LAU LIU FAI v. 林其東 AND OTHERS

HCA 2569/2013

[2018] HKCFI10

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2569 OF 2013

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JUDGMENT

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1.  This is a libel trial. The plaintiff brought a libel claim against the defendants. The defendants also counterclaim against the plaintiff for libel.

2.  The plaintiff (“Lau”) is a retiree for over 10 years and a residentof Aldrich Garden Estate (“the Estate”).  The Estate established an owners’ incorporation in or about 2002.  The plaintiff served as a Committee member of the Management Committee (“the MC”) in 2003 (the 2^nd MC) and in the 9^th and 10^th MCs in 2010 and 2011 respectively.

3.  Lau originally brought his claim against 11 defendants who were all members of the 12^th MC (ie for the year of 2013).  The plaintiff subsequently settled the action with the 9^th defendant and his claim against the 9^th defendant was withdrawn.  The 1^st defendant (“Lam”) was the Chairman of the 12^th MC.  The 1^st to 8^th and the 10^th defendants are all residents of the Estate.  The 11^th defendant is a corporate person owning thecommercial section of the Estate.  I will refer to the remaining 10 defendants collectively as “the defendants”.

4.  Lau’s claim against the defendants is based on a letter dated 27 September 2013 which was published by the MC to all residents of the Estate (“the Letter”)[1].  Apart from defending the claim, the defendants also counterclaim for libel against Lau on the basis of a poster published earlier by Lau on or about 28 July 2013 (“the Poster”)[2].  It is the defendants’ case that it was the publication of the Poster by Lau that led to the publication of the Letter.

BACKGROUND

5.  At the 3^rd Meeting of the 12th MC held on 12 March 2013[3], the MC discussed on how to handle the accumulated funds of over HK$12 million. After discussions, it was resolved unanimously that the incorporated owners would waive payments of one month’s management fees from all residential units in the year of 2013.  It was also resolved that the Chairman Lam would follow up with the management company and that a notice/letter would be issued to residents to explain the reasons behind this proposal.

6.  Between 23 May 2013 and 6 June 2013, the 2013 draft financial budget of the Estate (complied on the basis of waiving one month’s management fees from all residential units) was posted up at the designated notice boards of the MC located at the lift lobby of each residential block of the Estate for the residents to inspect[4].  In a Notice dated 23 May 2013 published and posted by the management company of the Estate (“the Manager”) at designated notice boards located at the lift lobby of each residential block of the Estate[5], the Manager specifically informed residents of the suggestion of waiving one month’s management fees for residential units.  Residents were also invited to give written comments on the draft budget within 14 days.

7.  By a letter dated 26 July 2013 published by the MC to all residents of the Estate[6] , the MC expressed its views in relation to the accumulated funds of the Estate and made the following important points:

(1) the accumulated funds of the Estate had reached a substantial level (amounting approximately to 7½ months of management fees);

(2) due to the low‑interest environment, bank interest receivable from fixed deposits have been significantly reduced;

(3) due to restraints under the DMC, the accumulated funds could not be placed on risky investments;

(4) consequently, the accumulated funds would just continue to devaluate as a result of inflation; and

(5) furthermore, the accumulated funds were not kept in the name of the incorporated owners but were kept by the management company.

The MC then notified residents of the resolutions passed unanimously at the 5^th Meeting of the 12^th MC held on 16 June 2013, namely[7]:

(i) to allocate an amount equivalent to 3 months’ management fees to establish a sinking fund;

(ii) to place a reserve in the amount equivalent to 1½ months’ management fees with the management company for ordinary cashflow purpose;

(iii) to allocate an amount equivalent to 2 months’ management fees to cater for the maintenance costs in the coming year (since the Estate was only 13 years old and that it would take approximately another 10 years before a major renovation needed be considered); and

(iv) to waive payments of one month’s management fees from residents.

