INTERNATIONAL SOCIAL SERVICE (HONG KONG BRANCH) v. VISION FIRST LTD

HCA 683/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 683 OF 2014

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J U D G M E N T

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Introduction

1.  This is a claim by the plaintiff against the defendant for damages (and other relief) allegedly caused by libelous statements.  It is denied by the defendant (which was formerly legally represented, but acted in person at trial).

Background

2.  The background leading to this action can be found in some passages of my decision of 16 February 2017:

“The plaintiff commenced this action in April 2014, relying on the tort of libel (statement of claim, para 5 and 7 to 27). Some 21 allegedly defamatory articles (from August 2013 to May 2014, a period of about 8 to 9 months) are referred to in the statement of claim.

According to the statement of claim, the plaintiff is:

‘... the Hong Kong branch of an international non-governmental organization [with a network covering] over 100 countries ... [which assists] individuals and families with personal or social problems whose solution requires [inter-country] cooperation’ (para 1 thereof).

The plaintiff’s services are said therein to be ‘[to offer] support to refugees and new arrivals to Hong Kong with the aim of assisting them to integrate into the local community’ (para 2 thereof).

According to the defence, the defendant’s mission is said to be to offer support to all persons (including refugees) in Hong Kong (para 6 thereof).  The defendant also alleges that the plaintiff has been acting as an agent of the Social Welfare Department (‘SWD’) under a contract between the two.  The said contract is said to have delegated some of SWD’s responsibilities; namely, providing financial and other assistance to natural persons who have formally sought non-refoulement protection in Hong Kong (para 4(1) thereof).”

(para 7 to 9 thereof)

Main issues

3.  The amended defence (“defence”), rather unusually, admits most of the important averments in the amended statement of claim (“statement of claim”):

(a) the 21 articles referred to the plaintiff (para 29, statement of claim; para 31, defence);

(b) the pleaded natural and ordinary meanings of the words in the 21 articles (para 30, statement of claim; para 32, defence).

4.  By a consent order dated 24 February 2017 (shortly before trial), the following parts of the defence were struck out:

(1) para 15 to 29 and 35(d) (pleas of honest and/or fair comment);

(2) para 3 and 5, defendant’s answers to request for further and better particulars dated 12 November 2014 (pleas of honest and/or fair comment).

5.  Consequently, by the time of trial, the main issues which remain to be resolved are:

(a) whether the pleaded meanings were defamatory;

(b) the plea of justification of defamatory meaning (if any);

(c) damages and relief.

Witnesses’ testimony and findings of fact

6.  The following witnesses testified at trial:

(1) Mr Beatson (“Beatson”), the defendant’s founder and executive director;

(2) Ms Panares (“Panares”), the plaintiff’s program director.

7.  In gist, Beatson’s testimony is that:

(a) in relation to the accommodation in which the defendant’s clients resided, they were all bordering on subsistence level. Some of them were below even that standard in some respect, and some were illegally located and/or constructed.  Further, the plaintiff failed to carry out an adequate check on the conditions of accommodation;

(b) in relation to the food supplied to the defendant’s clients, the system was defective and abuses were rampant.  There was insufficient supervision and/or monitoring of the system (being part of the plaintiff’s job).

8.  But whatever was his dissatisfaction with the system of assistance and/or the adequacy of the plaintiff’s role and/or work in managing the system:

(1) Beatson admits that he does not know if the plaintiff and/or its officers had accepted bribe money;

(2) (perhaps due to the defendant’s inadequate discovery of documents) there is a general lack of specifics regarding the alleged inadequacies in the plaintiff’s work (the defendant’s extremely late attempt to discover a substantial quantity of documents at trial was disallowed);

(3) the lack of specifics is not limited to documentary evidence, but also in the defendant’s pleadings and witness statements;

(4) in view of the above, Beatson’s complaints cannot be safely relied upon as evidence of the plaintiff’s inadequate work.

9.  But even if Beatson’s testimony can be relied upon as evidence of the plaintiff’s allegedly inadequate work, it still does not establish:

(a) the plaintiff has committed criminal offence(s) (such as fraud and theft);

(b) the plaintiff has accepted bribes;

(c) the plaintiff has cheated the government;

(d) the plaintiff has conspired with others to defraud the defendant’s clients or to cheat them or deal with them unfairly;

(e) the plaintiff has breached the trust reposed upon it by the government or the Hong Kong community;

(f) the plaintiff should be imprisoned;

(g) the plaintiff has misused public funds;

(h) the plaintiff has colluded with the government.

