepared by his then legal advisers contains five grounds of appeal.  They are:

(1) The Judge erred in finding the plaintiff had not made a promise to use his best effort to resolve the defendant’s complaint in return for his support in the Township Representative election.

(2) The Judge erred in finding that Miss Luk had informed the defendant of the contents of the DLO Letter.

(3) The Judge erred in rejecting the defendant’s evidence regarding the conversation he had with Miss Chan during the chance meeting in August 2011.

(4) The Judge erred in finding that the defendant failed to establish the defence of justification, fair comment and/or qualified privilege.

(5) The Judge erred in ordering the defendant to pay the plaintiff’s costs on an indemnity basis.

Grounds (1) to (3): Witnesses’ credibility and findings of fact

29. It can be readily seen that the first three grounds of appeal are challenges to the Judge’s assessment of the witnesses’ credibility and his finding of fact.  The relevant legal principles are well established.  When considering appeals that involve challenges to assessment of credibility, evaluation of evidence and findings of primary fact, an appellate court will bear in mind the advantage which the trial judge had in seeing and hearing the parties and the other witnesses. It will not interfere unless it is demonstrated that the trial judge was plainly wrong: Ting Kwok Keung v. Tam Dick Yuen (2002) 5 HKCFAR 336. 

30. The position is explained by Lord Reid in Benmax v. Austin Motor Co Ltd  [1955] AC 370, at 375:

“[T]he trial judge has seen and heard the witnesses, whereas the appeal court is denied that advantage and only has before it a written transcript of their evidence. No one would seek to minimize the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness's memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations."

31. Similar observations were made by Lord Hoffmann in Biogen Inc v Medeva Ltd [1997] RPC 1 at 45, and reiterated in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372:

“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

32. These principles and observations apply with full force to Grounds (1) to (3).  What underlines each of these three grounds of appeal is the defendant’s complaint that the Judge should not have accepted the evidence of the plaintiff, Miss Luk and Ms Chan, and that he should have instead accepted the defendant’s evidence.  It is evident from the Judgment that the Judge had assessed the witnesses’ credibility and evidence by reference to its inherent probability and consistency with contemporaneous documentary evidence, notably the Case Record.  It should be noted that at the trial, the defendant did not dispute the authenticity of the Case Record.  It is not his case that the content was a concoction.  After reviewing the witnesses’ credibility in general, the Judge went on to conduct a meticulous analysis of the entries in the Case Record and the evidence on the various factual disputes before concluding that the plaintiff, Miss Luk and Ms Chan were truthful and honest and the defendant was not credible or reliable.  To succeed in Grounds (1) to (3), the defendant must demonstrate that the Judge was plainly wrong in his assessment of the witnesses and their evidence.  It is a high threshold.   

33. Under Ground (1), the defendant complains that the Judge should not have believed the plaintiff’s evidence that he had not promised the defendant he would use his best effort to resolve the access problem of the defendant’s land in return for his support in the Township Representative election.   It is said that the plaintiff’s witness statement on this issue was confusing and that he had retracted from his witness statement under cross-examinations.  It is also said that the Judge was wrong in finding the defendant’s evidence that he had a meeting with the plaintiff at his private office was a concoction, and that the defendant was not honestly mistaken about the purpose of the gift of pomeloes from the plaintiff.   

34. The Judge dealt at length with the issue of the plaintiff soliciting support for the Township Representative election and the alleged promise to use his best effort to resolve the access problem of the defendant’s land in paragraphs 85 to 94 of the Judgment.  The Judge was well aware of the confusions in the plaintiff’s witness statement, but noted that the plaintiff had clarified the position in his supplemental witness statement.[16]  The Judge also dealt with the criticism that the plaintiff had retracted from his witness statement, pointing out that the plaintiff’s answer in cross-examination was in fact ambiguous.[17]  Significantly, the Judge concluded (at paragraph 90):

“The Plaintiff’s evidence might appear convoluted. But obviously, that was how things worked in Shuen Wan. The Plaintiff spoke to his old uncle and friend, Mr Cheung for support. Then, on the Defendant’s own evidence, Mr Cheung attempted to enlist his support. The Plaintiff did not dispute that he had sought the Defendant’s support. His evidence is that having been declined by the Defendant once, he turned to others. He said he did not really need the Defendant’s support because he was invited by some village representatives to take up the office as no one was keen for the job and indeed he won by a landslide. When he telephoned the villagers for their support, he was being diplomatic and polite to the people whom he would represent. While I agree that his evidence might appear confusing, but properly understood, I think he was telling the truth.”

