CHAN SHUNG FAI v. CHAN KAM WAH

DCCJ 3441/2020

[2023] HKDC 499

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3441 OF 2020

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JUDGMENT

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A.  Introduction

1.  This is an assessment of damages caused to the plaintiff by the defendant’s publication of five sets of defamatory statements.

2.  The plaintiff is an investment banker and entrepreneur. He has been involved in community services in Hong Kong and the Mainland, including the following:

(1)  Member of the Central Policy Unit of the Government of the Hong Kong SAR in 2012;

(2)  Head of Ping Yeung Village (坪洋村村長), the Chairman of Ta Kwu Ling District Rural Committee (打鼓嶺鄉事委員會主席) and a Member of North District Council (北區區議會當然議員) for three successive terms for a total of 12 years from 2007 to 2019;

(3)  Executive Committee Member of Heung Yee Kuk from 2007 to 2019;

(4)  Honourary Chairman of the New Territories School Heads Association for a total of 4 years from 2015 to 2019; and

(5)  Chairman of the Rural Public Works Working Group of North District of the Homes Affairs Department of the Government of the Hong Kong SAR from around 2013 to around 2017.

3.  The defendant is the biological father of the plaintiff. He was married to the plaintiff’s mother, Madam Lee Kam Tai, until they were divorced in the late 1980s.

4.  The plaintiff and the defendant both stood for the election for the indigenous inhabitant representative for Ping Yeung Village in the 2019 Village Representative Election held in January 2019 (the “Election”).

5.  The plaintiff commenced the present action by issuing the writ on 8 July 2020. By consent, an interlocutory judgment dated 21 October 2020 was entered against the defendant on liability with damages to be assessed.

6.  Counsel Mr Lawrence Ng appeared for the plaintiff and Mr Roy Lau appeared for the defendant at the assessment hearing.

B.  The offending publications

7.  There are five publications complained of:

(1)  An announcement published on the front page of the 29 September 2018 issue of Oriental Daily News (東方日報) (the “Offending Declaration”);

(2)  A video which has been published on the website of HK01 (香港 01) since 5 October 2018 (the “1^st Offending Video”);

(3)  A video which has been published on the website of Oriental Daily News since 30 September 2018 (the “2^nd Offending Video”);

(4)  A video which has been published on the website of Apple Daily (蘋果日報) and YouTube since 1 October 2018 (the “3^rd Offending Video”); and

(5)  A video which has been published on the website of Apple Daily and YouTube since 7 January 2019 (the “4^th Offending Video”)

(the 1^st to 4^th Offending Videos collectively as the “Offending Videos”).

B1.  The Offending Declaration

8.  In an announcement entitled “與陳崇輝脫離父子關係之聲明”, which was published on the front page (page A1) of the 29 September 2018 issue of Oriental Daily News, the following words were published:

(1)  In the first paragraph thereof:

「本人陳金華是新界打鼓嶺坪洋村陟雲祖堂之原居民，現向本區、本村、本祖堂之香港、國內、海外之叔伯兄弟及一眾鄉親嚴正宣布，由即日起與不肖長子陳崇輝（新界打鼓嶺鄉事委員會主席暨坪洋村村長）斷絕父子關係。」

(2)  In the second paragraph thereof:

「按本宗族歷代規矩，本人日後之生養死葬，陳崇輝君俱無權參與。根據祖例，其踏足陟雲祖堂祭祠之權利，亦將受到限制...」

(3)  In the last paragraph thereof:

「本人以沉重、傷痛之心情決定與陳崇輝斷絕父子關係，除通報各叔伯兄弟及一眾鄉親，更冀昭昭天日，爲我爲證。更藉以奉勸世人，百行須以孝爲先。」

(the “1^st Offending Words”)

9.  According to the plaintiff, the 1^st Offending Words, in their natural and ordinary meaning, meant or were understood to mean, inter alia, that:

(1)  The plaintiff was an unworthy man;

(2)  The plaintiff was useless and good-for-nothing;

(3)  The plaintiff has been guilty of dishonourable conduct;

(4)  As a son, the plaintiff is not as good as his father, the defendant; and

(5)  The plaintiff has been guilty of unfilial conduct.

10.  The Offending Declaration was re-published in a number of newspapers and/or their websites in Hong Kong, including:

(1)  Apple Daily and its website, under the heading “父子決裂，遭父登報斷絕關係 陳崇輝係邊位?” since 29 September 2018;

(2)  Sing Pao Daily News (成報), under the heading “打鼓嶺原居民父子決裂 鄉委會主席陳崇輝遭斷絕關係” since 30 September 2018;

(3)  Sing Tao Daily (星島日報) and its website, under the heading “坪洋村望族陳金華登報 與區議員陳崇輝斷父子關係” since 29 September 2018;

(4)  The website of Bastille Post (巴士的報) under the heading “新界名人陳崇輝父登報 斷父子關係” since 30 September 2018;

(5)  The website of HK01, under the heading “【父子決裂】坪洋村望族陳金華登報 與區議員陳崇輝斷父子關係” since 29 September 2018; and

(6)  The website of Modia News (流動新聞), under the heading “陳金華刊登頭條 與北區區議員陳崇輝斷絕父子關係” since 29 September 2018.

