TSUI WAI YIP v. LAM MO CHIU

DCCJ 4878/2017

[2021] HKDC 1520

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4878 OF 2017

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JUDGMENT

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Introduction

1.  This is the trial of a defamation case.

2.  The plaintiff Tsui Wai Yip (“Tsui”) is the owner of No 4, Block B, 12/F, Tung Lo Court, Nos 136-154 Tai Po Road, Nos 52-56 Shek Kip Mei Street, Kowloon (“Tung Lo Court”).

3.  The defendant Lam Mo Chiu (“Lam”) is the owner of No 4, Block A, 10/F and No 11, Block B, 2/F of Tung Lo Court.

4.  The defendant was also the chairman of the 21^st, 29^th, 30^th and 31^st sessions of the management committee of The Incorporated Owners of Tung Lo Court (“the IO”).

Alleged Defamatory Statements

5.  The statements, which are the subject matters of these proceedings, consist of 2 statements and are identified as the First Statements, which were contained in paragraph 1.6 of the minutes of the annual general meeting of the IO held on 24 September 2013 (“the 2013 AGM Minutes”), and the Second Statements, which were contained in paragraph 1.12 of the minutes of the annual general meeting of the IO held on 19 December 2015 (“the 2015 AGM Minutes”).  Both the 2013 AGM Minutes and the 2015 AGM Minutes bear Lam’s signatures.

The First Statements

6.  Paragraph 1.6 of the 2013 AGM Minutes is set out with the First Statements being underlined (See: 20 of TB):-

“由於有業主多年來一直拖欠法團的管理費及大維修工程分攤費, 法團為各業主利益及公平起見, 因此, 向該些業主採取法律, 以追討欠款, 此外, 本廈B座1/F 8室業主霸佔大廈公眾平台並加建房屋, 法團曾多次以口頭及書信要求該業主將僭建屋拆走, 但該業主不但沒有理會, 更向法團提出反申索, 法團已入稟「土地審裁處」, 有關的訴訟仍在進行中, 而現時法團仍有多宗訴訟正在進行中, 包括:

DCMP 1381/2011 (梁美春案)

LDBM 134/2011 (李健秀案)

LDBM 3333/2011 (徐偉業案)

2465案在高等法院進行中(地下停車場薛秀明)

主席強調, 由於有一小撮業主經常企圖擾亂本廈的正常運作, 令法團多年來面對多宗不必要的訴訟, 引致法團的支出增加不少。”

The English translation of the First Statements is as follows:-

“Due to the fact that there are owners continuously in default of the IO’s management fees and contribution of renovation fees, so the IO acting for the sake of all the owners’ interests and fairness, took legal action against these owners in order to claim the arrears … LDBM 3333/2011 (Tsui Wai Yip case) … The Chairman emphasized that because there are a small group of owners who are frequently attempting to disturb the normal operations of this Building, caused the IO to face many unnecessary litigations, caused great increases of the IO’s expenses”

The Second Statements

7.  Paragraph 1.12 of the 2015 AGM Minutes is set out with the Second Statements being underlined (See: 31 of TB):-

“關於區域法院案件編號3333/2011徐偉業案, 本法團在案件開始時, 本法團不想在財政上遭受不必要的損失, 已與徐偉業道歉及講和, 但徐偉業不接受, 並誣蔑法團各委員, 更茅頭直指法團主席及秘書, 目的是想搞亂本大樓之正常運作, 而直接影響的必定是本樓各業主之利益, 後經區域法院判決徐偉業輸, 但徐偉業不服上訴高等法院, 案件編號CACV27/2015判徐偉業勝訴並要求法團賠港幣$200,000元給徐偉業。法團會遵從法庭判決, 但法團會再上訴。在2015年11月25日法庭頒令, 徐偉業可以向法團追討訟費, 但必須在14天內, 並必須列出追討訟費理據並交於上訴庭, 與此同時, 法團也可以在14天内駁斥徐偉業。”

The English translation of the Second Statements is as follows:

“In relation to District Court case No. 3333/2011 Tsui Wai Yip case, at the beginning of the case, the IO did not want to incur unnecessary financial loss, had made an apology to and suggested reconciliation with Tsui Wai Yip. Yet Tsui Wai Yip did not accept it and maligned all the members of the IO, further targeted at the Chairman and Secretary of the IO. Aiming at messing up the normal operations of the Building. The direct impact must operate against the interests of all the owners of the Building”

The issues

8.  The issues that I need to address are as follows:-

(a) What is the natural and ordinary meaning of the FirstStatements?

(b) What is the natural and ordinary meaning of the Second Statements?

(c) Do the First Statements carry the meaning as pleaded by Tsui?

(d) Do the Second Statements carry the meaning as pleaded by Tsui?

(e) Are the First Statements defamatory of Tsui?

(f) Are the Second Statements defamatory of Tsui?

(g) Whether Lam has a defence of justification?

(h) Whether Lam has a defence of fair comment?

(i) Whether Lam has a defence of qualified privilege?

(j) If the First Statements and the Second Statements are defamatory of Lam and the purported defences do not succeed, what is the appropriate amount of damages that should be awarded to Tsui?

The Witnesses

9.  At trial the following witnesses testified for the plaintiff:-

(a) Tsui Wai Yip, the plaintiff;

(b) Wong Lo; and

(c) Leung Yin Ying

10.  On the defendant’s side, the following witnesses testified:-

(a) Lam Mo Chiu, the defendant;

(b) Yeung Wai Lin;

(c) Kong Yiu Man; and

(d) Tse Ching Yum

11.  All the witnesses confirmed and adopted their respective witness statements in court.  At this moment, I do not find it useful to narrate each and every witness’s testimony in full due to their length and complexity.  As examples, Tsui’s witness statement and supplemental witness statement consist of 19 pages and 14 pages respectively excluding the exhibits while Lam’s witness statement and supplemental witness statement consist of 11 pages and 18 pages respectively excluding the exhibits.

12.  Instead, I will first outline the history of the disputes involving Tsui, Lam and the IO which would help one to understand the background and the issues in front of the court.  Such history and events can be gleaned from documents which should not be in dispute.  References will be made to the witnesses’ testimonies if and when necessary.

History of disputes

13.  According to Tsui, he became owner of No 4, Block B, 12/F of Tung Lo Court in 1980 (“Tsui’s Property”).  He started to reside at his Property in or about 2006 after the birth of his youngest daughter.  Around that time, Tsui retired from his business and stayed home to look after the daughter upon the request of his wife.

LDBM 293/2010

14.  On about 23 September 2009, Wong Lo, who is Tsui’s witness in this case, approached Tsui.  Both of them were of the view that the then 29th session of the management committee (the “MC”) of the IO was operating in the dark.  So they intended to call an owners’ meeting to pass a resolution to replace the existing members of the MC.

15.  On 22 October 2010, they gathered not less than 5% of shares held by the owners of Tung Lo Court and requested Lam, the chairman of the MC, to convene a general meeting of the IO to pass the following proposed resolutions (See: 222 of TB):-

(a) to remove the chairman, the secretary, the treasurer and existing members of the management committee; and

(b) to appoint the new chairman, the new secretary, the new treasurer and new members of the management committee.

16.  Tsui was appointed by the requesting owners as their contact person.  But the MC apparently did not accede to the request immediately.  As a result, Tsui applied to the Lands Tribunal on 6 November 2010 in LDBM 293/2010 seeking an order to convene an owners’ meeting. (See: 226 of TB)

17.  On 2 February 2011, Deputy District Judge J Wong ordered the IO to convene a general meeting on or before 16 February 2011 and such meeting shall be held on or before 26 March 2011. (See: 227 of TB)

18.  A general meeting was held pursuant to the order of Deputy District Judge J Wong.  But Lam, as chairman of the MC, used a single proxy which allegedly represented 240 shares held by the owners of Tung Lo Court.  Tsui was not satisfied with this and applied to the Lands Tribunal on 1 April 2011 for a declaration of voiding it.

LDBM 332/2010

19.  On 23 November 2010, the IO issued an open letter to all the owners. (See: 229 of TB)  In the 3^rd paragraph of the letter, it was stated that there was a resolution passed at a meeting that the car parks in the basement of Tung Lo Court would be closed for 2 months during the renovation period so as to avoid damage to the cars parked thereat. The owners of the cars parked thereat were required to move their cars out of the car parks.

20.  According to Tsui, he had not heard of any such resolution being passed.  He made a written request to the IO for production of the minutes of the general meeting which contained such resolution.  But his request was not acceded to.

21.  On 16 December 2010, Tsui made an application to the Lands Tribunal in LDBM 332/2010 for an order against the IO for production of the aforesaid minutes.

LDBM 10/2011

22.  On 8 March 2010, the IO registered a memorandum of charge against Tsui for outstanding repair fees in the total sum of HK$1,956. (See: 239-240 of TB)

23.  On 11 January 2011, Tsui made an application to the Lands Tribunal in LDBM 10/2011 to discharge the memorandum of charge.

24.  On 6 September 2011, His Honour Judge Michael Wong ordered that the memorandum of charge be vacated and the IO to pay Tsui’s costs of application. (See: 242-243 of TB)

LDBM 87/2011

25.  LDBM 87/2011 is a legal action brought by the IO on 1 April 2011 against 34 owners of Tung Lo Court for failing to make contribution of renovation fees.  Tsui was the 33^rd respondent in these proceedings and he represented 21 co-respondents.

26.  On 30 May 2010, the general meeting of the owners passed a resolution approving the carrying out of renovation works. (See: 375-376 of TB)  Subsequently, a contract for renovation works was signed between the IO and the contractor Tat Hing Construction Co Ltd on 15 July 2010. (See: 378-401 of TB)  The contract sum for the renovations works was around HK$19,687,850.20 which included a sum for reserve funds at HK$1,287,990.20. (See: 404-405 of TB)

27.  Demand notices for contributions towards the renovation works were issued by the IO’s solicitors Messrs SK Lam, Alfred Chan & Co to the owners on 16 August 2010, 4 November 2010 and 19 November 2010.  However, some of the owners failed to comply with the demand notices.

28.  The IO started LDBM 87/2011 on 1 April 2011 to claim against the 34 defaulting owners for their contributions.  The trial of the matter took 3 days before Deputy District Judge Roy Yu from 29 February 2012 to 2 March 2012.  On 26 April 2012, the learned Deputy District Judge handed down judgment ordering the defaulting owners to pay their contributions.  Tsui, as the 33^rd respondent was required to pay his contribution to the IO in the sum of HK$48,793.  In the proceedings, Tsui also acted as representative for other 21 respondents.  Tsui and 16 co-respondents were ordered to pay 70% of the costs of the IO.