(see also para 12(a) to (h) below)

10.  On the other hand, Panares has given testimony which I consider to be truthful and reliable.  When she was cross-examined, the alleged wrongs summarized in para 9(a) to (h) above were not put to her.  The main thrust of the cross-examination was about the provision of shelter and food by government with the help of the plaintiff. Panares has given explanations for the alleged inadequacies.  They include:

(1) the plaintiff has required the shelter owners to provide proof of title, or authority to lease.  The plaintiff’s staff would inspect the shelters before approval was given, and would inspect them from time to time afterwards;

(2) there were instances where the plaintiff has been deceived by the shelter owners or their agents;

(3) some shelters were preferred by the residents (who sought the plaintiff’s approval to reside there) despite the plaintiff’s advice against residing there;

(4) after the plaintiff has been alerted to illegally located or constructed shelters, the plaintiff has issued warnings to the residents urging them to leave;

(5) the alleged overpricing of food items is unfounded.  The food suppliers were required to meet unusual requirements such as (a) offering uncommon ethnic food, (b) fixed prices over prescribed periods and (c) food packaging and delivery services;

(6) some of the food suppliers who misbehaved have been banned from the supplier list;

(7) there were instances where food items were exchanged for cash after they were supplied.  The food coupon system (for which the defendant claims credit) did not solve the problem entirely although it enabled such misbehaviour to be more easily tracked.

The defamatory “sting”

11.  The relevant legal principles for determining whether a statement of defamatory are settled.  To quote from one of my earlier decisions:

“IMPUTATION(S) OF THE SUBJECT ARTICLE

15. To resolve the dispute summarized at para 3(a) and (b) above, it is proper (and necessary) to begin by considering the imputation(s) of the subject article.

(a) Relevant legal principles

16. For such purpose, the relevant legal principles can be distilled as:

(1) words are normally construed according to their natural and ordinary meaning;

(2) the words the subject-matter of the analysis are given only a single meaning;

(3) the single meaning is that ascribed to the words by a fictitious ordinary reader;

(4) context of the words needs to be taken into account; in other words, the article in question must be taken as a whole;

(5) whether the words were believed (or not believed) by the audience is irrelevant (unless they were totally beyond belief).

Details of the above can be found in Wong Wai Kay v Hong Kong Economic Journal Co Ltd and Another [2013] 3 HKLRD 27, para 9; Oriental Press Group Ltd and Others v Fevaworks Solutions Ltd t/a Alive! Media and Communications and Another HCA 597/2009 (25 February 2011), para 14 and 15; Charleston and Another v News Group Newspapers Ltd and Another [1995] 2 AC 65, 71F-72F; Gatley on Libel and Slander (2013) 12^th Ed, para 2.1, text to nn 15 and 16, 3.13 to 3.18 and 3.24.

17. To put the above in another way, there are two stages to the process for determining whether the words are defamatory:

(a) first, to decide what the words mean;

(b) secondly, to decide whether that meaning is defamatory (and if defamatory, the ‘sting’ of the defamation).

See Gatley, para 2.1.

18. Further, where a defamation action is tried by a judge without jury, it would be carrying artificiality too far to require the judge to arrive at the single ‘right’ meaning by distinguishing between various meanings which the words were capable of bearing, and then choosing the ‘right’ one: Next Magazine Publishing Ltd and Others v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160.

19. Gatley has offered a working definition of ‘defamatory meaning’:

‘a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred or ridicule.’

Gatley, para 2.1, text to nn 4 to 7, quoted in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others HCA 607/2008 (28 May 2010), para 23.

20.    There is no reliance on ‘innuendo’”

(quoted from para 15 to 20 and 25, Law Chi Ching v Apple Daily Ltd and Others HCA 2155/2009 (21 August 2015))

The characteristics of the fictitious ordinary reader (see para 16(3) of the Law Chi Ching decision) are set out below:

“The fictitious ‘ordinary reader’ is described as one with the following temperament:

‘He is a sort of half way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... The layman reads in an implication much more freely, and ... is especially prone to do so when it is derogatory’ (Gatley, para 3.25).

See also Charleston and Another v News Group Newspapers Ltd and Another [1995] 2 AC 65, 71F-72F”.

(quoted from Mok Kam Kwai v Lam Mo Fat HCA 1868/2010 (6 March 2014), para 31)

12.  The natural and ordinary meanings pleaded in the statement of claim (and which have been admitted by the defendant) are in short:

(a) the plaintiff has committed criminal offence(s) (such as fraud and theft);

(b) the plaintiff has accepted bribes;

(c) the plaintiff has cheated the government;

(d) the plaintiff has conspired with others to defraud the defendant’s clients or to cheat them or deal with them unfairly;

(e) the plaintiff has breached the trust reposed upon it by the government or the Hong Kong community;

(f) the plaintiff should be imprisoned;

(g) the plaintiff has misused public funds;

(h) the plaintiff has colluded with the government.

13.  Whether an imputation is defamatory is essentially a question of fact: Gatley para 2.27.  But previous decisions indicate the following were instances of defamatory imputation:

(1) calling someone a rogue and a rascal, a swindler, a greedy sinecurist, a crook, a cheat, or that he is dishonest or has breached his duty (or any dishonourable conduct against someone else);

(2) calling someone a criminal, or imputing that he is guilty of a crime;

(3) injuring someone’s reputation in his business, trade or profession, or imputing he is unfit in office or unfit for his profession or calling.

(Gatley para 2.28, 2.35, 2.37 to 2.38 and the footnotes thereto)

14.  Bearing the above in mind, the 21 articles are quite clearly intended to, and did, convey to an ordinary reader defamatory imputations (as summarized in para 12(a) to (h) above).