11.  Furthermore, in respect of some of the Hong Kong newspapers and their websites, whilst they did not republish the whole of the Offending Declaration, they nevertheless republished the gist of the Offending Declaration and the 1^st Offending Words as follows:

(1)  HK01 and its website, under the heading “【父子決裂】家人：陳金華二奶為錢慫恿　父中風陳崇輝無探望”, republished in substance the Offending Declaration and the 1^st Offending Words, as follows:

“打鼓嶺坪洋村鄉紳陳金華登頭版怒斥兒子陳崇輝為「不肖子」，更聲言要脫離父子關係”.

(2)  Apple Daily and its website, under the heading “新界猛人爆家族情仇 父登報斷關係”, republished in substance the Offending Declaration and the 1^st Offending Words, as follows:

“新界赫赫有名的打鼓嶺鄉紳陳金華爆出家族情仇。陳金華昨於報章刊登頭版聲明，宣佈與任打鼓嶺鄉事委員會主席，坪洋村村長的「不肖長子」陳崇輝斷絕關係…”; and

“曾任坪洋三鄉村務委員會主席的陳金華在聲明中，宣佈以沉痛、傷痛之心，「即日起與不肖長子陳崇輝斷絕父子關係」。”.

(3)  Oriental Daily News and its website, under the heading “區議員陳崇輝回應 稱父內地另聚妻” republished in substance the Offending Declaration and the 1^st Offending Words, as follows:

“陳金華在聲明中宣布「由即日起與不肖長子陳崇輝斷絕父子關係」…”.

B2.  The 1^st Offending Video

12.  A video entitled “【父子決裂】祖傳地留新歡十歲子惹紛爭71歲陳金華：有人想我死” has been published on the website of HK01 since 5 October 2018. In the video, the defendant was being interviewed by a reporter and he said, inter alia, the following:

(1) 「趁我病攞我命，攞晒我啲嘢 … 第一，唔畀我太太同我簽名 換腎... 扣留佢幾個月唔俾佢照顧我，等我自生自滅，話佢開賭，話佢黑社會...扣留我 37 日...」

(2) 「有證有據，佢所有錢都係我俾佢，佢邊有能力搵錢呀... 邊有多謝我仲打壓我，佢成日搵中聯辦嚇人，搵中聯辦拉人，同我堂弟講，拉我先，拉唔到我拉我老婆，利益與權利薰心...」

(3) 「我自己有超過 20 萬呎地，我阿爺我太公留俾我，本來我想留返俾佢，佢係大仔，但係見佢咁樣，我就一分地都唔俾佢，諗住發展，佢未雨綢繆，去做嘢...」

(4) 「呢個時間痛改前非，對香港好，對村民好...... 如果佢唔痛改前非，我繼續打壓佢...」

(the “2^nd Offending Words”)

13.  According to the plaintiff, the 2^nd Offending Words, in their natural and ordinary meaning, meant or were understood to mean, inter alia, that:

(1)  The plaintiff took unfair advantage of the defendant and wanted to take his fortune when the defendant was sick;

(2)  The plaintiff had been guilty of false imprisonment of the defendant’s wife;

(3)  The plaintiff falsely accused the defendant’s wife of guilty of the criminal offences of operating a gambling establishment and being a member of a triad society;

(4)  The plaintiff had deliberately made false allegations against the defendant’s wife;

(5)  The plaintiff is a libeller;

(6)  The plaintiff has done unfilial and improper acts towards the defendant;

(7)  The plaintiff lacked the ability to earn money;

(8)  The plaintiff bullied and pressurized the defendant;

(9)  The plaintiff has been guilty of bullying, threatening and intimidating behaviour;

(10)  The plaintiff threatened to unlawfully arrest and detain the defendant and/or his wife;

(11)  The plaintiff was blinded or motivated by greed and power;

(12)  The plaintiff was wanting in gratitude;

(13)  As the Head of Ping Yeung Village, the plaintiff had done bad things to the villagers of Ping Yeung Village and should thoroughly repent his misdeeds; and

(14)  The plaintiff was unworthy of inheriting.

B3.  The 2^nd Offending Video

14.  A video entitled “陳金華親述與兒子斷絕關係” has been published on the website of Oriental Daily News since 30 September 2018. At the beginning of the video, the defendant was holding a copy of the Offending Declaration in front of the camera. A reporter asked why he had made the said declaration. The defendant then said, inter alia, the following:

「第一，因為佢忤逆對付我...忤逆」

(the “3^rd Offending Words”)

15.  According to the plaintiff, the 3^rd Offending Words, in their natural and ordinary meaning, meant or were understood to mean, inter alia, that:

(1)  The plaintiff has been guilty of unfilial conduct; and

(2)  The plaintiff has done unfilial and improper acts towards the defendant.

B4.  The 3^rd Offending Video

16.  A video entitled “陳金華激動跪祠堂： 祖先明鑑” has been published on the website of Apple Daily and on YouTube since 1 October 2018. At the beginning of the video, the defendant was kneeing down apparently at an ancestral hall and said the following:

「希望祖先明鑑，希望保佑佢，覺悟其非，做返個好人」

17.  In the subsequent interview, he said, inter alia, the following:

「來追殺我，來欺負鄉民，比所有社會人士知道，佢對老竇幾咁忤逆...點知做咗十年，將嗰啲壞事變本加厲... …佢謀住我身家，已經將我啲祖屋佔有晒啦... …」

(the “4^th Offending Words”)

18.  According to the plaintiff, the 4^th Offending Words, in their natural and ordinary meaning, meant or were understood to mean, inter alia, that:

(1)  The plaintiff is a bad man or a crook;

(2)  The plaintiff bullied and pressurized the defendant;

(3)  The plaintiff has been guilty of bullying, threatening and intimidating behaviour;

(4)  As the Head of Ping Yeung Village, the plaintiff bullied and mistreated the villagers of Ping Yeung Village;

(5)  The plaintiff has been guilty of unfilial conduct;

(6)  The plaintiff has done unfilial and improper acts towards the defendant;

(7)  The plaintiff did bad things and/or made bad things worse as the Chairman of Ta Kwu Ling District Rural Committee;

(8)  The plaintiff is a greedy person; and

(9)  The plaintiff improperly took possession of properties belonging to another.

