GENERALE BELGIUM BANK and Another v. MADAM CHOU HWEI CHUN

1994, No.A6512

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H E A D N O T E

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Interlocutory Injunction - the balance of convenience is in favour of the Plaintiff in a defamation action to restrain the Defendant from continuing to make defamatory remarks - the defence of justification can only be established at the trial.

Contempt of Court - interlocutory injunction restraining the Defendant from making defamatory remarks - the remarks are defamatory even if the Defendant alleged that they are true - the Defendant can only continue to make defamatory remarks after she has justified them at the trial - it is no defence to the contempt proceedings to allege that those remarks are true.

1994, No.A6512

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an application to commit the Defendant for contempt of court for breaches of Rogers J.'s order of 5 July 1994 which was extended with minor amendments by Deputy Judge Burrell on 13 July 1994.

2. Rogers J.'s order basically prohibited the defendant from:

1. Distributing leaflets inside and outside the 1st Plaintiff's premises and;

2. Publishing defamatory remarks about the 2nd Plaintiff for the time being until the return date of the inter partes summons or further order.

3. Deputy Judge Burrell's order was just a very minor amendment and did not add anything substantially to the content of the original order.

4. Rogers J's order was served on the Defendant on 11 July 1994. The Defendant said the order was handed over to her lawyer shortly afterwards. She did not say that she was not aware of its content.

5. In fact, there is ample evidence to suggest that she was aware of its content, for example, she apologised to the court in the Miscellaneous Proceedings No 1895 of 1994, in her affidavit that she had "stupidly" committed a breach of the order on 18 July 1994 and she promised not to do it again.

6. The Plaintiffs did not there and then commit her for contempt of court. The Plaintiffs are complaining about a string of other subsequent breaches.

7. From all the evidence before me and also from the submissions of the Defendant, I am satisfied beyond all reasonable doubt that the Defendant had committed those acts of breaches complained of in paragraphs (1)(b) to (l) inclusive, a total of eleven acts of breaches.

8. Since the Defendant had been aware of the order of Rogers J, she had:

a. On two occasions distributed leaflets outside the 1st Plaintiff's premises;

b. On divers occasions, published defamatory remarks of the 2nd Plaintiff.

9. The Defendant's explanation and defence to these acts, as I understand her, are of two folds, namely;

a. The order of Rogers J. was obtained by false testimony or perjury and therefore the order was invalid;

b. What she said of the 2nd Plaintiff are all true and therefore not defamatory.

10. In other words, they all boil down to the contention that she has been making all along, namely, "I am telling the truth and he is not".

11. Are these publications defamatory? In my view, they are. These publications would, so to speak, diminish the fame of the 2nd Plaintiff and are all defamatory.

12. It has been said by the learned author in Gatley on Libel and Slander at page 5, paragraph 4, that:

"Any imputation which may tend 'to lower the plaintiff in the estimation of right-thinking members of society generally,' 'to cut him off from society,' or 'to expose him to hatred, contempt or ridicule,' is defamatory of him. An imputation may be defamatory whether or not it is true."

13. Of course in the footnote it also said that:

"But the defendant will succeed if he proves the truth of the imputation."

14. In other words, in my view, all these remarks are defamatory. Even if the Defendant can succeed at the end of the day at the trial that they are all true, she is nonetheless restrained by an interlocutory injunction not to make these remarks for the time being until after the trial, (and I emphasise the words for the time being which is the only effect of the interlocutory injunction.)

15. The Defendant's argument is part and parcel of the circular argument she made in the interlocutory proceedings on the injunction. As I have said, the court cannot decide at this stage who is telling the truth and who is not. The court decided on the interlocutory injunction on a balance of convenience and not on a finding of facts of who is telling the truth. Interim measure must be made.

16. The question is this: should the Defendant be allowed to continue on publishing those defamatory remarks? I have decided that the balance of convenience is in favour of the Plaintiff as an interim measure. It would therefore be fruitless for the Defendant to insist on the truth of her remarks and her right to publish them. She has to establish their truth before the injunction can be discharged at the trial.

17. The Defendant repeatedly said that she wanted justice from the court. I am afraid that she will have to follow the court procedure and the law of the land herself in order to pursue her rights to obtain justice. I am sure any right-thinking member of the community would agree that she should not be allowed to make those remarks until she has justified them properly in a court of law.

18. Apparently her breach of the prohibition from publishing those defamatory remarks stems from her misunderstanding that since she thought those remarks are true and are therefore not defamatory; and since they are not defamatory, they would not be within the terms of the injunction. The Defendant is, in my view, wrong in her understanding of the legal position.

19. The Defendant told me that what she wanted is just past maintenance for herself and her two children and future maintenance for the two children.

20. As I have said earlier in my Decision on the interlocutory injunction, Barnett J.'s order on 30 August stayed her application for maintenance in Miscellaneous Proceedings No 1895 of 1994.

21. The question of maintenance apparently is a matter for the Belgian court. In Hong Kong, in respect of this question of maintenance, the only course open to the Defendant is to appeal against Barnett J.'s order.