15.  The defendant argues that the word “corruption” used in some of the 21 articles did not impute corruption (in the criminal sense (such as soliciting, or accepting, bribery)) but merely “dishonest or fraudulent conduct by those in power” or “making someone or something morally depraved” (citing, in support, “The Oxford Dictionary”).  I disagree for two reasons.

16.  The meaning of words should be understood in the context in which they were used.  The context in which “corruption” (or “corrupt”) has been used was, for example:

(a) corruption was used together with an allegation of cheating the government;

(b) corruption was used together with theft (“ISS Stop Corruption” and “ISS is a thief”);

(c) corruption was used together with an abuse of power;

(d) corruption was used in the context of 6 million tax money not being used for its intended purpose and the government having been cheated;

(e) corruption was said to have been exposed to (among others) the police and the public;

(f) corruption was used together with inferior food quantity and quality.

Used in such context, the word connotes misconduct much more serious than those contended for in para 15 above.

17.  Apart from the above, the defendant, through Beatson, in fact lodged a complaint against the plaintiff with the law enforcement agencies (including ICAC).  In view of such action, it is rather disingenuous for the defendant put forth the argument summarized in para 15 above.

Conclusion on liability

18.  The plaintiff has established that the 21 articles were defamatory of the plaintiff and were published by the defendant. The plea of justification fails.

Damages/relief

19.  The plaintiff’s opening submissions propose an award of $1.5 million (para 96 thereof) (the proposal is not maintained in the final submissions).  The defendant, understandably, has not put forth any proposed amount of damages.

20.  The plaintiff puts forth the matters below in support of its contention that:

“… this is one of the worst cases of this kind, and the award of damages … should properly reflect that” (para 93, plaintiff’s opening submissions).

The matters put forth are:

(1) the allegations are serious.  The plaintiff has been accused of dishonourable, dishonest and criminal conduct and having breached the trust reposed by the government and the public;

(2) the allegations were published more than once, and over a sustained period, through the Internet, which could potentially reach a wide readership (both as regards number and as regards geographical coverage);

(3) the defendant has persisted in the libel even up to the beginning of trial (see para 5(b) above);

(4) the defence indicates that the defendant will continue to publish the libel.

21.  The decisions referred to by the plaintiff as guidance for making an award are:

(a) Chu Siu Kuk Yuen v Apple Daily Ltd and Others [2002] 1 HKLRD 1 ($3 million awarded);

(b) Yaqoob v Asia Times Online Ltd [2008] 4 HKLRD 911 ($1 million and $150,000 awarded for different plaintiffs);

(c) Blakeney-Williams v Cathay Pacific Airways Ltd (2012) 15 HKCFAR 261 ($700,000 awarded);

(d) John Raymond Luciw v Wolfgang Derler, HCA 2148/2011 (29 July 2013) ($1 million awarded);

(e) Mok Kam Kwai v Lam Mo Fat, HCA 1868/2010 (6 March 2014) ($400,000 awarded);

(f) Hong Kong Television Network Ltd v Asia Television Ltd & another, HCA 2217/2012 (20 November 2015) ($1.3 million awarded).

22.  The aggravating features in this action include the following:

(1) the allegations made are serious (see para 12 to 13, 15 to 16 and 20(1) above);

(2) the allegations were not made once, but were published from time to time for about 8 to 9 months;

(3) the defendant persists in defending this action, and relies on the defence of justification which totally fails.

23.  On the other hand, the actual readership appears from the evidence to be much less than expected (the maximum reads were about 800, which is said to be substantially more than the daily average).

24.  Because of the vast difference in the extent of publication, the awards made in the mass media decisions cannot provide a good guidance (para 21(a) to (c) and (f) above).  The award in the Derler decision (para 21(d) above) was premised on the court’s finding that the libel has reached “a large but unquantifiable number of” readers (through Facebook and Asiaexpat.com) (para 17, the Derler decision).  The award in the Mok Kam Kwai decision (para 21(e) above) was premised on the court’s finding that the libel has probably been seen by a substantial number of people (para 76, the Mok Kam Kwai decision).

25.  In the Law Chi Ching v Apple Daily and Others [2017] 1 HKLRD 1028, the court of appeal awarded $450,000 for a one-off libel alleging criminal conduct where the “readers who would be able to link up the plaintiff with the person mentioned in the article are in the few tens rather than in the few hundreds” (para 8 thereof).

26.  Bearing all of the above in mind, the appropriate awarded for general damages should be $800,000.  In reaching this sum, (besides the matters stated above) I also take into account:

(a) it is unlikely the government has attached any weight to the libel (although the libel might at least at one stage have caused the plaintiff some additional work to explain their position);

(b) this judgment will also help to vindicate the plaintiff.

27.  I also accept the plaintiff’s argument that, in view of the contents of the defence (para 36 thereof), an injunction (in terms similar to that sought in the prayer for relief) should be granted.

Conclusion

28.  Judgment is entered in the plaintiff’s favour as stated in para 26 and 27 above.

Other matters

29.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

30.  The parties agree that costs should follow the event.  There will accordingly be a costs order that the costs of this action are to be paid by the defendant to the plaintiff to be taxed if not agreed.