B5.  The 4^th Offending Video

19.  A video entitled “決裂父子村選鬥法 陳金華再斥忤逆仔打壓” has been published on the website of Apple Daily and on YouTube since 7 January 2019. That was another interview where the defendant, inter alia, said the following:

「佢非常之忤逆，搵 Facebook 嚟打壓我，冇果樣，講嗰樣。」

(the “5^th Offending Words”)

(the 1^st to 5^th Offending Words collectively as the “Offending Words”)

20.  According to the plaintiff, the 5^th Offending Words, in their natural and ordinary meaning, meant or were understood to mean, inter alia, that:

(1)  The plaintiff has been guilty of unfilial conduct;

(2)  The plaintiff has done unfilial and improper acts towards the defendant;

(3)  The plaintiff pressurized and harassed the defendant;

(4)  The plaintiff is a liar; and

(5)  The plaintiff made things up without any evidence.

C.  Witnesses

21.  The plaintiff has filed three witness statements and attended the assessment to give oral evidence. He called no other witnesses.

22.  The defendant has filed two witness statements. However, at the assessment, he only adopted his supplemental witness statement but not his original statement. In his supplemental statement, as will be explained below, the defendant made an apology to the plaintiff for the first time. The plaintiff contends that such an apology shall be ignored for various reasons to which I shall return. The defendant attended the assessment to give oral evidence and called no other witnesses.

23.  On the whole, I find the plaintiff’s testimony to be candid and coherent. There was in fact little cross-examination of the plaintiff on most of the facts and matters stated in his three witness statements. In his closing submissions, Mr Lau also fairly refrained from attacking the plaintiff’s creditability or reliability. I find the plaintiff to be a credible and reliable witness and I accept his evidence.

24.  On the other hand, I do not find the defendant to be entirely candid. His testimony was at times evasive and at others self-contradictory. As will be further explained below, I do not accept his evidence in particular regarding:

(1)  His motive for publishing the Offending Words; and

(2)  His explanation for issuing the belated apology.

D.  Legal principles

25.  The principles set out in the following paragraphs are well-established and not in dispute.

D1.  General damages

26.  An award of general damages is compensatory in nature and must compensate the successful plaintiff for the damage to his reputation; vindicate his good name; and take into account of the distress, hurt and humiliation which the defamatory publication has caused: John v MGN Ltd [1997] QB 586, 607; approved in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 at §35 per Ribeiro PJ.

27.  In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place: John v MGN Ltd [1997] QB 586, 607; approved in Oriental Daily at §39 per Ribeiro PJ.

D2.  Aggravated damages

28.  Aggravated damages are part of the compensatory award and may be granted to “compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way: Oriental Daily at §112 per Ribeiro PJ.

29.  Any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff’s pride and self-confidence: McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86, 104 per Pearson LJ; approved in Oriental Daily at §113 per Ribeiro PJ.

30.  The conduct must be of a kind that rubs salt into the wound: Oriental Daily at §130 per Ribeiro PJ.

E.  Issues

31.  It is convenient to resolve the following issues before assessing the damages in respect of the Offending Words:

(1)  Whether there should be separate awards or a global award;

(2)  Whether republications in websites have been pleaded by the plaintiff in respect of the Offending Declaration;

(3)  The impact, if any, of the apology offered by the defendant shortly before the assessment hearing; and

(4)  Whether the defendant’s conduct was actuated by malice;

E1.  Separate or global award

32.  Mr Lau submits that a global approach is suitable in this case because the five sets of Offending Words are closely related to each other, and the readers are also similar. Thus, he argues that it is more appropriate to adopt a global approach in assessing the general damages and the aggravated damages to minimize the overlapping effect.

33.  On the other hand, Mr Ng submits that apart from performing separate assessment for the Offending Declaration and the Offending Videos, the court ought also to perform separate assessment for each of the four Offending Videos. He argues that only by doing so will the court be able to give proper weight to the differences in the seriousness of the defamatory meanings of the 2^nd to 5^th Offending Words, which the court will not be able to do if a global assessment were to be adopted.

34.  I am of the view that separate assessment for each of the five Offending Words is appropriate in the present case. This is because the nature, medium and extent of publications are very different in the five incidents. Contrary to Mr Lau’s submissions, it seems that the readers of the physical copies of the Offending Declaration published on the Oriental Daily News and the watchers of the Offending Videos published on the various websites may be different. The extent of publication of the Offending Declaration may also be very different from that of the Defamatory Videos. Further, global assessment seems inappropriate as the seriousness of the five Offending Words varies substantially. For example, the serious allegations of the plaintiff being guilty of false imprisonment and other more serious misdeeds were only present in the 2^nd Offending Words and not others.