35. This is a view that the Judge was entitled to arrive at after assessing and evaluating all the evidence before him.

36. Connected to this issue of the plaintiff soliciting the defendant’s support in the Township Representative election is the issue of the purpose of the gift of 12 pomeloes from the plaintiff. The defendant claimed it was a gesture to thank him for supporting the plaintiff in the Township Representative election, which served to reinforce his case about the promise made by the plaintiff in the meeting held at the plaintiff’s private office.  The plaintiff’s case, on the other hand, is that the pomeloes were customary Chinese New Year gifts given out by District Councillors in the New Territories to village elders, representatives and heads, and the defendant had been given the gift because he was the village head designate.

37. The Judge dealt with this dispute in paragraphs 91 to 94 of the Judgment.  He noted that the undisputed evidence showed that on the day in question, Ms Chan had a lot of pomeloes to deliver and there were many different recipients.  He also noted that when the defendant received the pomeloes, he asked no question, and he then proceeded to distribute them to his brothers and sisters in his t’ong.  The Judge concluded that the defendant must have known they were customary gifts for the Chinese New Year for distribution to members of his t’ong.  The Judge also observed that the value of 12 pomeloes was not substantial and could not be a meaningful reward for a vote which the recipient would otherwise not have cast.  On this basis, the Judge found the defendant could not have been honestly mistaken about the purpose of the gift, but was seizing the opportunity to bolster his case that the plaintiff had solicited his support in the election.  The Judge further found the alleged meeting at the plaintiff’s private meeting was just the defendant’s concoction.

38. These were findings that the Judge was entitled to make having regard to the evidence before him.  It is also of relevance to note that, despite Miss Luk’s explanation in her witness statement that the pomeloes were customary gift, the defendant refuted the explanation in his supplementary witness statement and persisted in claiming the pomeloes were to thank him for supporting the plaintiff in the election.  This is hardly compatible with the defendant’s belated assertion that he was honestly mistaken about the purpose of the pomeloes gift.  The defendant has not been able to point to any error in the Judge’s assessment and evaluation of the evidence, let alone demonstrating the Judge was plainly wrong in his findings that the defendant was not honestly mistaken and his evidence of the meeting at the plaintiff’s private meeting was a concoction.

39. Ground (1) has no merit and must be rejected.    

40. Ground (2) concerns the Judge’s finding that Miss Luk had informed the defendant of the contents of the DLO’s Letter and had sent him a copy of the letter.  The thrust of the complaint under this ground is directed at the Judge’s acceptance of, reliance on and interpretation of the entries in the Case Record, which the Judge regarded as an important piece of evidence that supports the plaintiff’s case and undermines the defendant’s defence. 

41. At the trial, there was no dispute that the Case Record is a contemporaneous, authentic record and that its contents were not fabricated.  The defendant’s counsel only took issue on its comprehensiveness and accuracy and the interpretation to be made of the entries.  In particular, counsel argued that the three entries made against the date of 13 January 2011 only record instructions given by the plaintiff to Miss Luk on actions to be taken, but not actions actually taken by Miss Luk.  The entries referred to three things: (i) writing further letter to the DO and Highways Department to follow up; (ii) receiving the DLO’s Letter; and (iii) telephoning the defendant to inform him of the DLO’s reply and posting a copy of DLO’s Letter to him.   

42. The Judge dealt with counsel’s criticisms in paragraphs 47 to 52 and 64 to 74 of the Judgment.  He accepted that some trivial events had not been entered in the Case Record, and the dates of two entries were inaccurate, namely, the date on which Miss Luk wrote to the DO and the date the DLO’s Letter was resent to the defendant.  There were no dispute that Miss Luk did write to the DO, and the DLO’s Letter was indeed sent to the defendant in August 2011. The Judge was of the view that these were minor deficiencies that did not affect the overall reliability of the Case Record and have no adverse effect on Miss Luk’s evidence.  

43. The Judge also acknowledged that the content of the heading box on the second page of the Case Record, which was a repetition of the particulars entered in the heading box of the first page, had misled Miss Luk, and in turn the plaintiff and his solicitors, into believing she had a meeting with the defendant on 11 January 2011.  Miss Luk was unable to recall any particulars about this meeting, and merely guessed that the defendant would have been told of the progress of his complaint in the meeting.  The Judge accepted the defendant’s case that he did not meet Miss Luk on 11 January 2011.  He was of the view that Miss Luk was honestly mistaken, and the mistake did not adversely impact on her honesty.  Likewise, he found the plaintiff and his solicitor, who had relied on the Case Record, were honestly mistaken. 