DCMP 1381/2011, HCMP 2038/2013, HCMP 2067/2013 & CACV 52/2014

29.  DCMP 1381/2011 is a legal action brought by the IO against Leung May Chun Alison Aliance (梁美春) who was an owner of car park spaces nos 7, 15, 24, 25, 32 and 40 in Tung Lo Court.

30.  As can be seen from the judgment of Deputy District Judge R Lai dated 29 May 2013, the IO sought to enforce 18 memoranda of charge against Leung by way of an order for sale.  The 18 memoranda of charge were based on outstanding management fees, management contributions and repair contributions.

31.  The IO’s claim against Leung was settled just before the trial.  The focus of the trial before Deputy District Judge R Lai was Leung’s counterclaim against the IO for damage caused to her due to IO’s depriving her of access to the car parks.

32.  After a 4-day trial from 18 to 21 February 2013, Deputy District Judge R Lai handed down judgment on 29 May 2013 and awarded HK$10 nominal damages to Leung for the IO’s wrongful closure of the basement where Leung’s car parks were located and HK$10 nominal damages for wrongful refusal to issue smart cards to Leung. 

33.  Tsui acted as Leung’s witness in her case.  Tsui is not an owner of any car park himself.  But as can be seen from paragraph 54 of the judgment, the learned Deputy District Judge commented that Tsui “took great interest in the management of the Basement”.  He testified that it was not necessary to close the basement to effect the repair works ordered by the Building Authority.

34.  Both the IO and Leung sought leave from the Court of Appeal to appeal against the judgment of Deputy District Judge R Lai in HCMP 2038/2013 and HCMP 2067/2013.  Leung’s application for leave to appeal was refused.  But the Court of Appeal granted the IO’s application for leave to appeal on 6 March 2014.

35.  The substantive appeal of the IO was heard on 9 December 2014 in CACV 52/2014.  On 17 December 2014, the Court of Appeal allowed the IO’s appeal and ordered the followings:-

(a) Deputy District Judge R Lai’s order for nominal damages in the sum of HK$10 for the closure of the basement be set aside;

(b) Leung’s counterclaim based on the closure of the basement be dismissed;

(c) Leung do pay two-thirds of the costs of the counterclaim to the IO; and

(d) Leung do pay the costs of the appeal to the IO, to be taxed if not agreed.

DCMP 2465/2011 & HCMP 523/2013

36.  DCMP 2465/2011 is a set of proceedings started by the IO on 3 October 2011 against Sit Sau Ming (薛秀明) for enforcement of 4 memoranda of charge by way of an order for sale.

37.  Sit was the owner of car park spaces nos 17, 36, 59 and 60 of Tung Lo Court.  According to the originating summons, Sit was owing management fees and repair costs in respect of his car park spaces. (See: 551-581 of TB)

38.  The case was subsequently transferred to the Court of First Instance with a new case number HCMP 523/2013.  The IO and Sit reached settlement on 13 September 2017. (See: 890-891 of TB)

LDBM 134/2012

39.  LDBM 134/2012 is a case brought by the IO on about 15 May 2012 against 李健秀(“Lee”), who was the owner of No 8, Block B, 1/F of Tung Lo Court, for an injunction order to remove illegal structures erected by Lee on the common parts.

40.  The trial of the matter took place before His Honour Judge Ko on 2, 3, 4, 5 and 27 September 2013.

41.  On 9 October 2014, the learned judge handed down judgment allowing the IO’s claim and dismissing Lee’s counterclaim which was based on about 100 complaints.  The learned judge ordered Lee to pay the costs of the IO on an indemnity basis.

42.  Tsui was called by Lee as her expert witness in the case.  But the learned judge rejected his evidence and made the following comments in paragraphs 20 and 151 of the judgment:-

“20. 本席同意張大律師的批評, 李先生和徐先生均缺乏適當資格提供專家意見。更甚的是, 他們兩人均有利益衝突, 不能公正無私及獨立地協助法庭。李先生直接造成本案的違規事項, 更可能導致建築物事務監督早前向李女士發出清拆通知/命令, 徐先生則與法團存在其他糾紛和法律訴訟。本席拒絕接納他們為專家, 不會給予他們提供的所謂「專家證供」任何比重。李女士的案情 (尤其是反申索), 在缺乏專家證據支持的情況下大打折扣。

151.     但本席認為命令以彌償基準評定法團的訟費已足夠彌補法團的損失, 無需命令徐先生負責一部分訟費。徐先生在本案的角色固然關鍵, 但沒有證據顯示他就本案的抗辯和反申索向李女士提供財政支持。按現有證據, 徐先生極其量是向李女士和她的丈夫出謀獻計及提供訴訟材料, 但李女士是有獨立思考的, 並獲得法律意見, 她對徐先生言聽計從, 全盤接收徐先生的材料, 很大程度上是她的選擇。李女士在徵詢法律意見後堅持採納徐先生的材料作其抗辯和反申索, 現在被判敗訴, 須要承擔一般訴訟後果支付獲勝一方的訟費是合情合理。”

DCCJ 3333/2011, HCMP 3089/2014 & CACV 27/2015

43.  DCCJ 3333/2011 is a defamation claim brought by the IO against Tsui in relation to 4 open letters published by Tsui respectively dated 11 March 2011 (“D1”), 24 March 2011 (“D2”), 28 March 2011 (D 3”) and 27 April 2011 (“D4”). (See: 528, 529, 530 & 549 of TB)

44.  In the same action, Tsui counterclaimed for defamation against the IO in relation to 11 publications allegedly issued by the IO.  These 11 publications were respectively referred to as P1-P11 in the judgment dated 4 August 2014.

45.  The trial of the matter took 9 days before Deputy District Judge Mak on 25-28 February, 3-6 and 10 March 2014.  On 4 August 2014, the learned Deputy District Judge handed down the judgment.  It was held that the 4 Letters, ie D1-D4 referred to in the judgment, published by Tsui were defamatory of the IO.  As to Tsui’s counterclaim, the learned Deputy District Judge found that the IO had a defence to P5, P6, P7, P9, P10 and P11 but allowed Tsui’s counterclaim based on P1, P2, P3, P4 and P8.  Damages in the sum of HK$400,000 were awarded to the IO for the claim and damages in the sum of HK$450,000 were awarded to Tsui for the counterclaim.  Tsui was ordered to pay 55% of the costs to the IO.

46.  Tsui applied for leave to appeal against the judgment.  Deputy District Judge Mak heard the application on 19 September 2014 and refused the application in his written decision on 10 November 2014.

47.  Tsui then sought leave to appeal from the Court of Appeal in HCMP 3089/2014.  The Court of Appeal granted the application on 27 January 2015.

48.  The substantive appeal was heard on 26 June 2015 by the Court of Appeal in CACV 27/2015 and judgment was handed down on 3 August 2015.  The Court of Appeal overturned part of Deputy District Judge Mak’s ruling by finding that D1, D2, and D4 were not directed at the plaintiff IO but were directed against the MC, the Chairman, the Secretary and the head of security.  Due to the fact that the IO only succeeded in its claim against Tsui on the basis of D3, the damages awarded to the IO were reduced to HK$200,000. The Court of Appeal further ordered that there should be no order as to costs for the trial and that the IO should pay the costs of the appeal to Tsui.

49.  Mr Justice Poon, who was giving the judgment of the Court of Appeal, said this at paragraph 5:-

“The parties and some owners who sided with the defendant were embroiled in hot disputes about various matters including renovation of the Building, management of the Building and non-payment of management fees.”

This court’s observation

50.  The IO had been involved in at least 8 sets of litigation since November 2010.  Some of these cases became complicated with further hearings for application for leave to appeal and substantive appeal hearings.  Tsui was involved in most of these cases either as a party or as a witness.  Looking at the long history of disputes between Tsui and the IO, one would not be surprised that their relationship would not be harmonious.  In fact, it is a rather confrontational relationship.  This spirit of confrontation had also extended to the relationship between Tsui and Lam who was the Chairman of the 21^st, 29^th, 30^th and 31^st sessions of the MC of the IO.

51.  While what happened in the previous cases might not be directly relevant to the present case, the history would provide the context for understanding and interpreting the First Statements and the Second Statements.

Legal principles for interpreting statements

52.  In Bawang International (Group) Holdings Ltd & Anor v Next Magazine Publishing Ltd, HCA 1109/2010, Mr Justice Lok summarised the legal principles derived from leading textbooks and cases for determining the meanings of allegedly defamatory statements:-

“23. In order to succeed in a claim for defamation, a claimant has to show that defamatory matters with reference to the claimant have been published by a defendant.

24. The matters published are defamatory if they expose the claimant to contempt or ridicule by others and cause others to shun him. The matters would also be defamatory if they lower the claimant’s estimation in the eyes of right-thinking members of society and adversely affect his reputation.

Legal principles in determining the meaning of the alleged defamatory words

25. There is no dispute that the following principles are applicable for the court in determining the meaning of an alleged defamatory article.

26. In determining the meaning, words in an article are normally construed according to their natural and ordinary meaning, and the judge or jury has to ascertain the single meaning which the publication sued upon would convey to the mind of an ordinary, reasonable, fair-minded reader.

27. The article must be read as a whole. It is well established that the context and circumstances of the publication must be taken into account. A plaintiff cannot pick and choose parts of the publication. For example, a particular sentence may be considered defamatory, but there may be other passages which neutralize or mitigate its sting. A reasonable reader is assumed to have read the whole article complained of, and a defendant is entitled to have considered as part of the plaintiff’s case the whole of the piece from which the alleged libel is extracted.

28. In reading the article in its entire context, the court will also bear in mind the general tenor of the entire article. The fact that an article gives a generally uncomplimentary rendering of the claimant will obviously affect a reasonable reader’s understanding of the specific portions or statements in the article. The court will also consider the effect of the “visual impact” of the article on the readers.

29. As regards the meaning of the alleged defamatory words, it is trite that it is a question of fact to be read “in the sense in which ordinary persons, or in which we ourselves out of court … would understand them” and whether the words are capable of defamatory meaning is for the judge.

30. In Jeynes v News Magazines Ltd, Sir Anthony Clarke MR summarised the nature of the exercise:

“(1) The governing principle is reasonableness.  (2)    The hypothetical reasonable reader is not naïve but he is not unduly suspicious.  He can read between the lines.  He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.  (3) Over-elaborate analysis is best avoided.  (4) The intention of the publisher is irrelevant. (5)  The article must be read as a whole, and any ‘bane and antidote’ taken together.  (6)     The hypothetical reader is taken to be representative of those who would read the publication in question.  (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …’  (8) If follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.”