E2.  Whether republications in websites have been pleaded

35.  Mr Lau raises a pleading point that in the Statement of Claim, issue of republishing is pleaded in a “very restrictive manner”. He submits that the plaintiff has only pleaded at paragraph 3 that the Offending Declaration “was published on the front page of the 29 September 2018 issue of Oriental Daily News … and was republished in a number of newspapers in Hong Kong including Apply (sic) Daily … (emphasis added)”. Mr Lau argues that republishing of the Offending Declaration in “websites” have not been pleaded. Therefore, Mr Lau argues that the plaintiff should not be allowed to rely on those republications on the various websites in this assessment.

36.  I am unable to agree to those submissions. I agree with Mr Ng that “newspapers” should not be interpreted so narrowly nowadays. I think the court can take judicial notice that whilst newspapers have traditionally been published in print, nowadays most newspapers in Hong Kong are also published on websites. It therefore seems artificial to restrict the word “newspapers” to only those in print and exclude those which are published on websites.

E3.  The apology by the defendant

37.  By three letters before action all dated 4 June 2020 (sent to the defendant at different addresses), the plaintiff’s solicitors demanded for an apology from the defendant. There was however no response to those letters.

38.  Shortly before the assessment hearing, the defendant filed a supplemental witness statement where he explained the reasons for his conduct and made an apology as follows:

“4. The Plaintiff is my eldest son. Although our relationships have not been good for years, but deep in my heart, he is still my lovely son. I am an old-fashioned father as I am an indigenous villager grown up in the New Territories.

5. Like the Chinese said, 愛之深，恨之切！ (The deeper the lover, the deeper the hatred!) I wish to get my son’s attentions.

6. However, I used the wrong approaches like all the old-fashioned fathers in the New Territories Village. I only know to express my loneliness and demand for love by using the reprimand approaches. I always treated myself in the high position and never looked at my own issues. With a hindsight, I cannot think of a reason for me to publish a statement to sever the father and son relationship with the Plaintiff, and to give bad comments on the Plaintiff and our relationship. It is the biggest failure in my life.

7. No matter what I said and done in the past, including what I had said as set out by the Plaintiff in the Statement of Claim and my Witness Statement dated 3 March 2021, I felt very sorry, and I wish to use this opportunity to make an open apology to the Plaintiff, my son.

8. My health keeps deteriorating over the years, some time, I cannot help falling into moody behaviours, and made poor and impulsive decisions after taking my various medicine.

9. I just wish my son can appreciate that it is not easy for his old father to say sorry and to make an apology. I wish he can accept my apology.”

39.  Mr Lau submits that the defendant has therefore offered his sincere apologies although it was made “a bit late”. Mr Lau further submits that at the assessment hearing, the defendant did not adopt his first witness statement which touched on the history of the parties. Mr Lau argues it was done to avoid causing further injury to the feeling of the plaintiff. Mr Lau also notes that during cross-examination, the defendant had repeatedly offered his apologies for at least four times and stressed that he must apologize to the plaintiff. Mr Lau submits that the above indicates that the defendant has been adopting a very reasonable approach in this action, aiming not to cause additional damage to the feeling of the plaintiff.

40.  On the other hand, Mr Ng submits that for the following reasons, damages should not be reduced on account of the defendant’s belated apology:

(1)  The defendant has refused or failed to reply to the plaintiff’s letters before action or offer any apology to the plaintiff;

(2)  The apology is so late as to be practically worthless. For a period of over two years from the time this action was instituted on 8 July 2020 to 23 August 2022 (the date on which the defendant’s summons to adduce his supplemental witness statement was filed), the defendant has never offered any apology to the plaintiff;

(3)  The belated apology is wholly disproportionate to the damages caused to the plaintiff by the defendant’s publication of the Offending Declaration on the entire front page of the Oriental Daily News and of the Offending Videos which were available for viewing by anyone who has access to the internet. If the defendant were genuine in his apology, he ought to publish the apology on the entire front page of Oriental Daily News;

(4)  In Hung Yuen Chan Robert v Sing Tao Ltd & Anor [1996] 4 HKC 539, at the commencement of the hearing, the defendant through counsel (who accepted that the apology was very late in the day) apologized to the plaintiff in open court for the distress and embarrassment that the article had caused to the plaintiff. Le Pichon J (as she then was) held (at 543D-G) that the apology was so late as to be practically worthless and that damages should not be reduced on account of the belated apology;

(5)  During cross-examination, the defendant denied receipt of the three letters before action. However, the defendant’s case is self-contradictory and incredible because such stance was contradicted by his opening submissions in which he never said he had not received the three letters before action. Instead, he said he “did not respond to the letters”; and

(6)  It is notable that in the plaintiff’s opening submissions which was filed on 11 August 2020, 14 days before the Pre-Trial Review, the plaintiff expressly alluded to the principle that the defendant’s refusal to apologize justifies an award of aggravated damages. Then, on 23 August 2022, the defendant took out a summons returnable before the Pre-Trial Review seeking leave to file and serve his supplemental witness statement in which the defendant mentioned for the first time of an apology. This clearly demonstrates that the defendant’s belated apology is a tactical move which should be wholly disregarded when the court performs assessment of aggravated damages.

41.  I agree with Mr Ng. The defendant was unable to give any satisfactory explanation as to why he refused or failed to tender an apology to the plaintiff despite the three letters before action, the service of the Statement of Claim and the plaintiff’s witness statements. His attempt during cross-examination to shift the blame to his solicitors was disingenuous. I agree that his belated apology is merely a tactical move to reduce damages and therefore should be disregarded.