44. With regard to the entries made against the date of 13 January 2011, the Judge rejected the submission that they only recorded the plaintiff’s instructions on the actions to be taken.  He noted that the second entry (i.e. the receipt of the DLO’s Letter) could not have been an instruction given by the plaintiff.  He also noted that follow-up letters dated 12 January 2011 were indeed sent out.  The Judge further observed that in the Case Record, the plaintiff’s instructions were always recorded as “Mr Lo indicated”, and the use of the Chinese character “已” to denote an event in the past is not an invariable practice in the Chinese language.  He concluded it was more likely than not that the three entries were records of events that occurred or actions that were taken on the day. 

45. The particulars in Ground (2) essentially repeat the criticisms made by the defendant’s counsel at the trial, which the Judge had rejected after careful deliberations.  In his written submissions, the defendant argues that since the Case Record was not an accurate record, the Judge should not have relied on it to conclude that Miss Luk had on 13 January 2011 forwarded a copy of DLO’s Letter to him.  I do not accept this submission.  Firstly, the defendant accepted at the trial that the Case Record is a contemporaneous and authentic record.  The deficiencies identified in it were immaterial to the issues in dispute.  In the circumstances, the Judge was entitled to rely and place weight on the Case Record.  Secondly, the main thrust of the defendant’s attack of the Case Record at the trial was that the three entries against the date of 13 January 2011 were records of instructions given by the plaintiff to Miss Luk and not records of actions actually taken by Miss Luk.  Apart from rejecting this argument as a matter of construction, the Judge also pointed out that realistically speaking, even if these were record of instructions, there was no reason for Miss Luk not to carry out the instructions, including sending a copy of the DLO’s Letter to the defendant. It is therefore more probable than not that Miss Luk had followed the plaintiff’s instructions and sent a copy of the DLO’s Letter to the defendant.  The Judge’s reasoning cannot be faulted.

46. The defendant also argues that there was no covering letter to evidence the sending of the DLO’s Letter on 13 January 2011 and that when sending the DLO’s Letter in August 2011, Miss Luk had not mentioned in the covering letter that she was resending the letter.  In my view, having regard to the analysis and reasoning of the Judge on this issue, these points are insufficient to demonstrate that the Judge’s findings are plainly wrong.

47. There is in short no merit in Ground (2). 

48. Ground (3) is about the Judge’s rejection of the defendant’s version of the conversation he had with Ms Chan when they met by chance in August 2011.  According to the defendant, he asked Ms Chan about the progress of his complaint and Ms Chan replied that the Councillor’s office had received a letter from the DLO, and it seemed from the letter that the defendant and the others had to do something together.  The defendant said he only asked for a copy of the letter, but did not ask any further questions, even though admittedly he did not understand what Ms Chan meant by having to do something together with the others. 

49. The Judge was of the view that the defendant’s account of the conversation was unnatural and unconvincing.  The Judge observed that by the time the defendant ran into Ms Chan, it was some eight months after he approached the plaintiff’s Councillor office for assistance; hence, if indeed he had thus far heard nothing about his complaint, he should have been very eager to find out what was that something that the DLO advised him to do with the others, and would not be content with just asking for a copy of the DLO’s Letter.  The Judge also had regard to the entries in the Case Record, which recorded that Miss Luk had informed the defendant of the content of the DLO’s Letter, and considered it improbable that the defendant did not follow up with Miss Luk, if indeed he had not received a copy of the DLO’s Letter.   

50. The defendant disagrees with the Judge’s observation that he ought to have been very eager to find out the DLO’s advice, arguing that since he met Ms Chan at a restaurant, it was inconvenient to discuss his private matters.  The defendant also argues that the Judge was wrong to infer from the fact that he did not enquire about the progress of his complaint, that he must have already received a copy of the DLO’s Letter before he met Ms Chan by chance.  He explains that he had been out of Hong Kong, and usually the government would take years to resolve the issues raised by villagers.

51. In my view, the Judge has given cogent reasons for his evaluation of the evidence and his rejection of the defendant’s version of events.  On the evidence before him, he was entitled to conclude that the defendant’s account was inherently unconvincing.  The explanations proffered by the defendant in this appeal were not evidence before the Judge.  An appeal is not an occasion to re-try the case.  It is not open to the defendant to introduce at will new matters that was not in the trial, with a view to improving his case or addressing the weakness in his case as identified by the Judge.  

52. In any event, the Judge considered the content of the conversation between the defendant and Ms Chan to have no bearing on the outcome of the case.[18] This ground of appeal, even if was successful, would not have affected the Judge’s determination of the case.