31. It is well established that the words are to be construed in their natural and ordinary meaning, i.e. the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of world affairs, would be likely to understand them.

32. The natural and ordinary meaning does not rest upon any technical process of construction or analysis.  In some circumstances, the defamation does not lie in the actual words used, but in an inferential or implied meaning that the words are capable of bearing without the need to have recourse to extrinsic facts.

33. It has been considered that the range of legitimate meanings is a matter of impression, “provided that the impression is not what the words mean but of what a jury could sensibly think they meant … Such an exercise is an exercise in generosity, not in parsimony”.

34. In defamation cases, the “single meaning rule” applies.  The words complained of were deemed to bear only one natural and ordinary meaning which was the meaning that the words would convey to the reasonable reader.  In Oriental Daily Publisher Ltd & Anor v Ming Po Holdings Ltd, Lord Neuberger NPJ observed that, in ascertaining a single meaning of the words, the first question to be considered must be: what did the statement mean?  His Lordship also said: “Conventionally, the question admits of only one answer, to be arrived at by reference to the words used when assessed in their context, documentary, factual and common sense.  This is true even where more than one meaning is possible.”

Meaning of the First Statements

53.  To find out the natural and ordinary meaning of the First Statements, it is insufficient just to look at the First Statements alone.  One should read the whole paragraph 1.6 of the 2013 AGM Minutes which contains the First Statements.  Otherwise, there would be a risk of taking the First Statements out of their context.

54.  In my view, paragraph 1.6 of the 2013 AGM Minutes should be broken into 4 parts as follows when one is reading because the 4 parts have different theme messages:-

“由於有業主多年來一直拖欠法團的管理費及大維修工程分攤費, 法團為各業主利益及公平起見, 因此, 向該些業主採取法律, 以追討欠款,  (“Part 1”)

此外, 本廈B座1/F 8室業主霸佔大廈公眾平台並加建房屋, 法團曾多次以口頭及書信要求該業主將僭建屋拆走, 但該業主不但沒有理會, 更向法團提出反申索, 法團已入稟「土地審裁處」, 有關的訴訟仍在進行中, (“Part 2”)

而現時法團仍有多宗訴訟正在進行中, 包括:

DCMP 1381/2011 (梁美春案)

LDBM 134/2011 (李健秀案)

LDBM 3333/2011 (徐偉業案)

2465案在高等法院進行中(地下停車場薛秀明)  (“Part 3”)

主席強調, 由於有一小撮業主經常企圖擾亂本廈的正常運作, 令法團多年來面對多宗不必要的訴訟, 引致法團的支出增加不少。(“Part 4”)”

55.  Part 1 is a general statement meaning that some owners were owing management fees and renovation contributions and, as a result, the IO had to resort to legal actions for recovering the same, so as to protect other owners and ensure fairness.  This is just a statement of fact and does not refer to any particular owners including Tsui.

56.  Part 2 is a specific description about the owner of No 8, Block B, 1/F, who was allegedly occupying the public podium and erecting illegal structures.  Despite verbal and written warnings, the said owner refused to remove the illegal structures.  The IO had already started a legal action against him in the Lands Tribunal but the owner was counterclaiming. The case was still ongoing.

57.  Even though it was not spelt out explicitly in Part 2, the case referred to was LDBM 134/2011 and the owner was 李健秀. Part 2 does not refer to Tsui at all and has nothing to do with him.

58.  Part 3 is a general statement spelling out 4 sets of litigation in which the IO was involved and which were ongoing, namely DCMP 1381/2011 (梁美春as defendant), LDBM 134/2011 (李健秀as defendant), DCCJ 3333/2011 (Tsui as defendant) and DCMP 2465/2011 (薛秀明 as defendant).  In Part 3, the case involving Tsui should be DCCJ 3333/2011 but it was mistakenly stated to be LDBM 3333/2011.  But such a mistake would not cause any confusion because Tsui’s full name in Chinese was spelt out after the incorrect prefix and the case number.  Any reasonable reader reading Part 3 would understand that Tsui was one of the 4 persons involving in litigation against the IO.

59.  At the time of the First Statements were published at the 2013 AGM on 24 September 2013, the aforesaid 4 cases were still going on.  I find Part 3 as a general statement reporting the progress of 4 litigations by Lam who was the Chairman of the MC of the IO.

60.  Part 4 is a set of critical words used by Lam. Lam as Chairman of the MC of the IO emphasized that there were a small group of owners, who were frequently attempting to disturb the normal operations of Tung Lo Court, causing the IO to face many unnecessary litigations and causing great increases of the IO’s expenses.

61.  While Part 4 might be regarded as strong and critical words, one should note that they do not refer to anyone specifically and there is no mention of Tsui.  A reasonable reader reading Part 4 might wonder whether Lam’s criticism was directed to the owners owing management fees and renovation contributions referred to in Part 1 or the single owner in Part 2 or the 4 owners referred to in Part 3 or some other owners not described in Part 1, Part 2 or Part 3.  Even if a reader assumes that Lam’s criticism was directed at the 4 owners at Part 3, he would still be wondering whether Lam was criticising all the 4 owners or just some of them or which one(s) of them.

The plaintiff’s pleaded meanings of the First Statements

62.  Tsui pleads that the First Statements in their natural and ordinary meaning contain 2 imputations that are defamatory:-

Imputation 1

(i) Tsui is such a faithless and discredited person;

(ii)  Continuously in default of management fees and contribution of repair fees;

(iii) the IO takes legal action (e.g. LDBM 3333/2011) to claim Tsui for arrears.

Imputation 2

(i) Tsui is such a bad guy with vicious motive;

(ii) frequently brings litigations against the IO;

(iii) disturbs the normal operation of the building;

(iv) causes increase of the IO’s expenses.

63.  I do not accept the First Statements in their natural and ordinary meanings contain Imputation 1:-

(a) There is not anything in the First Statements which refer Tsui as a “faithless and discredited person.”

(b) Part 1 states that some owners were owing management fees and renovation contributions but it does not refer to Tsui or any specific owner.

(c) Part 3 refers specifically to 4 litigations and Tsui was named in one.  There is no mention that the legal cases were started by the IO or the owners and there is no mention about the nature of the cases. One could not derive a meaning that the IO was claiming arrears from Tsui

64.  Likewise, I do not accept the First Statements in their natural and ordinary meaning contain Imputation 2:-

(a) There is nothing in the First Statements describing Tsui as “a bad guy with vicious motive.”

(b) Part 4 describes that there were a small group of owners causing the IO to face many unnecessary litigations but there is no specific reference as to who those owners were.  There is no mention of Tsui’s name.

(c) Part 4 describes that there were a small group of owners having the intention to disturb the normal operations of Tung Lo Court but there is no specific reference as to who those owners were.  There no mention of Tsui’s name.

(d) Part 4 describes that the unnecessary litigations faced by the IO caused great increases in the IO’s expenses.  There is no mention as to who actually caused the increases in the IO’s expenses and there is no mention of Tsui’s name.

The plaintiff’s fallacy in interpreting the First Statements

65.  In my view, the reason why Tsui would opine that the First Statements contain the defamatory Imputation 1 and Imputation 2 is that he has read the First Statements out of context by ignoring other parts in paragraph 1.6 of the 2013 AGM Minutes.  He just pays attention to Part 3 which mentioned DCCJ 3333/2011 and his name and then fits himself into the stronger and critical words in Part 1 and Part 4, thereby arriving at a conclusion that all the critical words were referring to him.

66.  Tsui’s approach in interpreting the First Statements is wrong.  An ordinary, reasonable and fair-minded reader would have read the whole paragraph 1.6 of the 2013 AGM Minutes carefully and would have found out that the paragraph contains 4 different parts with different theme messages.

67.  Tsui’s approach is contrary to the established legal principles outlined by Mr Justice Lok in Bawang International (Group) Holdings Ltd & Anor v Next Magazine Publishing Ltd, HCA 1109/2010:-

(a) Ignoring the words in paragraph 1.6 of the 2013 AGM Minutes in their natural and ordinary meanings.

(b) Picking and choosing parts of the publication but ignoring the rest.

(c) Selecting one bad meaning where other non-defamatory meanings are available.

(d) Adopting a strained, forced or utterly unreasonable approach when interpreting.

The defences to the First Statements

68.  As I do not accept that the First Statements when read in their proper context would be defamatory or carry the meanings of Imputation 1 and Imputation 2, strictly speaking there is no need for me to further consider the defences raised by Lam.  But in deference to counsel for both sides, I will also express my views on the defences raised by Lam ie justification, fair comment and qualified privilege.

Defence of justification in respect of the First Statements

69.  Paragraphs 11.7 and 11.8 of Gatley on Libel and Slander (12^th Edition) state the followings:-

“11.7  Substantial truth of particular imputation. For the purposes of justification, only the “substantial” truth of the imputation must be proved. The defendant can rely on the defence of justification if he proves that “the main charge, or gist, of the libel” is true. This is an objective requirement: it is the facts as they were, not the facts as they appeared to be to the defendant or some other observer that must be proved. If the gist of the libel can be proved, then there is no need also to prove peripheral facts that do not add to the sting of the charge or introduce any matter that is separately actionable: “it is sufficient if the substance of the libellous statement be justified … as much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified. Hence, when considering substantial truth it is important to “isolate the essential core of the libel and not to be distracted by inaccuracies around the edge – however substantial”.

Publishers can be permitted a degree of exaggeration even in the context of factual assertions, and – provided the sting of a libel has been established – “it is no part of the court’s function to penalise a defendant for sloppy journalism, still less for tastelessness of style.

11.8  Slight inaccuracy.  The requirement that the defendant need prove only the substantial truth of what has been published entails that a defence of truth may succeed even though the publication was inaccurate in a number of respects.  If the defendant can prove that the main charge or gist of the libel is true, a slight inaccuracy in one or more of its details will not prevent him from succeeding in a defence of truth.  In Alexander v N.E. Railway Co., for example, the defendants published a notice at their stations stating that the plaintiff had been convicted of riding in a train with no ticket and sentenced to a fine of 1 pound with the alternative of three weeks’ imprisonment in default of payment. In their plea of justification, the defendants explained that the plaintiff had indeed been convicted and fined, but that the alternative was in fact 14 days’ imprisonment.  It was held that the inaccuracy as to the length of the alternative imprisonment did not necessarily make the notice libellous, and that it was a question for the jury whether the notice was substantially true notwithstanding the inaccuracy.”

Whether the First Statements can be justified

70.  As said earlier, when reading the First Statements, the same should not be taken out of context.  One should read the whole paragraph 1.6 of the 2013 AGM Minutes at the same time which contains the First Statements.