E4.  Whether the defendant’s conduct was actuated by malice

42.  Mr Lau submits that the defendant’s conduct was caused by his crave for attention of the plaintiff, his eldest son. Mr Lau argues that the defendant’s upset can be seen from the Offending Words such as:

(1)  “不肖長子” and “奉勸世人，百行須以孝為先” in the Offending Declaration;

(2)  “望子成龍” in the 1^st Video;

(3)  “因為我病咗對我不聞不問” in the 2^nd Video; and

(4)  “客家人以大仔為榮” in the 3^rd Video.

43.  Mr Lau also notes that during cross-examination, the defendant repeatedly said that he published the statements not for injuring the plaintiff or for the Election, but instead for love and care. For example, the defendant said “施手術都無嚟睇過我，我幾傷心” and “希望可以關心我，和好如初” and “我目標希望和好如初，我都幾十歲人”. Mr Lau therefore argues that the defendant was not intending to attack the plaintiff with malice; instead, as an old-fashioned father and indigenous villager, he was just trying to look for love and care but unfortunately used the wrong approach.

44.  On the other hand, Mr Ng submits that the defendant published the Offending Words maliciously, and with a dominant improper motive to injure the plaintiff and/or damage the plaintiff’s chance of being re-elected as the Head of Ping Yeung Village, and consequently his chance of being re-elected as the Chairman of Ta Kwu Ling District Rural Committee and his chance of being re-appointed as a member of North District Council, because:

(1)  The defendant stated in paragraph 16 of his witness statement that he and the plaintiff “stood for the election for the Indigenous Inhabitant Representative for Ping Yeung Village in the 2019 Village Representative Election held on 6 January 2019” and that his publication of the Offending Declaration was “for the purpose of avoiding any correlation between the plaintiff and [the defendant]”. The defendant had therefore admitted the clear connection between the publication of the Offending Declaration and the Election;

(2)  In the Offending Declaration, the defendant specifically linked the defamatory words “不肖子陳崇輝” with the official positions held by the plaintiff as the Chairman of Ta Kwu Ling District Rural Committee and Village Head of Ping Yeung Village (“新界打鼓嶺鄉事委員會主席暨坪洋村村長”);

(3)  The defendant admitted under cross-examination that at the time when he published the Offending Declaration, he intended to run for the Election;

(4)  The Offending Words were calculated to disparage the plaintiff in his office as the Head of Ping Yeung Village and/or Chairman of Ta Kwu Ling District Rural Committee. In particular, by the 2^nd Offending Words, the defendant attacked and falsely accused the plaintiff as the Head of Ping Yeung Village of having done bad things to the villagers of Ping Yeung Village and should thoroughly repent his misdeeds (“痛改前非”). Furthermore, by the 4^th Offending Words, the defendant attacked the plaintiff and falsely accused the plaintiff as the Head of Ping Yeung Village of having bullied and mistreated the villagers of Ping Yeung Village (“我的鄉民”) and falsely accused him, as the Chairman of Ta Kwu Ling District Rural Committee for ten years, of having made bad things worse (“將壞事變本加厲”).

45.  Mr Ng also submits that there is no basis for the defendant’s submissions that in publishing the Offending Words, his “prime motive is to attract the attention of his elder son for love and care”, or that “the defendant was deeply upset for the lack of care and love from the plaintiff as his eldest son”, because:

(1)  These are plainly recent fabrications on the part of the defendant which only surfaced for the first time in the defendant’s supplemental witness statement, which was dated 22 August 2022, more than two years after this action was commenced on 8 July 2020;

(2)  The defendant’s submissions also defy common sense and logic. One does not need to publish a defamatory declaration on the entire front page of a popular newspaper to get his son’s attention;

(3)  The defendant’s submissions are also contradicted by the undisputed facts and circumstances of this case which clearly demonstrate that the relationship between the plaintiff and the defendant was quite distant as the defendant had in or about 1985 began deserting Madam Lee Kam Tai and their four children, including the plaintiff, and had an extra-marital affair with another lady and co-habited with her; and

(4)  It is futile for the defendant to refer to bits and pieces of what the defendant said in the Offending Videos or under cross-examination without addressing the overall incredibility or unreliability of the defendant’s evidence as a whole. In any event, the purported quotations cited by the defendant are out of context and misconceived as they were uttered for the purpose of or were a prelude to the defendant’s publication of the Offending Words.

48.  I agree with the submissions of Mr Ng. The defendant’s case on his craving for the plaintiff’s attention never featured until shortly before the hearing. In his original witness statement, there was not a shred of evidence upon which such a case could be based. Instead, in this earlier statement, the defendant explained how his relationship with the plaintiff had deteriorated and that he published the Offending Declaration for the purpose of avoiding any correlation between them. The defendant’s submission on his motive is therefore rejected. I find that the dominant motive of the Offending Words was to damage the plaintiff’s chance in the Election and therefore the defendant was actuated by malice.