22. The Defendant told me in chambers that she was advised that it is difficult to appeal against this order since her children have passed the age of eighteen now. It is really a matter for the Defendant. The Defendant ventured to say that the only course open to her is to take her case to the street. She said that this is her freedom of speech. I must say that freedom has its own restriction. It has often been said "My right to extend my arm ends where your nose begins".

23. There is a defamation action now in this action before me. The court has imposed an interim measure by way of an interlocutory injunction to restrain the Defendant for the time being from publishing those remarks until after the trial. The Defendant actually now has a forum to establish her justification in publishing those remarks of the 2nd Plaintiff, i.e. at the trial of this action. This is the only and only proper way open to her.

24. There are, however, two further things which I would like to point out which is not directly related to the contempt proceedings.

25. The Defendant repeatedly said that she wanted maintenance for the two children in the sum of US$1,000 each per month in order to have a "decent" living for the two daughters in Canada. It has already been agreed by the 2nd Plaintiff to offer to pay all tuition fees for the university education of the two daughters. He offered instead to pay Canadian $700 per month and Canadian $500 per semester for books and instruments. There is of course some difference between the demand of the Defendant and what the 2nd Plaintiff has offered.

26. I do not know what difference it actually makes in the standard of living in Canada. From my limited experience of Canadian life, I understand that there are quite a number of Canadians in Toronto who are earning between Canadian $2,000 to $3,000 per month for a family of four which is subject to more than 30% tax and I would say no more than this.

27. But, on the other hand, I would also like to point out that there is nothing to stop the 2nd Plaintiff (as a banker himself) to remit his financial support right away to the two children regardless of whether the Defendant (or even the 2 daughters) would accept this lesser sum. It is a matter for the two adult daughters to either accept or reject them if they so wish. No doubt, of course, the conduct of the parties would have a bearing on the defamation action and I would say no more than that.

28. In conclusion, I must say, it gives me absolutely no pleasure in committing the Defendant for contempt of court for breach of Rogers J.'s order.

29. Mr Bell, you have anything to say?

MR BELL: My Lord, I have nothing to say. We do have a draft order prepared. My Lord, it was prepared on the assumption that your Lordship would find in the way your Lordship did. Perhaps I can hand the draft up to the court. It is in the form prescribed by the rules.

COURT: According to the statement and my counting, the paragraphs 1(b) to (l) contain 11 paragraphs. You have 12 paragraphs. Oh, this is re-arranged in chronological order. I see. Paragraphs 1 and 2 apparently are the same, 18 July.

MR BELL: My Lord, I am told, exactly as taken from the schedule of the Notice of Motion.

COURT: Yes, but look at your paragraphs 1 and 2. They are exactly the same.

MR BELL: My Lord, yes, they are.

COURT: ... so 2 is out and they are re-numbered to make 11 paragraphs.

30. Before I sentence you on the contempt proceedings, Madam CHOU, do you have anything to say as to how I should deal with you, whether I should deal with you leniently and if you have any submission to make in mitigation?

MADAM CHOU: What do you mean - mitigation?

COURT: Mitigation -- the punishment for contempt of court would attract either a fine of money and/or imprisonment. What do you say to that in mitigation?

MADAM CHOU: Well, I don't have any money and I don't have any time for the imprisonment and I have a small child to support too.

COURT: Yes, thank you very much.

MADAM CHOU: You are welcome.

COURT: As I have said, it gives me absolutely no pleasure in committing Madam CHOU for contempt of court. Apparently it stems from her misunderstanding of the position. She appeared to me to be an intelligent woman. She thought the injunction order, as I have said, prohibited her from making defamatory remarks and she had decided that those remarks are true and therefore are not defamatory. According to the authorities, as I have said, that is not so. The remarks tend to diminish the fame of the 2nd Plaintiff and therefore they are defamatory even if they are true. The only difference is: if they are true and she can establish that they are true at the trial, then the injunction would have to be discharged. This is only an interim measure so that no irreparable damage would be caused in case that those remarks are not true. It is not the trial yet of the action.

31. And I sentence you, Madam CHOU, to seven days' imprisonment for those contempt but suspended for one year. I think it will serve the purpose. I don't think it is a case fit for a fine bearing in mind your condition now.

32. The effect of a suspended sentence is that, this seven days' imprisonment will be activated if you continue to commit those acts which are within the terms of the injunction and they would not be activated if you abide by the injunction order.

33. I would also venture to say that as you have quoted the Chinese idiom - I have decided in this case those are defamatory remarks even if they are true - you cannot keep on saying that: "this is not a deer; this is a horse". You should study carefully the terms of the injunction order and abide by it. If you want to pursue your cause, you pursue it properly in a court of law. Seven days' imprisonment suspended for one year.

34. I don't think there is anything else.

MR BELL: Only the question of costs, my Lord.

COURT: I think you are entitled to costs but then I don't think your client is interested in getting anything out of the other party.

MR BELL: My Lord, yes. We may well not seek to execute it, but we would ask for the order to demonstrate that these proceedings were properly brought.

COURT: Yes. I cannot see any other reason to refuse the Plaintiffs' application for costs. Costs of the contempt proceedings be to the Plaintiffs.

35. I don't think there is anything else.

MR BELL: My Lord, no.

COURT: Court adjourned.