71.  In my view, the whole paragraph 1.6 of the 2013 AGM Minutes can be justified.

72.  Part 1 is a general statement meaning that some owners were owing management fees and renovation contributions and, as a result, the IO had to resort to legal actions for recovering the same, so as to protect other owners and ensure fairness.  This part can be justified by the fact that the IO had to bring the following legal proceedings:-

(a) In LDBM 87/2011, the IO claimed against 34 owners of Tung Lo Court including Tsui for contribution of renovation fees. This case started on 1 April 2011 and judgment was handed down on 26 April 2012 by Deputy District Judge Roy Yu.

(b) In DCMP 1381/2011, the IO brought a case against car parks owner 梁美春for enforcing 18 memoranda of charge by way of an order for sale. The 18 memoranda were based on outstanding management fees, management contributions and repair contributions.  A 4-day trial was heard by Deputy District Judge R Lai from 18 to 21 February 2013 and judgment was handed down on 29 May 2013.

(c) In DCMP 2465/2011, the IO brought legal proceedings against 薛秀明for enforcement of 4 memoranda of charge by way of an order for sale.  Sit was a car park spaces owner owing management fees and repair costs. This case was started on 3 October 2011 and subsequently transferred to the Court of First Instance with a new case number HCMP 523/2013.  The IO and Sit reached settlement on 13 September 2017.

73.  Part 2 is a description about the owner of No 8, Block B, 1/F, Tung Lo Court who was allegedly occupying the public podium and erecting illegal structures.

74.  As said earlier, Part 2 has nothing to do with Tsui.  In any event, what was stated in Part 2 can be justified.  It is just a description of the background of the case of LDBM 134/2012 where the IO claimed against李健秀.

75.  Part 3 is a general statement spelling out 4 litigations in which the IO was involved and which were ongoing at the time of the 2013 AGM on 24 September 2013, namely DCMP 1381/2011 (梁美春as defendant), LDBM 134/2011 (李健秀as defendant), DCCJ 3333/2011 (Tsui as defendant) and DCMP 2465/2011 (薛秀明 as defendant).  Except that there was a typographical error where DCCJ 3333/2011 was mistakenly stated as LDBM 3333/2011, there is nothing inaccurate in Part 3.

76.  In Part 4, Lam as Chairman of the MC of the IO emphasized that there were a small group of owners, who were frequently attempting to disturb the normal operations of Tung Lo Court, causing the IO to face many unnecessary litigations and causing great increases of the IO’s expenses.

77.  Part 4 can be justified by the following facts:-

(a) Mr Justice Poon’s observation in paragraph 5 of the judgment in CACV 27/2015 which is an appeal from DCCJ 3333/2011, a defamation claim and a defamation counterclaim involving the IO and Tsui:

“The parties and some owners who sided with the defendant were embroiled in hot disputes about various matters including renovation of the Building, management of the Building and non-payment of management fees.”

(b) When one looks at the history of litigations involving the IO and considers the comment made by Mr Justice Poon, one would readily arrive at the conclusion that there is a group of owners who were dissatisfied with and unwilling to cooperate with the IO.

(c) Failures to pay management fees, contributions of renovation fees and repair contributions would undoubtedly result in interruptions to the normal operations of the IO.

(d) The interruptions would become even more serious when the IO had to start legal proceedings like LDBM 87/2011, DCMP 1381/2011 and DCMP 2465/2011 to claim against the defaulting owners.

(e) The case of LDBM 134/2012 is about the owner 李健秀failing to comply with the Deed of Mutual Covenant and the Building Management Ordinance by erecting illegal structures.  Lee’s conduct caused the IO to start legal proceedings.

(f) The case of DCCJ 3333/2011 is a defamation claim brought by the IO against Tsui and a defamation counterclaim brought by Tsui against the IO.  It was still ongoing at the time of the 2013 AGM on 24 September 2013.  By way of 4 letters issued by the IO’s solicitors dated 27 July 2012 (See: 460-461 of TB), 6 June 2013 (See: 462-463 of TB), 19 September 2013 (See: 464-465 of TB) and 11 November 2013 (See: 470-471 of TB), the IO indicated its willingness to negotiate a settlement with Tsui.  But there was not any positive or counter proposal from Tsui’s side.

(g) If the defaulting owners had complied with their obligations under the Deed of Mutual Covenants by paying management fees, contributions of renovation fees and repair contributions, the IO would not need to initiate LDBM 87/2011, DCMP 1381/2011 and DCMP 2465/2011.

(h) If the owner李健秀 had not erected illegal structures in Tung Lo Court, the IO would not need to initiate LDBM 134/2012.

(i) If Tsui had taken a more active approach in exploring the possibility of settlement with the IO, the case DCCJ 3333/2011 might not have to drag on for so long and might not have to proceed to full trial and appeal.

(j) As spelt out in the Building Management Ordinance, the primary responsibility of the IO is to manage the common areas of Tung Lo Court.  It is never intended that the primary duty of the IO be shifted to conducting litigations.  The aforesaid litigations that the IO was facing were not necessary if all the parties involved had tried to cooperate and adopt a less confrontational approach in their dealings with each other.

(k) It is common knowledge that such litigations would cost time, energy and resources of the IO so that they could not fully focus on their primary duty which is the management of Tung Lo Court.

Defence of fair comment in respect of the First Statements

78.  Paragraphs 12.1 and 12.2 of Gatley on Libel and Slander (12th Edition) state the followings:-

“12.1 The basis of the defence. It is a defence to an action of libel or slander that the words complained of are honest comment on a matter of public interest. The right to comment honestly on important matters has been considered a “bulwark of free speech; “one of the fundamental rights of free speech and writing … and … of vital importance to the rule of law on which we depend for our personal freedom. The defence of honest comment is intended to promote vigorous free speech, so that “a critic need not be mealy-mouthed in denouncing what he disagrees with … [but rather is] entitled to dip his pen in gall for the purposes of legitimate criticism. It is one of the principal means by which the common law attempts to comply with the guarantee of freedom of expression found in art. 10 of the European Convention on Human Rights. There are matters on which the public has a legitimate interest or with which it is legitimately concerned, and on such matters it is desirable that any person should be able to comment freely, and even harshly, so long as he does so honestly and without “malice”.

12.2     The elements of the defence.  In Spiller v Joseph, the Supreme Court offered a review of the historical development of the defence of honest comment before restating the five elements that must be proven by a defendant who wishes to rely upon it.  Paraphrasing, these five elements are:

(1) the comment must be on a matter of public interest.

(2) the comment must be recognisable as comment, as distinct from an imputation of fact;

(3) the comment must be based on facts which are true or protected by privilege;

(4) the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based, and

(5) the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.”

79.  In my view, Part 1, Part 2 and Part 3 of paragraph 1.6 of the 2013 AGM Minutes are all factual information which could be verified.  If there is anything which can be regarded as a comment in paragraph 1.6, it is to be found in Part 4.

80.  In Part 4, Lam as Chairman of the MC of the IO emphasized that there were a small group of owners, who were frequently attempting to disturb the normal operations of Tung Lo Court, causing the IO to face many unnecessary litigations and causing great increases of the IO’s expenses.

81.  The commenting part is this:-

“有一小撮業主經常企圖擾亂本廈的正常運作令法團多年來面對多宗不必要的訴訟, 引致法團的支出增加不少。”

(there are a small group of owners who are frequently attempting to disturb the normal operations of this Building, caused the IO to face many unnecessary litigations).

82.  In Mr Milton Pena v Temside Hospital NHS Foundation Trust & Anor [2011] EWHC 3027, Mr Justice Eady considered the nature of a comment in paragraph 27 of the judgment:-

“Attribution of motive can often, depending on context, be properly classified as comment. It is true, of course, that the state of a man’s mind can also, on occasion, be regarded as being as much of a fact as the state of his stomach. On the other hand, we can rarely establish definitively what is going on in the mind of another person and are thus dependent on inference. Where it is clear to a listener or reader that someone is drawing an inference as to another person’s motivation, it is reasonable to classify whatever he has to say in that context as comment rather than fact: see e.g. the discussion in the Court of Appeal in Branson v Bower [2001] EMLR 800, 805. The position is conveniently summarised in Duncan & Neill on Defamation (3^rd edn) at 13.16:

“Allegations about a claimant which, by their very nature cannot be verified by another person but only established by inference (for example, statements about a claimant’s state of mind or motives) are likely to be classed as comment. In Branson v Bower it was held that it would have been clear to any reasonable reader that the author could not have had direct knowledge of the claimant’s state of mind and, accordingly, that he must have been expressing his own views.” ”

83.  The aforesaid comment in Part 4 was made on the occasion of the 2013 AGM on 24 September 2013 when Lam as Chairman of the MC of the IO was reporting on various matters relating to the management of Tung Lo Court.  Lam was obviously discharging his duty as Chairman and reporting a matter of public interest to the attending owners and residents.

84.  In London Artists v Littler [1969] 2 QB 375, Lord Denning MR said this at 391:-

“[W]henever a matter is such as to affect people at large, so that they may be legitimately interested in or concerned at what is going on or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

85.  In my view, the comment by Lam was based and supported by the following facts which are true:-

(a) On 6 November 2020, Tsui started LDBM 293/2010 seeking an order to convene an owners’ meeting to remove the Chairman, the Secretary, the Treasurer and existing members of the MC.

(b) On 1 April 2011, Tsui applied to the Lands Tribunal seeking a declaration of voiding the single proxy used by Lam.

(c) On 16 December 2010, Tsui started LDBM 332/2020 seeking an order against the IO for production of meeting minutes.

(d) On 11 January 2011, Tsui started LDBM 10/2011 seeking a discharge of the memorandum of charge registered by the IO.

(e) 34 owners including Tsui failed to make contributions for the renovation works and this caused the IO starting LDBM 87/2011 on 1 April 2011 to claim for the same.

(f) Owner 梁美春’s failure to pay outstanding managements fees, management contributions and repair contributions necessitated the IO to start DCMP 1381/2011 to recover the same.  Tsui acted as Leung’s witness in the case and “took great interest in the management of the Basement” according to the written judgment.

(g) Owner 薛秀明’s failure to pay management fees and repair costs which necessitated the IO starting DCMP 2465/2011 to enforce 4 memoranda of charge by way of an order for sale.

(h) Owner 李健秀’s erection of illegal structures which necessitated the IO starting LDBM 134/2012 on 15 May 2012 to seek an injunction order.  Tsui assisted Lee in the case and about 100 complaints were raised against the IO.  He also purported to act as Lee’s expert witness.