F.  Quantum

49.  I am indebted to Mr Ng and Mr Lau for their detailed summaries of comparable cases, which I found most helpful. On the other hand, I bear in mind that every case is decided on its own facts and there is usually no direct comparator. As explained by Le Pichon J (as she then was) in Hung Yuen Chan Robert v Hongkong Standard Newspapers Ltd & Others [1996] 4 HKC 519 at 536G-H:

“As the circumstances of each libel are likely to differ and the factors to be taken into account depend on the facts of each individual case, it is difficult to extrapolate from previous awards unless there are significant similarities …”

50.  In this regard, I would also mention that Mr Ng has provided the court with three detailed schedules of comparable cases which are classified as “Media Cases”, “Non-media Cases” and “Internet Cases”. The plaintiff relies on the “Media Cases” in support of its claim for general damages for the Offending Declaration, the “Non-media Cases” in support of its claim for aggravated damages for all the defamatory publications, and the “Internet Cases” in support of its claim for general damages for the Offending Videos. The above categorization appears to be a central theme running through the plaintiff’s case on quantum. The plaintiff submits that when a comparable case falls outside the categorization of the case under consideration, its reference value will be small. As such, the plaintiff seeks to distinguish some of the comparable cases submitted by the defendant primarily on the basis that they are not “Media Cases” or “Internet Cases”. In this regard, the plaintiff relies on International Social Service (Hong Kong Branch) v Vision First Limited (unrep., HCA 683/2014, 23 June 2017) and argues that in that case, Chung J expressly distinguished[1] between that case (which is an internet case) and media cases and held that because of the vast difference of extent of publication, the awards made in the mass media decisions cannot provide a good guidance.

51.  With respect, I do not consider a straitjacket categorization of the cases to be particularly useful in the present assessment. In International Social Service (Hong Kong Branch), Chung J was distinguishing the small extent of publication in that case (i.e. 800)[2] with the larger extents of publication in mass media decisions. His Lordship’s focus was “the vast difference in the extent of publication”. He was certainly not saying that purely because of their categorizations, media cases will always have little relevance in internet cases, or vice versa, in the assessment process. Insofar as the extent of publication is concerned, I think ultimately it should be the number, instead of the medium, that matters.

52.  In summary, the plaintiff submits that the court ought to award general and aggravated damages of respectively $1 million and $200,000 for the Offending Declaration. It is further submitted that, as the award for general damages should reflect the seriousness of the 2^nd and 4^th Offending Words, the court ought to award general damages of $300,000 for each of them and general damages of $200,000 for each of the 3^rd and 5^th Offending Words, with an award of aggravated damages of $200,000 for the 2^nd to 5^th Offending Words.

53.  On the other hand, the defendant submits that the appropriate award for general damages for all Offending Words is $650,000 to $700,000. In case the court is minded to award aggravated damages, the defendant submits that the sum should be less than or in the range of $100,000.

54.  In this assessment, I accept the meanings pleaded by the plaintiff in the Statement of Claim, as they are clearly the natural and ordinary meanings of the Offending Words. As explained below, Mr Lau has in fact only made limited challenges to those meanings.

F1.  Offending Declaration – 1^st Offending Words

55.  Mr Lau submits that the damage caused by the 1^st Offending Words is on the low side because:

(1)  The words “不肖長子” and “奉勸世人 百行須以孝為先” apparently go to the Chan’s family issue, which is much less serious than an attack on the honesty, integrity or conduct in an official position or involvement in criminal offences. It does not necessarily carry all the meanings as pleaded in the Statement of Claim;

(2)  The word “不肖” may well be used in a very restricted manner or in a negligent way to express his upset about the plaintiff’s failure to visit him;

(3)  When “不肖” was read together with “百行須以孝為先”, especially in the context of announcing the severance of father and son relationship, the extent of damage to the plaintiff would be much less;

(4)  The defendant was referred as the Head of Ping Yeung Village and the Chairman of Ta Kwu Ling District Rural Committee. However, the declaration does not refer to any election issue. Any bystander reading the Offending Declaration will take it as a family issue between the plaintiff and the defendant, and the chance of relating the Offending Declaration to the Election will be low; and

(5)  The defendant admitted liability and therefore the issue of advancing a defence of no merit does not apply.

56.  On the other hand, Mr Ng submits that the 1^st Offending Words were seriously defamatory of the plaintiff because:

(1)  They suggested that the plaintiff was an unworthy man, that the plaintiff was useless and good-for-nothing; that the plaintiff has been guilty of dishonourable conduct, that as a son, the plaintiff is not as good as his father (the defendant) and that the plaintiff has been guilty of unfilial conduct;

(2)  The Offending Declaration was published on the entire front page of Oriental Daily News, a daily Chinese newspaper with a very wide circulation in Hong Kong. The readership of Oriental Daily News can be gleaned from the bottom at page 4 of the same issue of Oriental Daily News which contained the Offending Declaration, i.e., Oriental Daily News has been the number one circulation newspaper in Hong Kong for a straight 42 years, with a readership of 3,486,550;

(3)  The Offending Declaration was re-published in a number of newspapers and/or their websites in Hong Kong; and

(4)  The Offending Declaration and the 1^st Offending Words were calculated to disparage the plaintiff in his office as the Head of Ping Yeung Village and/or Chairman of Ta Kwu Ling District Rural Committee. Notably, in the Offending Declaration, immediately after he defamed the plaintiff by stating “不肖長子陳崇輝”, the defendant specifically mentioned that the plaintiff was the Chairman of Ta Kwu Ling District Rural Committee and the Village Head of Ping Yeung Village (“新界打鼓嶺鄉事委員會主席暨坪洋村村長”). Some of the newspapers which republished the Offending Declaration and/or 1^st Defamatory Words or the gist thereof also specifically mentioned the Plaintiff’s official posts.

57.  I agree with Mr Lau that nothing in the declaration relates to any criminal offences or the professionalism of the plaintiff. I also accept that the defendant had admitted liability at an early stage.