8.  The said letter to all residents also listed out 12 suggested items of maintenance/repair works relating to paragraph (iii) above.  It further stated that these suggestions would ultimately have to be discussed and resolved upon by the MC.  The MC further informed residents that 2 consultative meetings would be held on 1 August 2013 and 4 August 2013 at the MC conference room in Block 7.  Residents were invited to provide suggestions and consultations in relation to such maintenance/repair works.

9.  On or about 28 July 2013, Lau admittedly posted a poster (“the Poster”) on a pole at a bus stop for route 102 near one of the two main entrances of the Estate[8].  Lau further admitted that he had distributed the Poster outside exit D2 of the Shau Kei Wan MTR station by placing a pile of copies of the Poster for passers‑by to collect[9].The Poster contained the following words:

「                          不負責任的業委會

一、免收管理費：十三年樓的愛蝶灣如果善用此筆管理費裝飾外觀一定更能保值及提升升值能力他們預計十幾年後才大維修請大家想像下近三十年樓是殘樓還是危樓？

他們這麼敗家！是想用公錢收買人心或是幼稚？

二、黑箱內諮詢：很早通過之決議卻遲遲推出更要幾日內到黑箱里 (會議室) 諮詢試問室內可容納多少人？除了十位委員如果再安排十位自己友早些進入，那來成千萬之儲備就此玩完！

三、業委會做不到公平公正公開：按照通告之支出將近成千萬這麼大數目為何不在即將舉行之業主大會咨詢卻要鬼鬼鼠鼠地在黑箱內倉卒進行難道在黑箱內區區十數人可以代表三千幾業主？

究竟你哋有乜野唔見得光嘅勾當呀？

我不相信十位委員都受其蒙敝！

撕去此紙者即是同謀

第五座業主劉燎輝 」

Translation:

“                      The Irresponsible Committee

1. Waiver of management fees: If Aldrich Garden can properly use the management fees and spent it on the maintenance of exterior look of Aldrich Garden, the value [of the flats in Aldrich Garden] would certainly be preserved and enhanced. Theyestimated that huge reparation works of [Aldrich Garden] would only need to be done after ten odd years: can you imagine how dilapidated or dangerous the 30 odd years old buildings would become?

    They are so wasteful! Do they want to use public funds to [bribe][10]/[buy][11] the hearts of owners or are they naïve?

2. Consultation in blackbox: Resolution made early on but only put in force late, moreover, one has to attend the blackbox (meeting room) within days; how many people can be accommodated in that room? Other than the 10 Committee members and if they arrange 10 friends of their own to attend the meeting earlier, the sum of HK$10 million of reserved funds will be over!

3. The Committee failed to be fair, just and open: According to the notice, expenses is close to ten million dollars. For such a big sum, why not consult in the imminent owners’ meeting instead [the Committee] operated in a sneaky, [devious][12] and rush manner within the blackbox;can the 10 odd persons represent more than 3000 owners?

[What kind of dirty business are you [Committee members] hiding?][13]/ [What kind of business are you hiding which cannot come into light?][14]

I do not believe all 10 members are blinded [by him][15].

Whoever rips this piece of paper off is an accomplice.

Block 5 Owner Lau Liu Fai ”

10.  The Poster is the subject matter of the Counterclaim.  Lau does not dispute that he had published and distributed the Poster.  He also admitted that the Poster referred to the MC.  The disputed question is whether the Poster would reasonably be understood by readers acquainted with the defendants as referring to them[16].

11.  The management company discovered about the publication of the Poster which thus became a subject for discussion at the 6^th Meeting of the 12^th MC held on 6 August 2013[17].  At this meeting, it was unanimously resolved that as the Poster was misleading and derogatory, the matter should be passed onto lawyers for advice and handling. 