(i) Tsui’s publishing of defamatory letter D3 on 28 March 2011 which necessitated the IO starting DCCJ 3333/2011 to claim against Tsui.

86.  It is not the function of this court to find out the real motives of the parties in the aforesaid litigations and apportion the blame among them.  But with such a background, any honest and reasonable person would get an impression that there is a group of owners who were dissatisfied with and unwilling to cooperate with the IO.  By not cooperating with the IO and engaging in various litigations with the IO, one could infer that this group of owners were attempting to disturb the normal operations of Tung Lo Court and the IO.  Such litigations would not be necessary if all the parties involved had tried to cooperate and adopt a less confrontational approach in their dealings with each other.  These litigations were costing the IO’s time, energy and resources.

87.  With this factual background and impression, the comment made by Lam at the 2013 AGM would be a fair comment.  This is just a comment which could have been made by an honest and reasonable person.

88.  By pointing out the “legal action” in Part 1 and “unnecessary litigations” in Part 4 and naming some of the litigations involving the IO, I accept that Lam had already indicated the range of facts on which he commented.  The relevant principle on this aspect is stated in Joseph v Spiller [2011] 1 AC 852 at paragraph 104:

“Such considerations are, I believe, what Mr Caldecott had in mind when submitting that a defendant’s comments must have identified the subject matter of his criticism if he is able to advance a defence of fair comment. If so, it is a submission that I would endorse. I do not consider that Lord Nicholls was correct to require that the comment must identify the matters on which it is based with sufficient particularity to enable the reader to judge for himself whether it was well founded. The comment must, however, identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views he did. A fair balance must be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making the criticism.”

Malice in publishing the First Statements?

89.  I find that Lam has a defence of fair comment in respect of the First Statements.  But if Tsui can establish malice on the part of Lam, this will defeat Lam’s defence of fair comment.

90.  Paragraph 12.36 of Gatley on Libel and Slander (12th Edition) states the following on malice:-

“Words not the defendant’s opinion.  The defence of honest comment is defeated by “malice”.  The burden of proof of malice is upon the claimant.  The conception of malice in this context, however, is not the same as that in qualified privilege.  The particular conception of malice relevant to the defence of honest comment was explained by Lord Nicholls in Tse Wai Chun v Cheng:

“A comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred.”

In principle, malice may be evidenced in a number of ways.  For instance, a publisher’s deliberate failure to mention known exculpatory facts may suggest that the defendant did not genuinely hold a stated opinion, as may publication notwithstanding knowledge of compelling evidence contrary to the comment, or the fact that there was no factual basis for the comment.  This is not to suggest that such evidence will be easy to come by in many cases.”

91.  In paragraph 8(f) and (g) of the Amended Reply, it is pleaded that Lam could not rely on the defence of fair comment because of malice and his comments were based on facts that were irrelevant or non-existent.

92.  I do not agree with Tsui.  The comment by Lam was based on the true facts as outlined in paragraph 85 hereinabove.  Those facts could hardly be disputed.

93.  There is nothing to show that Lam did not genuinely hold the view he expressed.  I find that Tsui has failed to prove any malice on the part of Lam which would defeat the defence of fair comment.

Defence of qualified privilege in respect of the First Statements

94.  In Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328, Mr Justice Lok explained the defence of qualified privilege in the context of a dispute between an owner in a building and the chairperson of the management committee of the incorporated owners:-

“68. At common law, privileged occasions can be classified into 2 categories: firstly, where the maker of the statement has a duty, whether social or moral, to make the statement and the recipient has a corresponding interest to receive it; or secondly, where the maker is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient.

69. The authorities show that there is a common interest among the owners of a building with regard to matters relating to the affairs of the building.”

95.  Lam’s basis for relying on the defence of qualified privilege has been pleaded in paragraph 15(a) of the Amended Defence:-

“ The Defendant was the Chairman of the 30^th Management Committee, and as such he had a duty to give a report at the 2013 AGM and inform the owners, tenants and residents of Tung Lo Court regarding matters concerning the IO and the management of Tung Lo Court, including:-

(i) The progress, details and reasons for the litigations involving the IO;

(ii) Matters which affect or may affect the normal operations of the IO and the building; and

(iii)  The reasons for any increase in the expenses of the IO.”

96.  I accept that the defence of qualified privilege is available to Lam.  Lam, as Chairman of the 30^th MC of the IO, had the moral and social duty to make a comment relating to the aforesaid matters and the owners and residents had a corresponding interest in receiving Lam’s comment at the 2013 AGM.

97.  But even if the defence of qualified privilege is available to Lam, such a defence can be defeated if Tsui can prove malice on the part of Lam.

98.  Paragraphs 17.2, 17.3 and 17.7 of Gatley on Libel and Slander (12th Edition) state the followings about the concept of malice in the context of the defence of qualified privilege:-

“17.2   “Presumed” and “expressed malice.  Proof of malice defeats the defence of qualified privilege, though the concept has no relevance to the “media” privilege created by Reynolds v Times Newspapers Ltd, where the emphasis is on reasonable or responsible conduct.  This section is concerned with the conventional, pre-Reynolds categories of qualified privilege.  The traditional approach was put very clearly by Bankes J. in Smith v Streatfeild.

“The principle upon which the law of qualified privilege rests is this: that where words are published which are both false and defamatory the law presumes malice on the part of the person who publishes them. The publication may, however, take place under circumstances which create a qualified privilege. If so, the presumption of malice is rebutted by the privilege, and … the plaintiff has to prove express malice on the part of the person responsible for the publication. The effect of proving express malice is sometimes spoken of as defeating the privilege … Although the occasion remains a privileged occasion, the privilege afforded by the occasion ceases to be an effective weapon of defence … Qualified privilege is a defence only to the extent that it throws on the plaintiff the burden of proving express malice. Directly the plaintiff succeeds in doing this the defence vanishes, and it becomes immaterial that the publication was on a privileged occasion.”

However, the “presumption of malice” is no longer reflected in pleading and it is submitted that we might with advantage now drop the concept of presumed malice arising from a defamatory publication and simply say that the defendant is liable for the publication of defamatory matter without just cause or excuse.  One just cause or excuse is that the words were published on a privileged occasion. This, however, is not an absolute defence and the function of malice is to allow the claimant to defeat by proving that.

Malice is a question for the jury, if there is one, provided there is evidence of it to be left to them.

17.3   The law reviewed in Horrocks v Lowe.  The speech of Lord Diplock in Horrocks v Lowe, with which three other of the Law Lords agreed, restated the law in the context of qualified privilege in what were clearly intended to be authoritative terms.  The following is offered as a summary:

(1)  Improper motives.

(a) There is some special reason of public policy for giving immunity in all cases of qualified privilege.  If the maker of a statement uses the occasion for some other reason he loses the protection of the privilege.

(b) The defendant is entitled to be protected unless some dominant improper motive on this part is proved.

(c) (i) The usual motive relied on is that of injuring the claimant, but there may be others.

(ii) Knowledge that a statement will injure the claimant does not destroy the privilege if the defendant was using the occasion for its proper purpose.

(2)  Absence of honest belief

(a)  If it can be proved that the defendant did not believe that what he published was true, that is generally conclusive evidence of express malice, “for no sense of duty or desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehoods about another.”  The burden of proof, at least where conduct extraneous to the privileged occasion is not relied on, is not a light one.

(b)  If the defendant publishes untrue matter recklessly, without considering or caring whether it be true or not, he is treated as if he knew it to be false, but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to truth.

(c)  There are exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue:  he is not then malicious.

(3)  Positive belief

(a)  Positive belief in the truth of what is published will usually protect the defendant unless he can be proved to have misused the occasion.  Judges and juries should be slow to draw the inference that he has misused the occasion, and the defendant’s desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found.

(b)  Where the defendant believes in the truth of what he has published and conduct extraneous to the privileged occasion is not relied on, the claimant can only succeed if he shows that the publication contains irrelevant matter, and that it can be inferred that the defendant did not believe it to be true or realised that it was irrelevant, and brought it in for some improper motive.  Judges and juries should be slow to draw this inference, too.

17.7   Mixed motives.  People commonly act from a mixture of motives and it will be impossible to attribute any precise degree of causative effect to one or another.  However, for this purpose the improper purpose must be the dominant motive and it is only where the defendant’s desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that malice can properly be found.

“[T]o destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.”

“Qualified privilege would be illusory, and the public interest it is meant to serve defeated, if the protection it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it.” ”

The plaintiff’s arguments on “malice” in respect of the First Statements

99.  Tsui relies on the matters pleaded in paragraph 10 of the Amended Reply to establish malice on the part of Lam when publishing the First Statements.  Tsui says Lam regarded him as an opposition party because:-

(a) Tsui gave his proxy to Lam’s opposition candidate during the election of members of the MC in September 2009 when Lam was one of the candidates;

(b) when not less than 5% of the owners requested Lam to convene a general meeting to replace the members of the MC on 22 October 2010, Tsui acted as the contact person for the requesting owners;

(c) on 6 November 2010, Tsui applied to the Lands Tribunal to compel Lam to convene a general meeting;

(d) on 16 December 2010, Tsui applied to the Lands Tribunal to compel Lam’s brother, who was the Secretary, to supply copies of the minutes of the MC meetings; and

(e) on 1 April 2011, Tsui applied to the Lands Tribunal for voiding a single proxy which allegedly represented a total of 240 shares of the Building and voted for Lam in the general meeting.

100.  The aforesaid incidents mentioned in paragraph 99 (a)-(e) above might give a reason for Lam to dislike Tsui.  But according to decided legal principles, this is not sufficient to infer malice on the part of Lam. In any event, the whole paragraph 1.6 of the 2013 AGM Minutes makes no reference to the aforesaid incidents.  There is insufficient evidence to conclude that Lam was using the occasion of the 2013 AGM to take revenge against Tsui.  Tsui’s allegation that Lam was treating him as an opposition party is solely based on his own speculation.