58.  However, with respect to Mr Lau, I do not agree that the words “不肖” only means unfilial and does not mean unworthy, good-for-nothing, or not as good as his father in the context of this case. I agree with Mr Ng that “不肖” is defined in the leading dictionaries as including the said pleaded meanings[3]. Further, the words “不肖” must also be construed against the Offending Declaration as a whole. The 1^st Offending Words included the allegation that the plaintiff’s rights of access to the ancestral hall would also be restricted (“其踏足陟雲祖堂祭祠之權利，亦將受到限制”). This supports a more serious defamatory meaning that the plaintiff was an unworthy man and/or the plaintiff was useless and good-for-nothing, as opposed to the lesser defamatory meaning that the plaintiff was just not as good as his father. A son who is not as good as his father would not be precluded from accessing the ancestral hall; but a son who is an unworthy man and/or is useless and good-for-nothing could justifiably be excluded from accessing the ancestral hall. Further, to publish the Offending Declaration on the entire front page of Oriental Daily News is a serious matter, and if the defamatory meaning of the words “不肖” were merely that the plaintiff was not as good as his father, then it was absolutely unnecessary for the defendant to have published the Offending Declaration on the entire front page of Oriental Daily News. Plainly, it was only because the defamatory meanings of the words “不肖” were that the plaintiff was an unworthy man and/or the plaintiff was useless and good-for-nothing that the defendant saw fit to publish the Offending Declaration on the entire front page of Oriental Daily News.

59.  Further, I do not think the characterization of the plaintiff as not only “unfilial”, but unfilial to an extent that triggered a severance of father and son relationship, can be said to be not serious in itself. Instead, I think such an attack would no doubt cause considerable damage to the plaintiff as a public figure in the New Territories.

60.  I also agree with the plaintiff that the defendant should be responsible for the republications. Given the prominent publication on the entire front page of Oriental Daily News, the sensational words used, and that both the plaintiff, the defendant and their family were apparently well-known in the North District/Ta Kwu Ling, the defendant must be considered to have intended or authorized the republications.

61.  On the other hand, however, I have some doubt about the extent of publication of the Offending Declaration as asserted by the plaintiff. In paragraph 26 of the plaintiff’s closing submissions, it is submitted that the readership of the Offending Declaration is “in the millions”. In this regard, the plaintiff relies on three statements at page 4 of the same issue of Oriental Daily News which published the Offending Declaration, which states as follows:

“東方日報連續42年銷量第一”;

“讀者人數3,486,550人”; and

“資料來源：Kantar TNS 市場研究公司（2017 年 9 月研究報告）”.

62.  I do not think I can simply adopt this figure as the extent of the publication of the Offending Declaration on 29 September 2018. This is because:

(1)  It is not clear whether the said readership is a daily, weekly, monthly or yearly figure;

(2)  It is unclear about the statistical methodology adopted in the said research study;

(3)  Most importantly, it is not known how many such “readers” in the said research study were readers of physical newspapers and how many of them were online readers. This distinction is important because as explained above, I accepted the plaintiff’s submissions that newspapers nowadays have both print and online versions. However, in the present case, all that the plaintiff has shown is the publication of the Offending Declaration on the front page of the print version of the 29 September 2018 issue of the Oriental Daily News. However, there seems to be no evidence that the Offending Declaration has also been published on the online version of the newspaper. Without such evidence, I do not think I can assume that all declarations (or other non-news contents such as announcements and advertisements) that are published in the physical newspapers will also necessarily be published in the online newspaper. On the contrary, everyday experience appears to suggest otherwise.

63.  In the circumstances, whilst I accept that the print version of Oriental Daily News must still have a wide circulation, I do not think the plaintiff has proved that the extent of the readership of the Offending Declaration is as high as he has submitted.

64.  In respect of quantum, I find the following cases to be appropriate comparable cases for the present case.

65.  In Yu Sau Ning Homer v Wong Wan Keung & Ors [2020] HKDC 40, the defendants sent two letters to all the 250 units of an industrial building in which the defendants alleged that the plaintiff, then chairman of the management committee of the incorporated owners of the building, who was also a businessman sitting on a number of public bodies, (a) was engaged in illegal, unscrupulous and unethical conduct in the election of the chairman, and that he deliberately misled the owners into believing that he was the only candidate in the election when that was not the case; and (b) directed the management office to be his campaign headquarters and to prepare proxy forms pre-printed with his name so as to canvass votes illegally and mislead owners. Aggravated damages were awarded due to the fact that the defendants persisted in contesting the claim up to the every end and maintaining the defence of justification up until the lodging of their opening submissions and that they failed to apologize to the plaintiff notwithstanding the demand letters. The plaintiff was awarded general damages of $300,000 for each of the two offending letters and aggravated damages of $200,000 for each of the two offending letters.

66.  In Chan Iu Seng v Ko Choi Hin & Ors (unrep., HCA 2901 & 2935/2004, 28 January 2010), the plaintiffs and the defendants were all members of a clan association. Both plaintiffs enjoyed substantial standing and reputation both within the association and in the community. Both held a number of public offices in Hong Kong and also held responsible positions in various consultative, advisory and voluntary organizations in Hong Kong and Zhongshan. The 1^st plaintiff was also awarded the Bronze Bauhinia Star Medal in 2003. In a circular apparently sent or circulated to all members of the association (about 6,000), the defendants made unpleasant and serious attacks against the plaintiffs’ integrity, honesty and propriety in conduct, including conduct in the affairs of the association. They were accused of dishonesty, corruption, abusing their power and position in the association and even causing the death of a fellow director. The defendants had not retracted from the Circular. There was also no offer of apology. On the other hand, the defendants had run a restrictive defence against the claims. An award of $300,000 for each of the plaintiff in general damages was ordered.