12.  Eventually, on 27 September 2013, the MC issued a letter to all residents of the Estate (“the Letter”) responding to the publication of the Poster.  The contents of the Letter were as follows:

「 愛蝶灣業主委員會

Aldrich Garden Estate Owners’ MC

檔案編號：AG/L(EOC)‑13‑007

敬啟者：

有關本屋苑第五座工聯會成員劉燎輝先生公開信事宜

近日第五座工聯會成員劉燎輝先生於屋苑週邊廣貼大字報，內容涉及辱罵業委員各委員為“敗家”、“鬼鼠”、和“唔見得光”。業主委員會認為此舉是劉先生為了爭取成為來屆主席及為其政黨工聯會進駐本屋苑鋪路，目的在阻嚇屋苑其它業主參與選舉。本會希望各位居民不要被劉先生的行為所恐嚇倒，踴躍參加業委會的選舉及投票，為我們屋苑服務，建設更佳、更舒適的居住環境。

劉先生曾多次參加業委會的選舉，成為委員，然而曾經為了委員會反對他要求撥款兩萬元供他舉辦粵曲節目不得逞而辭任委員；於2011年，要求當時的本會主席林其東先生退選區議員而讓他自己參選，惟其後亦不果而辭去委員職位。去年他和他政黨黨友參選本苑委員會，企圖控制業委會，於選舉失敗後在選舉會場大肆吵鬧，整個過程均有錄音紀錄，而與會業主亦有目共睹。同時於去年選舉前，劉先生及其黨友歐陽見寶強行逐戶派發其競選傳單，甚至威嚇保安員不得阻止，最後第五座服務超過五年的好保安亦受不住壓力辭職。選舉後，劉先生在無事實根據下聲稱他有大量授權書被盜而致落敗，故向多個政府部門投訴，包括警方、選舉委員會、廉政公署、特首辦等，導致業委會主席及管理處為此無中生有的投訴而浪費大量時間及人力。其間，亦有多名住戶投訴劉先生在其不知情況下搜集了其單位資料而上門拜訪，有關住戶表示非常不滿及關注事件。

另外，劉先生於近月以自己組成及為主席的愛蝶聯誼會不斷聯同外間團體，包括工聯會、慈惠婦女會強行定本屋苑範圍內為街外組織旅遊的集合地點，我們愛蝶灣為私人屋苑，倘若容許屋苑外閒雜人仕隨意進入，將嚴重影響屋苑治安及居住環境，造成嚴重滋擾及影響。劉先生本人並無為整體本苑居民著想、而只顧個人利益而安排其他街外組織及非本苑居民進入本苑聚集，讓其政治團體進入本苑作出宣傳活動，破壞多年來愛蝶灣居民安居樂業的意願。

業委會各委員均犧牲自己的空餘時間義務服務屋苑，為屋苑獻謀獻策，及監督管理處的管理工作，以建設更好、更完善的居住屋苑。業委會每項決定均按法例及規範行事，光明正大，然而為何要受劉先生如此公開的中傷、騷擾及侮辱？委員會對此事件保留追究劉先生辱罵業委會各委員、其不盡不實及持續浪費屋苑管理資源的權利，並向本屋苑居民發出此信以正視聽！

此致

愛蝶灣各業主/住戶

愛蝶灣業主委員會

2013年9月27日 」

Translation:

“Aldrich Garden Estate Owners’ MC

Aldrich Garden Estate Owners’ MC

File no.: AG/L(EOC)‑13‑007

Dear Sir,

 

Re: Open Letter of Aldrich Garden Block 5
HKFTU Member Mr Lau Liu Fai

Recently Block 5 HKFTU member Mr Lau Liu Fai has put up posters around the Estate, contents of which involved abusing members of the Committee for being ‘prodigal’ and ‘furtive’ and ‘operating in a black box’. The Committee considered that Mr Lau’s conduct is intended to pave the way to become the next chairman of the Committee and for his political party ‘Hong Kong Federation of Trade Unions’ to station in the Estate, and are purposed to deter and threaten the other owners in the Estate from participating in the elections of the Committee. The Committee hopes that no resident would be intimidated by the above action of Mr Lau, and participate in the election and voting of the Committee, to serve the Estate, and build a better, more comfortable living environment.