101.  In paragraph 11 of the Amended Reply, Tsui relies on statements published against him previously to infer that there was malice on the part of Lam.  These statements were referred to as Serial 1 False Statements and Serial 2 False Statements in paragraphs 13 and 15 of the Statement of Claim:-

Serial 1 False Statements:

(a) 25 October 2010

“被法團釘契業主A座4/F 14室伍榮康派發署名被釘契業主B座12/F 4室徐偉業的信件, 而這兩名人士已全無誠信, 欠法團管理費及維修費拾多年未還”

(English translation: “Ng Wing Hong, the owner of No. 14, 4/F Block A against which a charge was registered by the IO, distributed letters signed by Tsui Wai Yip, the owner of No. 4 12/F Block B against which a charge was registered by the IO.  These two persons are wholly faithless and still owed the IO management fees and repair fees for more than ten years and remained unsettled”)

(See: 224 of TB)

(b) 8 March 2011

“徐偉業同鐘振雄上年10月份至今年3月份都冇交管理費”

(English translation:  “Tsui Wai Yip and Chung Chun Hung were in default of management fees from September last year to March this year”)

(See: 233 of TB)

(c) 14 March 2011

“徐偉業既信件, 又話法團打輸官司要開大會, 又話人地唔跟佢既議程開會, 大家又知唔知點解佢要咁做呀! 講真, 大家業主用雪亮眼睛睇佈告板上呢幾條友都係冇交費又欠管理費…呢個徐同伍仔仲係早前比法團釘契, 明眼人都睇得出, 佢哋想利用入主法團將欠錢除去咁就以後都唔使交以前的欠款及以後的費用…比佢吔搞掂咗, 東廬業主就慘啦, 佢哋果陳又唔使交管理費又唔使交維修費, 仲可以係大家身上攞着數, 到時唔夠$加管理費, 損失既就係廣大業主, 輸家就係你哋”

(English translation: “Tsui Wai Yip’s letter stated that the IO has to convene a meeting due to IO’s losing a case in litigation.  (He) also stated that the IO did not follow his agenda to convene a meeting.  Do you know why he did it this way! Telling the truth, we, the owners with crystal-clear-eyes have to look at the notice boards, these several guys had not made any payment and were in default of management fees … That Tsui and little Ng in the early time had been registered a charge by the IO.  People with discernible eyes can recognize that they wanted to write off their arrears by entering and dominating the IO and then did not need to pay any of those arrears and future payments afterward ... If (we) let them succeed, the owners of Tung Lo court, will suffer a lot.  At that time, they need not pay any management fees and any repair fees and even can take the benefits from the owners.  When money is insufficient, management fees will be increased.  Loss must be incurred to the owners, you are the (real) loser”)

(See: 235 of TB)

(d) 23 March 2011

“法團請大家往壁報板一看, 徐偉業欠管理費六個月及維修費 48,793 外, 還在早前欠下法團兩次消防花洒及地庫花洒工程6年沒有交款而被釘契”

(English translation: “The IO invites all owners to take a look at the notice boards. Apart from owing 6 months’ management fees and $48,793 of repair fees, Tsui Wai Yip had owed the IO two additional fee of installation of fire sprinklers and basement-sprinklers works for 6 years and a charge was registered against his flat”)

(See: 237 of TB)

(e) 25 March 2011

“徐偉業先生: 閣下因欠管理費而再被本法團註契 … 欠管理費月份2010年10月11月12月, 2011年1月2月3月”

(English translation: “Mr. Tsui Wai Yip:  You are registered a charge by the IO for owing management fees again … months for owing arrears of management fees are: September, November, December of 2010 and January, February, March of 2011”

(See: 245 of TB)

(f) 11 April 2011

“徐偉業要與管委會對話, 應先繳清多年來積欠的維修費、管理費, 自己做好責任先 … 不是讓有機心的人及欠管理費、維修費人士將大廈搞亂日常運作, 令東盧全體業主損失”

(English translation: “Tsui Wai Yip should, discharge your own responsibility by clearing all accumulated arrears repair fees and management fees which had been remained outstanding for years before talking with the Management Committee … Don’t let the person with wild ambitions and owing management fees and repair fees messing up with the daily operations of the Building and cause losses to all the owners of Tung Lo Court”)

(See:  253 of TB)

(g) 13 April 2011

“你徐偉業欠下法團兩項維修費長達六年, 法團才向你的物業釘契, 經已仁至義盡 … 法團絕不會跟長期欠費及搞亂大廈的人對話, 自己想想吧! 徐偉業”

(English translation: “Tsui Wai Yip, only when you owed the IO two items of repair fees for six years long, the IO registered a charge against your property.  Such action is indeed extremely kind to you … The IO absolutely would not respond to the person who owed long term arrears and messed up the Building.  You yourself think it over!  Tsui Wai Yip”)

(See:  255 of TB)

(h) 19 August 2011

“徐偉業的多年前的維修費及是次大維修的費用都欠交”

(English translation: “Tsui Wai Yip still owed arrears of repair fees of that years ago and the current one”)

(See:  259 of TB)

Serial 2 False Statements:

a. 6 April 2011

“徐偉業經常以訴訟方式與立䅁法團對話, 大大令法團損失金錢, 由第29屆管理委員接任至今, 徐偉業已入稟的案件達到六宗, 而訴訟日亦有9天之多, 涉及的訴訟費達拾多廿拾萬元, 長久下去, 法團經已再無法支付訴訟費, 唯有向全體東廬業主增加管理費”

(English translation: “Tsui Wai Yip always uses lawsuits as a means to talk to the IO, caused huge monetary losses of the IO.  From the 29^th Management Committee took over till now, Tsui Wai Yip had already filed 6 lawsuits. Hearing days fixed could last as many as 9 days and the cost involved reached more than two hundred thousand dollars.  If it goes on in this way, the IO cannot pay the costs but increase management fees to be paid by all the owners of Tung Lo Court”)

(See:  251 of TB)

b. 11 April 2011

“每次訴訟由於法團成員均是義工沒理由要負上任何法律責任, 所以必須聘請律師答辯, 每次出庭的律師費都是由大廈管理費用支付, 這些費用全是由徐偉業一手做成 … 日後管理委員會可能花費更大或有可能大幅增加管理費以應付不斷的訴訟, 全是由徐偉業造成”

(English translation: “For each lawsuit, there is no reason for the members of the IO who are merely volunteers to bear legal responsibility.  So, it is necessary to retain a lawyer to defend and the fees of each hearing were paid by the Building’s management fees.  Such fees were wholly caused by Tsui Wai Yip … the Management Committee may spend even much more or increase management fees substantially someday in the future in order to cope incessant lawsuits.  All these things were caused by Tsui Wai Yip”)

(See:  253 of TB)

c. 13 April 2011

“你徐偉業再告法團便再花費更大, 你徐偉業就再浪費更多公帑, 加管理費日子更接近了”

(English translation: “You, Tsui Wai Yip, sued the IO again, caused the IO to spend much more expenses.  You, Tsui Wai Yip, wasted much more public fund, the date for increase in management fees comes much closer”)

(See:  255 of TB)

d. 26 April 2011

“在這案件上全是你徐偉業一手造出來的令法團花費訴訟”

(English translation: “For this case, you, Tsui Wai Yip, because of you alone, caused the IO to spend a lot in the litigation”)

(See:  257 of TB)

102.  The aforesaid Serial 1 Statements and Serial 2 Statements relied on by Tsui were all contained in the publications P1, P3-11 which formed the subject matters of Tsui’s counterclaim against the IO in the defamation case DCCJ 3333/2011.

103.  Deputy District Judge Mak already ruled in DCCJ 3333/2011 that P1, P3-11 were defamatory of Tsui but the IO succeeded in the defence of qualified privilege in relation to P5, P6, P7, P9, P10 and P11.  In respect of P1, P2, P3, P4 and P8, the learned Deputy District Judge ordered the IO to pay damages in the sum of HK$450,000 to Tsui.

104.  In my view, P1, P3-P11 had already been judicially considered and determined in DCCJ 3333/2011, which is a defamation claim and counterclaim involving the IO and Tsui.  I find it strange that Tsui would need to raise them again in the present proceedings.

105.  What is important is that there was no evidence that P1, P3-P11 were published by Lam in his personal capacity.  In fact, Tsui’s counterclaim in DCCJ 3333/2011 was directed at the IO.  As such, I do not see how Tsui could rely on P1, P3-P11 to infer malice on the part of Lam in respect of the First Statements. 

106.  One should also note that P1, P3-P11 in DCCJ 3333/2011 and the First Statements in the present case were markedly different in terms of wordings used and were published in wholly different contexts.  Any reasonable person could not find the connection and infer malice on the part of Lam based on P1, P3-P11.

107.  In paragraph 12 of the Amended Reply, Tsui pleaded that while he was challenging Lam’s ballot representing 240 shares in the Lands Tribunal, Lam signed and used the name of the IO to commence the defamation claim in DCCJ 3333/2011 thereby causing oppression to him.

108.  The Court of Appeal in CACV 27/2015 upheld Deputy District Judge Mak’s finding that letter D3 published by Tsui was defamatory of the IO.  As such, the IO was justified in initiating the claim in the first place.  While Lam as chairman of the IO signed and verified the Statement of Claim on behalf of the IO, one could not infer malice purely from this act.  Initiating the defamation claim in DCCJ 3333/2011 should be a collective decision of the MC of the IO.  Just because Lam as Chairman was involved in the decision making process could not mean that there was malice on his part.

109.  In paragraph 13 of the Amended Reply, Tsui pleaded that Lam deliberately mentioned a few more names of the owners in the First Statements in order to find excuses to justify the defamatory Imputation 1 and Imputation 2.

110.  I do not accept Tsui’s complaint in this regard. By mentioning 4 cases in Part 3 of the First Statements, Lam was just reporting to the attending owners and residents about the ongoing cases in which the IO was involved and which individual owners were parties to those cases.  I do not see how malice can be inferred from this act.

111.  In paragraph 14 of the Amended Reply, Tsui alleged that malice could be inferred on the part of Lam because when he described the case involving Tsui in Part 3 of the First Statements, he named the case as LBDM 3333/2011 instead of its correct form DCCJ 3333/2011. In doing so, Lam wanted to give a false impression that the IO was claiming against Tsui for arrears of management fees or contributions.

112.  I accept Lam’s explanation that naming the case as LDBM 3333/2011 instead of DCCJ 3333/2011 was only a typographical error on his part.  While I accept that a person in the legal field might understand the prefix “LDBM” as representing a building management matter in the Lands Tribunal and the prefix “DCCJ” as representing a civil claim in the District Court, I do not believe the owners and residents receiving the First Statements from Lam would know the difference.  One would be going too far to infer malice on the part Lam just because he as a layman made a mistake in the prefix of a case number.   In any event, there was no mention in Part 3 of the First Statements that the case was initiated by the IO or by Tsui.

113.  Overall speaking, I do not accept that Tsui has established malice on the part of Lam so as to defeat his defence of qualified privilege.  There is insufficient evidence to establish the dominant motive of Lam was to injure Tsui or Lam did not believe that the First Statements were true.