67.  In Lo Sam Shing v Li Fong (unrep., HCA 1803/2011, 14 March 2014), the defendant sent a letter which alleged the plaintiff, a candidate for the Tai Po District Council election, as being dishonest and failed to keep his promise to the defendant, guilty of undue delay in his informing the defendant of the decision of the government departments about the defendant’s complaint, incompetent and failing to discharge his duty as a District Councillor, not only failing to uphold the interests of the people in the Tai Po District, but was only interested in fame and glory, thereby causing harm to his constituency and “messing” up its business. The publication was made to about 25 recipients of politicians and public figures in the locality, many of whom had business relationships with the plaintiff. The judge observed that the libel was published with a malicious motive of discrediting the plaintiff and of prejudicing his chance of success in the election and the defendant must have known his defence of justification, fair comment, and qualified privilege were bound to fail, but the defendant chose to contest, causing the increased anxiety to the plaintiff. The plaintiff was awarded general damages in the sum of $200,000. Aggravated damages in the sum of $100,000 was awarded because the defendant knew that his allegations in the defamatory letters were untrue in fact and in substances. His motive in publishing the defamatory letters was to discredit the plaintiff and to prejudice his chance of success in the election and therefore malicious. He turned down the plaintiff’s invitation to apologize. Although he must have known his defences were bound to fail, he still chose to contest the action to its very end.

68.  In terms of gravity, I think the defamations in the above cases are more serious than the Offending Declaration. On the other hand, the extent of publication of the Offending Declaration should be much higher than those in the comparable cases. However, I also note that the publications in those cases were directed at particular groups of readers who had specific relationship with the plaintiffs, which is not the situation in the present case. In Downtex Plc v Flatley [2004] EWHC 333 (QB), Tugendhat J said at §26 that:

“26. Publication to a relatively small number of persons who are already in a business or professional relationship with a claimant may be as serious or worse than a wider publication to persons who are not, and are unlikely to contemplate being, in such a relationship…”

69.  After considering all the circumstances, I think the appropriate award for general damages in this case is $350,000.

70.  As I have found that the defendant’s conduct was motived by the Election and he had failed to apologize, I think an award for aggravated damages in the amount of $100,000 is justified.

F2.  1^st Video – the 2^nd Offending Words

71.  The 2^nd Offending Words is seriously defamatory. In particular, it meant that the plaintiff had committed false imprisonment and other misdeeds which could have criminal consequences.

72.  As shown in the “properties” column of the 1^st and 2^nd Offending Videos, they were still available for viewing on the internet when the plaintiff’s solicitors downloaded the same onto their server on 31 August 2020. They have therefore remained on the internet for nearly two years.

73.  I think general damages in the amount of $200,000 is appropriate.

F3.  2^nd Video – the 3^rd Offending Words

74.  As pleaded by the plaintiff, the sting in this defamation is about the plaintiff being unfilial. I agree that compared to the other videos, the damage caused by the 2^nd Video should be less substantial. I think general damages in the amount of $80,000 is appropriate.

F4.  3^rd Video – 4^th Offending Words

75.  The 3^rd Offending Video (which contained the 4^th Offending Words) contains serious allegations about “覺悟前非，做返個好人”, “來欺負鄉民” and “將嗰啲壞事變本加厲”. However, I accept that unlike the 1^st Video, there is no specific allegation that plaintiff had committed possible criminal offences.

76.  As shown in the screen cap of the 3^rd Offending Video, as of 16 November 2020 the 3^rd Offending Video was still available for viewing on the internet and had remained on the internet for more than at least two years, whilst the number of hits thereto was 2,345.

77.  I think general damages in the amount of $140,000 is appropriate.

F5.  4^th Video – 5^th Offending Words

78.  Whilst I agree with Mr Ng that the defamatory words “冇果樣，講嗰樣” is also an attack on the plaintiff’s personality, I think its damage is much lower than that caused by the 2^nd and 4^th Offending Words.

79.  As shown in the screen capture of the 4^th Offending Video, as of 16 November 2020, the 4^th Offending Video was still available for viewing on the internet and had remained on the internet for more than at least two years, whilst the number of hits thereto was 2,833.

80.  I think general damages in the amount of $100,000 is appropriate.

F6.  Aggravated Damages for the 2^nd to 5^th Offending Words

81.  For the same reasons explained in paragraph 70 above, I think aggravated damages in the amount of $100,000 is appropriate.

F.  Conclusion

82.  Based on the matters aforesaid, I make the following orders:

(1)  The defendant do pay the Plaintiff:

(a)  the sum of $350,000 for general damages and $100,000 for aggravated damages in respect of the 1^st Offending Words;

(b)  the sum of $200,000 for general damages in respect of the 2^nd Offending Words;

(c)  the sum of $80,000 for general damages in respect of the 3^rd Offending Words;

(d)  the sum of $140,000 for general damages in respect of the 4^th Offending Words;

(e)  the sum of $100,000 for general damages in respect of the 5^th Offending Words; and

(f)  the sum of $100,000 for aggravated damages in respect of the 2^nd to 5^th Offending Words

with interest at judgment rate from the date of this judgment until payment; and

(2)  An order nisi that the defendant do pay the plaintiff’s costs incurred after 21 October 2020 (including the costs of and incidental to the assessment of damages), with certificate for Counsel, to be taxed if not agreed.

83.  I thank Mr Lau and Mr Ng for their helpful assistance.