Mr Lau had stood for the election of the Committee many times, and became a member, but he once resigned because of theCommittee’s refusal of his request to grant him funding of $20,000for him to organize Cantonese opera events; in 2011, he requested that the Committee Chairman at the time, Mr Lam Kei Tung, to withdraw from the District Council election and let himself run, but after that he also resigned from the post of member of the Committee because his request was refused. Last year he and his fellow political party friends ran for election for the Committee of Aldrich Garden, attempting to control the Committee, and they also shouted loudly at the election venue after losing, the entire process was voice recorded, and participating owners have seen itwith their own eyes. At the same time before last year’s election, Mr Lau and his fellow party member Au Yeung Kin Bo had forcibly distributed their election leaflets from door to door, and even intimidated a security guard into not stopping them; in the end a good member of the security staff at Block 5 of the Estate who had served for more than five years could not stand the pressure and resigned. After the election, without any factual basis in support Mr Lau stated that a high volume of his proxies was stolen causing his failure, as such he complaint to many government departments, including the Police, the Election Committee, the ICAC, the Chief Executive’s Office, etc, wasting a huge amount of time and resources of the Chairman of the Committee and the Manager in handling this complaint that came out of nowhere. In that period, many residents complained that Mr Lau had collected information about their flats without their knowledge and had visited them, and the residents involved expressed great dissatisfaction and deep concern.

Apart from this, in recent months Mr Lau used [愛蝶聯誼會] that he formed and chaired to repeatedly work with outside organisations, including the Hong Kong Federation of Trade Unions and [慈惠婦女會] to forcibly set the assembly point for trips of outside organisations within the area of the Estate. Our Aldrich Garden is a private property development, if we allow outsiders tocome in to the Estate at their own wishes, it would seriously affectthe security of the Estate and our living environment, cause seriousnuisance and effect. Mr Lau himself has no regards to the interest of the community as a whole, but is mindful of his own personal interests, and so he arranged for external organisations and non‑residents to gather in the Estate, and for his political party to carry on promotional activities inside the Estate, thereby disrupting the continual wish of Aldrich Garden residents for a peaceful living environment.

Members of the Committee sacrifice their free time to voluntarily serve the Estate, come up with ideas and plans for the Estate, and monitor the management work of the Management Office, in order to build a better, improved living property development. Every decision of the Committee was made according to the law and rules, with nothing to hide, but why was it subject to such open attack, harassment and insult from Mr Lau? The Committee reserves the right to hold Mr Lau responsible for insulting the members of the Committee, and his incomplete and dishonest yet continual waste of Estate management resources, and we hereby clarify matters to residents of the Estate with this letter!

To

Owners/Residents of Aldrich Garden

Aldrich Garden Owners’ Committee

27 September 2013

”

13.  The Letter is the subject matter of the plaintiff’s claim.

THE POSTER

14.  Since publication of the Poster came first in time, I will deal firstly with it and hence the Counterclaim.

15.  Lau admitted to publishing and distributing the Poster.  By reason of the manners in which he published and distributed the Poster, statements contained in the Posters were likely published to persons who might or might not be residents of the Estate.

Defamatory meanings of the Poster

16.  It is the defendants’ case that statements in the Poster contained the following defamatory meanings (by way of their ordinary and natural meanings):

(1)   the defendants squandered the public funds of the Estate;

(2)   the defendants were corrupt as they used public funds to bribe owners of the Estate in exchange of their support;

(3)   the defendants failed to preserve and enhance value of the flats in the Estate by failing to maintain and upkeep the buildings in the Estate;

(4)   the defendants were incompetent as they had wasted funds;

(5)   the defendants did not genuinely consult the opinion of owners of the Estate as to the said resolution regarding special repairs and the said resolution regarding waiver of one month of management fee;

(6)   the defendants squandered the HK$10 million odd sum of reserved funds of the Estate;

(7)   the defendants consulted or operated in a black box;

(8)   the defendants could or would arrange for its supporters to attend the consultation, thereby preventing others from attending the same;

(9)   by passing the said resolutions in haste, the defendants knew that they did not represent the 3000 odd owners of Aldrich Garden and acted in contrary to the general interest of owners of Aldrich Garden;