Meaning of the Second Statements

114.  In my view, the Second Statements should be broken into 3 parts as follows when one is reading:-

“關於區域法院案件編號 3333/2011徐偉業案, 本法團在案件開始時, 本法團不想在財政上遭受不必要的損失, 已與徐偉業道歉及講和, 但徐偉業不接受, (Part A)

並誣蔑法團各委員, 更茅頭直指法團主席及秘書, (Part B)

目的是想搞亂本大樓之正常運作, 而直接影響的必定是本樓各業主之利益, (Part C)”

115.  Part A is a specific description of the IO’s intention to avoid unnecessary financial loss arising from DCCJ 3333/2011 and so tried to offer an apology to Tsui and settle with him but Tsui did not accept.

116.  Part B is about Tsui’s maligning members of the MC and targeted at the Chairman and the Secretary specifically.

117.  Part C is stating that Tsui’s aim was to mess up the normal operations of the building and this would directly affect all the owners’ interests.

The plaintiff’s pleaded meanings of the Second Statements

118.  Tsui pleads that the Second Statements in their natural and ordinary meaning contain imputations that are defamatory:-

Imputation 3

(i) Tsui is of mean character;

(ii) unreasonably refused to accept apology and reconciliation offered by the IO at the beginning stage of DCCJ 3333/2011;

(iii) made the IO suffer unnecessary financial loss.

Imputation 4

(i) Tsui acted with malice;

(ii) maligned all members of the IO;

(iii) especially targeted at the Chairman and Secretary of the IO.

Imputation 5

(i) Tsui harboured evil intention;

(ii) aimed at messing up the normal operations of Tung Lo Court;

(iii) adversely affecting the interests of all the owners of Tung Lo Court.

119.  I do not accept the Second Statements in their natural and ordinary meaning contain Imputation 3.  Part A just factually states that the IO offered to settle with Tsui and he refused.  One could not the get the meaning that Tsui is of “mean character” and “was acting unreasonably”.  Part A states that the IO did not want to incur unnecessary financial loss but there is nothing suggesting that Tsui was the one making the IO “suffer unnecessary financial loss”.

120.  As to Imputation 4, I accept that Part B carries the meaning of (ii) maligned all members of the MC and (iii) especially targeted at the Chairman and Secretary of the IO.  However, there is nothing suggesting that Tsui was acting with malice.

121.  In relation of Imputation 5, I accept that Part C carries the meaning of (ii) aimed at messing up the normal operations of Tung Lo Court and (iii) adversely affecting the interests of all the owners of Tung Lo Court.  But I do not accept that Part C has any hidden meaning that Tsui was harbouring evil intention.

122.  In summary, I accept that Part B and Part C of the Second Statements carry the following imputations:-

Imputation 4

ii maligned all the members of the IO;

iii especially targeted at the Chairman and Secretary of the IO.

Imputation 5

ii aimed at messing up the normal operations of Tung Lo Court;

iii adversely affecting the interests of all the owners of Tung Lo Court.

123.  The aforesaid imputations I have accepted are defamatory of Tsui because they would lower Tsui’s estimation in the eyes of right-thinking members of society and adversely affect his reputation.

124.  I do not accept the Second Statements carry other imputations alleged by Tsui because those imputations would involve strained, or forced or utterly unreasonable interpretation of the words in the Second Statements.

Whether the Second Statements can be justified?

125.  I have already decided that Part A of the Second Statements is not defamatory and does not carry the imputations alleged by Tsui.  But I will also consider whether the defence of justification is applicable.

126.  In my view, Part A can be justified by the following facts:-

(a) DCCJ 3333/2011 was initiated by the IO on 29 August 2011.

(b) By way of 4 letters issued by the IO’s solicitors dated 27 July 2012 (See: 460-461 of TB), 6 June 2013 (See: 462-463 of TB), 19 September 2013 (See: 464-465 of TB) and 11 November 2013 (See: 470-471 of TB), the IO indicated its willingness to negotiate a settlement with Tsui.

(c) On 11 November 2013, the IO also made a payment into court in the sum of HK$20,000.

(d) Tsui’s solicitors sent a reply letter dated 25 November 2013 rejecting the IO’s offer but made no concrete counter proposal. (See: 478 of TB)

(e) On 15 January 2014, the IO’s solicitors wrote to Tsui’s solicitors offering an apology as a term of settlement but there was no positive response or counter proposal from Tsui or his solicitors.  (See: 698 of TB)

127.  Part B contains the defamatory imputations that Tsui maligned all the members of the MC and especially targeted at the Chairman and Secretary of the IO.  I am of the view that Part B can be justified by the following facts:-

(a) In DCCJ 3333/2011, the IO’s defamation claim was based on 4 letters D1 – D4 published by Tsui respectively dated 11 March 2011 (See: 528 of TB), 24 March 2011 (See: 529 of TB), 28 March 2011 (See: 530 of TB) and 27 April 2011 (See: 549 of TB).

(b) Deputy District Judge Mak found D1 – D4 to be defamatory of the IO.  They were not supported by facts, exceeded the scope of reply and not covered by the defence of qualified privilege (See: paragraphs 91, 94, 103, 107, 111 and 115 of the judgment).

(c) On appeal, the Court of Appeal found that D1, D2 and D4 were not directed against the plaintiff IO but were directed against the MC, the Chairman, the Secretary and the head of security.

(d) Mr Justice Poon, who was giving the judgment of the Court of Appeal, said this at paragraph 50:

“Having considered each of D1, D2 and D4 in the overall circumstances, we do not think they referred to the plaintiff. Although they were made in response to the defamatory statements published by the plaintiff, the defendant chose not to direct them against the plaintiff as IO. Instead, he directed them against the management committee, the Chairman, the Secretary and the head of security, as the case may be, that is, those who were in the eyes of the defendant responsible for the plaintiff’s wrongdoings.”

Defence of fair comment in respect of the Second Statements

128.  Part C of the Second Statements contains the defamatory implications that Tsui aimed at messing up the normal operations of Tung Lo Court and adversely affecting the interests of all the owners of Tung Lo Court.

129.  In my view, Part C should be classified as comment instead of fact according the principle in Mr Milton Pena v Temside Hospital NHS Foundation Trust & Anor which was referred to in paragraph 82 hereinabove.  As such, I will consider Part C in the context of the defence of fair comment.

130.  The aforesaid comment in Part C was made on the occasion of the 2015 AGM on 19 December 2015 when Lam as Chairman of the MC of the IO was reporting on various matters relating to the management of Tung Lo Court.  Lam was obviously discharging his duty as Chairman and reporting a matter of public interest to the attending owners and residents.

131.  In my view, the comment in Part C was based and supported by the facts referred to in paragraphs 126 and 127 hereinabove.

132.  Despite the IO’s several attempts to explore settlement possibility with Tsui in DCCJ 3333/2011, there was no positive or constructive counter proposal from Lam.  The findings by Deputy District Judge Mak and the Court of Appeal confirm the fact that Lam was targeting the IO, Lam as Chairman, the Secretary and the head of security.  One should also note that Tsui actively initiated or participated in the litigations against the IO like LDBM 293/2010, LDBM 332/2010, LDBM 10/2011, LDBM 87/2011, DCMP 1381/2011 and LDBM 134/2012.

133.  In paragraph 302 of the judgment in DCCJ 3333/2011, Deputy District Judge Mak made the following observation:

“從案件中的證據可見, 被告人在繳費問題上採取不合作態度, 為原告人在核實被告人有否繳付管理費的工作上製造困難。被告人亦拒絕支付大樓的維修費 48,793元, 更為此聯同 33 名業主在 LDBM 87/2011 中與原告人訴訟, 經過 3 天的審訊後, 被土地審裁處裁定須支付該項維修費。”

134.  An honest and reasonable person with knowledge of the above facts would readily make a comment in Part C ie that Tsui was aiming at messing up the normal operations of Tung Lo Court.  As said earlier, the primary responsibility of the IO is to manage the common areas of Tung Lo Court.  The various litigations including DCCJ 3333/2011 would undoubtedly disrupt the normal operations of the IO and Tung Lo Court and cost the IO’s time, energy and resources.  The result must be the owners of Tung Lo Court being adversely affected.

135.  I, therefore, find that Lam has a defence of fair comment in relation to Part C of the Second Statements.

Malice in publishing the Second Statements?

136.  In paragraph 25(d) and (e) of the Amended Reply, Tsui pleads that the defence of fair comment should not be available to Lam because the comment was based on irrelevant or non-existent facts and Lam was acting with malice.

137.  I have already identified the true facts on which Tsui’s comment was based ie paragraphs 126, 127, 132 and 133 hereinabove.  As to malice, there is nothing to show that Lam did not genuinely hold the view he expressed.  I find that Tsui has failed to prove any malice on the part of Lam which would defeat the defence of fair comment.

Defence of qualified privilege in respect of the Second Statements

138.  Lam’s basis for relying on the defence of qualified privilege has been pleaded in paragraph 36(a) of the Amended Defence:-

“ The Defendant was the Chairman of the 31^st Management Committee, and as such he had a duty to give a report at the 2015 AGM and inform the owners, tenants and residents of Tung Lo Court regarding matters concerning the IO and the management of Tung Lo Court, including; -

(i) The progress, details and reasons for the litigations involving the IO;

(ii) Matters which affect or may affect the normal operations of the IO and the building; and

(iii) Matters which affect or may affect the common interest of the owners.”

139.  I accept that the defence of qualified privilege is available to Lam.  Lam, as Chairman of the 31^st MC of the IO, had the moral and social duty to make a comment relating to the aforesaid matters and the owners and residents had a corresponding interest in receiving Lam’s comment at the 2015 AGM.

The plaintiff’s arguments on “malice” in respect of the Second Statements

140.  I also need to consider whether Tsui can prove malice on the part of Lam which would defeat the defence of qualified privilege.

141.  In paragraphs 99 to 113 hereinabove, I have already stated my views as to why Tsui has not successfully proved malice on the part of Lam.  Here, I will consider Tsui’s further arguments on malice pertaining to the Second Statements. 

142.  In paragraph 30 of the Amended Reply, Tsui pleads that DCCJ 3333/2011 was not instituted by the IO or the MC, but solely by Lam himself.

143.  I am puzzled by this argument.  It is crystal clear that the plaintiff in DCCJ 3333/2011 was the IO.  Similar argument by Tsui that DCCJ 3333/2011 was not instituted by the IO was advanced before Deputy District Judge Mak at trial and was rejected.  (See: paragraphs 17-22 of judgment)

144.  The minutes of the MC meetings on 6 January 2012 (See: 297-298 of TB), 12 March 2012 (See: 295-296 of TB) and 22 June 2012 (See: 299-300) show that Lam as Chairman reported the progress of DCCJ 3333/2011 to the MC from time to time.  The progress of the case was also discussed at the MC’s meeting on 21 October 2013 (See: 695-697 of TB).  It can be inferred that the institution of DCCJ 3333/2011 was an informed decision of the MC acting on behalf of the IO.