Ground (4): Defence of justification, fair comment and qualified privilege

53. The defendant’s defences of justification, fair comment and qualified privilege are premised on his allegations that: (i) he had a meeting with the plaintiff on 20 January 2011 at the plaintiff’s private office; (ii) during the meeting, the plaintiff promised to use his best effort to resolve the access problem of the defendant’s land, in return for the defendant giving him his support in the Township Representative election; and (iii) in order to secure the defendant’s support in the Township Representative election, the plaintiff deliberately and dishonestly withheld from the defendant the government departments’ replies and the DLO’s Letter and the DO’s Letter. 

54. Given that all these factual allegations had been rejected by the Judge, the defences must fail for lack of factual support.  The Judge’s conclusion that the defendant failed to establish the defences cannot be faulted. 

Ground (5): The Judge’s costs order

55. In his submissions, the defendant pointed out that as the total award of damages was only $300,000, costs should have been awarded on the District Court scale, and the fee of senior counsel should not have been allowed.  Mr Fung accepted that in the light of the amount of damages awarded to the plaintiff, the claim was within the jurisdiction of the District Court and he did not disagree that the plaintiff’s costs should be taxed on District Court scale. 

56. As to counsel’s fee, it should be noted that the defendant had raised a number of factual and legal issues at the trial, and he had put up a wide range of defences to the claim.  In my view, the plaintiff was justified to appear by two counsel, and it is appropriate to certify the trial fit for two counsel to attend. 

57. In the light of the Judge’s finding as to the defendant’s knowledge of the falsity of the allegations he made against the plaintiff and his motive behind the publication of the Defamatory Letter, the Judge was entitled, in the exercise of his discretion, to award costs on an indemnity basis.

58. In summary, I would allow the defendant’s appeal against the costs order, but limited only to providing for the plaintiff’s costs to be taxed on District Court scale.

The defendant’s other ground of appeal: Quantum of damages   

59. In his written submissions, the defendant also challenged the Judge’s award of damages, contending that the quantum was unreasonable.  This ground of appeal, however, is not included in the Notice of Appeal.  Under Order 59 rule 3(3) of The Rules of High Court, Cap. 4A, the defendant is not entitled to argue any ground of appeal which has not been included in the Notice of Appeal.

60. That aside, there is no merit in the defendant’s complaint about the award of damages.  In arriving at the award of $200,000 for general damages and $100,000 for aggravated damages, the Judge had regard to the applicable legal principles and had further carefully considered a number of decided cases as well as the particular circumstances of the case[19].  I can discern no error in principle and the amount awarded is well within range.   

61. The defendant relies on the award of damages made in another defamation case (HCA 370/2012[20]) tried by the Judge together with a jury, and argued that while the defamation in his case was less serious, the award of damages was higher.  It was further said that the plaintiff is a retired person in his seventies and the defamation has not caused him any loss.  As the Judge observed, the award of general damages is to compensate a plaintiff for the harm caused to him by the effects of the defamation.  Each case must depend on its own facts.  The mere fact that a smaller award was made in the other case does not mean that the Judge’s award here is unreasonably high or wrong.

62. Contrary to the defendant’s submission, the defamation in this case, when viewed in context, was not trivial or harmless. As the Judge had identified,[21] the plaintiff was a known public figure in Shuen Wan area and had held public office for a number of years.  The Defamatory Letter was published during the District Councillor election to recipients who were politicians and public figures in the locality, many of whom had personal or business relationship with the plaintiff.  It is not difficult to see the harm caused to the plaintiff’s reputation and the distress suffered by the plaintiff, which was exacerbated by the defendant’s refusal to retract or apologise.  In the circumstances, the Judge was entitled to come to the view that substantial damages were called for to console the plaintiff for his distress and to vindicate his reputation.

63. Further, an award of aggravated damages is well justified, given the Judge’s finding that the defendant knew that the allegations he made against the plaintiff were untrue and his motive in sending out the defamatory letter was to discredit the plaintiff and prejudice his election campaign[22] as well as the defendant’ refusal to withdraw the libel or to apologise.   

Disposition and costs of the appeal

64. For the reasons set out above, I would allow the defendant’s appeal only to the extent that the Judge’s costs order should have provided for the plaintiff’s costs to be taxed on District Court scale with a certificate for two counsel.  The rest of the defendant’s appeal is dismissed.

65. The defendant has substantially failed in his appeal.  His argument that costs should be awarded on the District Court scale was only raised in his last written submission.  Further, he could have applied to the Judge to vary the costs order nisi, and had he done so, the Judge would very probably have varied his order to direct that costs be taxed on District Court scale.  In these circumstances, there is no reason to depart from the normal rule that costs follow event.  I would order that the defendant pay the plaintiff the costs of the appeal, to be taxed if not agreed.  Since the issues in the appeal are not complex, I would not certify it fit for two counsel to attend.