(10)   by passing the said resolutions in haste, the defendants attempted to hide dirty business or ulterior motive from the owners of the Estate; and

(11)   the defendants elected to furtively hold the consultation in a black box.[18]

17.  As an alternative, the defendants also argued the above defamatory meanings on the basis of true innuendo[19].  It can be seen from the particulars pleaded in support of true innuendo that they largely consistedof reliance on the colloquial meanings of several Chinese phrases in the Poster.  I am satisfied that such phrases as “敗家”; “收買人心”; “幼稚”; “黑箱”; “鬼鬼鼠鼠”; and “唔見得光嘅勾當” are all commonly known and understood phrases or slangs.  In my view, the reliance on true innuendo is unnecessary.  The meaning of these phrases would be within the general knowledge of ordinary Chinese people in Hong Kong [see Gatley on Libel and Slander, 12^th ed, §3.27]. 

18.  The defendants also argued on additional true innuendo meaning, ie, “the Defendants caused one month management fees be waived and such act was calculated to earn the owners’ support and votes in the next election of MC of Aldrich Garden”[20]. It is also my view that such reliance is unnecessary.  This pleaded innuendo meaning is not material different from that set out in paragraph 16(2) above.

19.  The plaintiff denied the defendants’ pleaded defamatory meanings.  He also put forward his version of the ordinary and natural meanings of the statements contained in the Poster as follows:

(1)   the management fees of the Estate could be properly used to renovate/improve the exterior of the buildings.  If this is done,the values of the individual units in the Estate can stay strong and even increase;

(2)   according to the MC’s estimate, there will be no improvement works for 10 odd years later.  If this is the case, the buildings in the Estate would become dilapidated or dangerous;

(3)   the MC is wasteful in deciding to waive management fees.  This is a move to win support of individual owners, and the price to pay (or consequence) is that there would be less public funds for the use of the MC and/or the Estate[21];

(4)   the Estate has a reserve in the region of HK$10 million odd, and the MC’s decision of waiving management fees has a huge impact;

(5)   as such, there should be sufficient consultation, and the consultation and discussion ought to take place openly;

(6)   it would be undesirable to conduct the consultation hastily in a small room.  The number of attendees would be limited, and they do not represent the majority views of the individual owners of the Estate[22];

(7)   it is necessary for the MC to act openly and fairly;

(8)   according to the notice issued by the MC, the expenses involved were HK$10 million odd, and the decision of waiving management fees has serious implication;

(9)   the discussion and consultation ought to take place openly, and there is no reason why the discussion and/or consultation does not take place at the upcoming annual general meeting;

(10)   as the consultation process does not take place in a satisfactory manner that is open enough, one would doubt whether there is any dealing that cannot come to light; and

(11)   before the MC decided to waive management fees, it had not adequately consulted the individual owners of the Estate.  Many of them did not understand the basis of the decision of the MC, and they felt puzzled and suspicious.[23]

20.  Both parties agreed that the legal principles that should be applied in ascertaining the meanings of words in a libel action have recently been succinctly summarized by Lok J in Multi‑Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at §§42 and 43.  I shall apply those principles accordingly.

21.  It is not in dispute that the Poster did not name the individual defendants and expressly referred to “業委會”, the MC.  The defendants’ pleaded meanings are predicated on the basis that the statements made in the Poster were published of and concerning each member of the MC.  The plaintiff argued that the Poster referred to the MC as a body/institution and not to the individual Defendants.  Counsel for the plaintiff Mr Lam did not dispute the applicable test which was set out in §62 of the decision of Lok J in Multi‑Winner Investment Ltd v Lau Ming Yee, ibid. The test is whether the defendants may reasonably be understood to be referred to by the words in the Poster.  Counsel for the defendant Mr D’Souza further referred me to The Incorporated Owners of Tung Lo Court v Tsui Wai Yip[2015] 4 HKLRD 397, §45 in which Poon J (as he then was) said:

“ It is important to bear in mind that an action for defamation is a purely personal action. The proper person to sue as plaintiff is the person defamed. The proper person to sue as plaintiff is the person defamed. Nobody else can sue for such defamation in his own name or on behalf of another person defamed. Thus if a corporation is defamed, only the corporation can sue for defamation. Its board of directors or office bearers cannot. If the directors or office bearers are defamed, they can sue for defamation. The corporation cannot. Likewise, if an IO is defamed, only the IO can sue for defamation. Its management committee or the officebearers cannot. If the management committee or an office bearer of the management committee is defamed, then members of the management committee or that office bearer can sue for defamation. The IO cannot. The position does not change because of s.29 of the BMO or for some other particular purposes the management committee is not regarded as a separate entity from the IO.”

22.  The Incorporated Owners of Tung Lo Court v Tsui Wai Yip was a case in which the plaintiff (the IO) sought to sue on four open letters issued by the defendant to owners of the estate.  The Court of Appeal observed that the Judge did not deal with reference in his judgment.  The Court of Appeal then noted that of the 4 letters, only one referred to the IO.  The other 3 letters expressly named the current management committee, the Chairman and the Secretary.  The Court of Appeal held that the Judge erredin finding that the said 3 letters referred to the plaintiff.  The dictum of Poon J was made in that context.  I do not accept Mr D’Souza’s submission that the dictum of Poon J is an authority for the proposition that whenever adefamatory statement is published of the management committee, membersof that committee can sue for defamation.  In my view, one has to apply the correct basic test: whether, in the light of all the circumstances and taking the specific context in which the statements were made into account, a reasonable person would conclude that the claimant was sufficiently referred to [see §7.9 of Gatley].

23.  In the present case, I find that reference is sufficiently established for the following reasons:

(1)   The title of the Poster read: “不負責任的業委會” and the contents that followed were attacks on the decision made by theMC; their reasons for decision; the process at which the decision was reached; and the consultative arrangement following that decision;

(2)   In the course of such attacks, Lau repeatedly referred to “他們”;“十位委員” and “你哋” such that reasonable readers would likely understand Lau’s attack as directing towards each and every member of the MC; and

(3)   The final few sentences are important: “究竟你哋有乜野唔見得光嘅勾當呀？我不相信十位委員都受其蒙敝！”.  This clearly gave readers an impression that these 10 MC members could not have been innocently misled by someone.  In other words, Lau was suggesting that the alleged misdeeds were consciously committed by the 10 MC members.  He even insinuated a conspiracy amongst them.

24.  Furthermore, Lau accepted in cross‑examination that the Poster referred to members of the MC and that residents of the Estate would know who were the members of the MCs.  The names of the members of the MCs would also appear in minutes of meetings of the MC which were periodically displayed at the noticeboards situated at the lobby of each and every block in the Estate.  In the circumstances and in the light of the context of the Poster, I find that the defendants may reasonably be understood as being referred to by the words in the Poster.

Discussions on defamatory meanings

25.  The title of the Poster expressly accused the MC as irresponsible “不負責任”.  Paragraph 1 of the Poster described the members “他們” as “這麼敗家” thus suggesting that they squandered public funds.  It continued to put forward two alternative reasons (in the form of a question) as to why such a decision was reached: (i) hoping to curry favours with the residents by the use of public funds “想用公錢收買人心”; or (ii) they are naïve “幼稚”.  It is trite law that the form in which an imputation is passed does not matter.  Words may be defamatory even though they are expressed in an interrogative form [see Gatley, §3.18]. 

26.  In my view, the first suggested reason was an imputation of ulterior motive.  It connoted that the decision of waiving one month’s management fees was not made for proper reason/purpose or with the due interest of the residents in mind.  The ulterior motive was to cultivate theirfavours.  The second suggested reason was that the MC members must have been downright incompetent.  In my view, the hypothetical reasonable reader would understand Lau as suggesting that it was “either this or that”.  The purported question was only posed after Lau’s definite conclusion of “他們這麼敗家”ending with an exclamation mark.  The entire paragraph conveyed a message to residents that the decision was so thoroughly wrong that the persons who made it would either be downright incompetent or motivated by an ulterior purpose. 