145.  Tsui’s argument that the institution of DCCJ 3333/2011 was a sole decision of Lam and malice could be inferred must fail.

146.  In paragraphs 31 and 32 of the Amended Reply, Tsui pleads that the IO lost its application to vary the costs order in CACV 27/2015.  When publishing the Second Statements, Lam was trying to put the blame for IO’s loss of costs on Tsui and malice can be inferred from Lam’s conduct.

147.  It is correct that the Court of Appeal made a costs order nisi that there should be no order as to costs for the trial in DCCJ 3333/2011 and the IO should pay the costs of the appeal to Tsui.  The IO application for variation of the costs order nisi was refused by the Court of Appeal on 25 November 2015.

148.  However, there is nothing to indicate that Lam was trying to put the blame for IO’s loss of costs on Tsui.  When one reads the whole paragraph 1.12 of the 2015 AGM Minutes which contains the Second Statements, Lam reported the Court of Appeal’s decision on costs to the attending owners and residents that the IO would be liable to pay the costs of appeal to Tsui.  Lam was reporting the costs order frankly and was not putting the blame on anyone.  There is nothing to infer malice on his part.

149.  Overall speaking, I do not accept that Tsui has established malice on the part of Lam so as to defeat his defence of qualified privilege.  There is insufficient evidence to establish the dominant motive of Lam was to injure Tsui or Lam did not believe that the Second Statements were true.

Defence under section 29A of Building Management Ordinance

150.  Lam has also raised a defence under section 29A of Building Management Ordinance:-

“(1) No member of a management committee, acting in good faith and in a reasonable manner, shall be personally liable for any act done or default made by or on behalf of the corporation –

(a) in the exercise or purported exercise of the powers conferred by this Ordinance on the corporation; or

(b) in the performance or purported performance of the duties imposed by this Ordinance on the corporation.

(2) The protection conferred by subsection (1) on a member of a management committee shall not in any way affect the liability of the corporation for that act or default.”

151.  Counsel for Tsui does not think this section will provide protection to Lam when he is being sued for defamation in his personal capacity.

152.  The only case authority submitted by counsel for Lam on Section 29A is Woo Tak Yan v Lam Sik Chuen, DCCJ 5381/2009, where Deputy District Judge Grace Chan, after ruling that the defendant succeeded in the defence of justification and qualified privilege, found that a defence under section 29A would also be available.

153.  In view of the fact that counsel for both sides did not make legal submissions on section 29A in depth and I have already found that the defences of justification, fair comment and qualified privilege are available to Lam, I do not think it is necessary for me to express my conclusive view on whether section 29A would also afford a defence to Lam.

Republication of Serial 1 False Statements and Serial 2 False Statements?

154.  In paragraph 17 of the Statement of Claim, Tsui pleads that by publishing the First Statements, Lam was in effect republishing the earlier defamatory Serial 1 False Statements and Serial 2 False Statements that were contained in the publications P1, P3-11 which formed the subject matters of Tsui’s counterclaim against the IO in DCCJ 3333/2011.

155.  As said before, P1, P3 – P11 had already been judicially considered and determined in DCCJ 3333/2011, I find it strange that Tsui would need to raise them again in the present proceedings.

156.  Paragraph 6.47 of Gatley on Libel and Slander (12^th Edition) states the following on republication:-

“At common law every republication of a libel is a new libel and, if committed by different persons, each one is liable as if the defamatory statement had originated with him. Thus, where A wrote a libellous letter to D, and D republished extracts in a pamphlet, it was held that the fact that the letter was written by A, and that D honestly believed the statements in it to be true, was no defence to an action for such republication.”

157.  I have already ruled that the First Statements do not carry any defamatory meaning.  For the sake of argument, even assuming that the First Statements are defamatory, publishing the First Statements on 24 September 2013 could not logically mean that Lam was republishing the Serial 1 False Statements and Serial 2 False Statements which dated back to October 2010 to August 2011.

158.  Comparing the First Statements in the present case with Serial 1 False Statements and Serial 2 False Statements, the wordings used are markedly different and they were published in wholly different contexts.  No reasonable reader reading the First Statements could have thought of the Serial 1 False Statements and Serial 2 False Statements published more than 2 years ago.

159.  Tsui’s argument on republication does not add anything to his case. 

Conclusion

160.  In conclusion, I find that the First Statements are not defamatory.  Even if they are, Lam would have the defences of justification, fair comment and qualified privilege. 

161.  As to the Second Statements, I find that they only carry the defamatory imputations that Tsui (a) maligned all members of the IO; (b) especially targeted at the Chairman and Secretary of the IO; (c) aimed at messing up the normal operations of Tung Lo Court and (d) adversely affecting the interests of all the owners of Tung Lo Court.  But Lam has succeeded in his defences of justification, fair comment and qualified privilege.

162.  I order that the plaintiff’s claim be dismissed.  I also make an order nisi that the costs of this action (including all costs reserved) be paid by the plaintiff to the defendant with certificate for counsel, which shall be made absolute in the absence of application to vary within 14 days.

Damages

163.  In light of my conclusion, the issue of the amount of damages to be awarded to Tsui does not arise.  But in deference to counsel for both sides, I also briefly state my view on the issue of damages.

164.  If the First Statements and the Second Statements are all defamatory and Lam does not have any defence, it is then necessary to consider the extent to which the publications were circulated.

165.  Lam admits that the First Statements and the Second Statements were read out by him at the 2013 AGM on 24 September 2013 and the 2015 AGM on 19 December 2015.

166.  On the issue of reading out, I accept defence counsel’s submission that it should be a slander, which is not actionable per se without proof of special damage, unless it falls within the 4 recognised exceptions.

167.  According to Tsui, the 2013 Minutes containing the First Statements were posted on or about 8 October 2013 (a) on the notice boards of Block A and Block B of Tung Lo Court, (b) on the walls of the lifts lobbies on the ground floor of Block A and Block B and (c) inside the 4 lifts of Block A and Block B.  The Second Statements first appeared in Lam’s Chairman report dated 17 December 2015 which was posted up at the 2015 AGM venue and distributed to the people attending the 2015 AGM on 19 December 2015.  After the 2015 AGM, the 2015 AGM Minutes were posted on or about 30 December 2015 at the same 3 spots. 

168.  Lam admits that they were posted up at venue (a) but denies they were posted up at any other spots.  On this issue, Lam called 2 witnesses Kong Yiu Man and Tse Ching Yum to testify.  They both worked at the management office of Tung Lo Court at the material times.

169.  Lam admits that the Chairman’s report for the 2015 AGM was posted up inside the meeting venue and was distributed to people attending. Lam’s witness Yeung Wai Lin testified that there were about 32 people attending the 2013 AGM and about 27 people attending the 2015 AGM.

170.  In the absence of compelling evidence like photos depicting the 2013 AGM Minutes and the 2015 AGM Minutes were also posted up at venues (b) and (c), I accept Kong Yiu Man’s and Tse Ching Yum’s testimonies that the minutes were only posted up at venue (a).

171.  In my view, evening assuming the 2013 AGM Minutes and 2015 AGM Minutes were posted up at all the 3 spots alleged by Tsui, there would not be too much difference in terms of the extent of publication.  Tung Lo Court has 352 residential units, 45 shops on the ground floor and 60 car park spaces in the basement.  Only those owners or residents of Tung Lo Court who are concerned with the daily running of the building and the running of the IO would be interested in reading the minutes.  I do not believe people unrelated to Tung Lo Court would bother to read.  One should also bear in mind that the 2013 AGM Minutes consist of 3 pages and the First Statements only occupy about 1/3 of a page.  The 2015 AGM Minutes consist of 4 pages and the Second Statements only occupy about ¼ of a page.

172.  In such circumstances, counsel for Tsui’s suggestion of an award of general damages in the sum of HK1,000,000 would be excessive.

173.  Counsel for Lam has referred me to a number of defamation cases involving members of the management committee and owners:-

(a) Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 (General damages in the sum of HK$50,000 was considered to be appropriate for a corporate owner and HK$100,000 was considered to be appropriate award for the company director)

(b) 劉燎輝訴林其東, HCA 2569/2013 (General damages ranging from HK$50,000 to HK$80,000 were awarded)

(c) Yiu Shing Yin v Kwok Yik Ho & Anor, DCCJ 4437/2016 (General damages in the sum of HK$80,000 were considered to be appropriate)

(d) 霍尚寧訴唐偉德, HCA 13214/1999 (General damages in the sum of HK$80,000 were awarded)

(e) 梁偉訴倫國祥, HCA 2657/2002 (General damages in the sum of HK$100,000 were awarded)

(f) Poon Chi Hung William v Yuen Wai Chung, HCA 387/2011 (General damages in the sum of HK$80,000 were awarded)

174.  I have also considered the cases referred by Deputy District Mak in the judgment of DCCJ 3333/2011, the award made in that case and the appeal judgment in CACV 27/2015.

175.  In the present case, if an award for general damages needs to be made, I believe an award of HK$100,000 in respect of the First Statements and HK$100,000 in respect of the Second Statements would be appropriate.

176.  Counsel for Tsui has also suggested a separate award for aggravated damages in the sum of HK$1,000,000 and a separate award for exemplary damages in the sum of HK$500,000.

177.  In Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328, Mr Justice Lok considered the Court of Final Appeal’s judgment in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 and said this on the topic of aggravated damages at paragraph 111:-

“Aggravated damages may be granted to compensate for the additional injury caused to the claimant’s feelings by the defendant’s post-publication conduct, such as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the claimant in a wounding and insulting way.”

178.  As to exemplary damages, paragraph 9.27 of Gatley on Libel and Slander (12^th Edition) states the followings:-

“9.27 The defendant’s purpose. To attract exemplary damages under the third category in Rookes v Barnard the publisher must have acted in the hope or expectation of material gain. It is not enough that he is motivated by a desire to injure or ruin the claimant, though that is equally deserving of punishment. The fact that the defendant is engaged in an activity aimed at profit (e.g. publishing a newspaper or a television show) does not of itself justify an award of exemplary damages: there must be something more specific than that; but it is not necessary that there should have been a detailed calculation.”

179.  Having considered all the evidence in this case and the way Lam has conducted his defence, I do not think that this case calls for an award of aggravated damages or an award of exemplary.

180.  Lastly, I thank counsel for both sides for their assistance.  Their points have been duly considered before I reach my conclusion.  It is unnecessary and counterproductive for me to set out each and every point taken by them.  I believe the above analysis sufficiently disposes the matter.