27.  I do not accept the plaintiff’s pleaded meanings set out in paragraph 19(1) to (3) as the ordinary and natural meanings of the words contained in paragraph 1 of the Poster.  They did not account for the derogative senses contained in the words as explained above.  I largely agree with the formulations of the defendants with minor adjustments.  I find that the ordinary and natural meanings of paragraph 1 of the Poster were:

(1)   the MC members squandered the public funds of the Estate;

(2)   the MC members did not use the public funds properly or responsibly and hence acted not in the interest of the residents; and

(3)   in coming to that decision (of waiving one month’s management fees), the MC members were either downright incompetent or were acting under the ulterior motive of seeking to cultivate favours with the residents.

28.  Paragraph 2 of the Poster was entitled “黑箱內諮詢”.  It was followed by “到黑箱里 (會議室) 諮詢”.  These words suggested that the consultation process that was arranged to be held at the conference room was not an open and transparent consultation.  Lau even insinuated that the consultation was not genuine.  Firstly, he questioned the timing of the consultation.  Secondly, he suggested that the conference room could only accommodate a handful of persons and the “10 Committee members” could arrange their supporters to fill up the room.  Under that situation, Lau suggested that the ten million dollars of reserve would be doomed “就此玩完”.  The exclamation mark that followed emphasized the seriousness of Lau’s proposition.

29.  Again, I do not accept the plaintiff’s pleaded meanings set out in paragraph 19(4) to (6) as the ordinary and natural meanings of the words contained in paragraph 1 of the Poster.  They failed to account for the derogative senses contained in the words as explained above.  I find that the ordinary and natural meanings of paragraph 2 of the Poster were:

(1)   the MC members disingenuously arranged a purported consultation that is neither open nor transparent; and

(2)   The MC members could manipulate such consultation and squander the HK$10 million odd reserve funds.

30.  The title of paragraph 3 of the Poster stated that the MC failed to act fairly, righteously and openly “做不到公平公正公開”.  Lau than questioned why consultation on such important issue should not be conducted at the impending Owners’ Meeting.  In the course of posing this question, Lau actually described the consultation proposed by the MC as “鬼鬼鼠鼠地在黑箱內倉卒進行” in contrast.  These words connoted that the MC was seeking to carry out consultation in a hasty, surreptitious and non-transparent manner.  Lau then posed another question in a rhetorical fashion: “究竟你哋有乜野唔見得光嘅勾當呀？”.  Though framed in an interrogative form, it was in my view conveying an imputation to the hypothetical reasonable reader that the MC members must have some hidden agenda or conspiracy.  The last sentence “撕去此紙者即是同謀” (my emphasis added) echoed and reinforced the imputation of “hidden agenda or conspiracy”.

31.  I therefore equally reject the plaintiff’s pleaded meanings set out in paragraph 19(7) to (11) above which avoided all the derogatory connotations explained above.  I find that the ordinary and natural meanings of paragraph 3 of the Poster were:

(1)   the MC members did not act fairly, righteously and openly;

(2)   the MC members were seeking to carry out consultation in a hasty, surreptitious and non‑transparent manner; and

(3)   there was a hidden agenda or conspiracy amongst the MC members.

32.  The ordinary and natural meanings of the Poster that I found andset out in paragraphs 27, 29 and 31 above all tend to lower the MC members in the estimate of others.  They are thus defamatory of and concerning the defendants.

Justification re the Poster

33.  In the Re‑Amended Reply and Defence to Counterclaim[24], the plaintiff pleaded particulars of facts and matter in support of justification of the paragraph 1 of the Poster.  Cutting out those matters that are uncontroversial or in my view irrelevant, they amounted to the followings:

(1)   that the decision to waive management fees was irresponsible and unsound;

(2)   as a result of that decision, there have been less public funds available for the use of the MC and this was wasteful;

(3)   the Estate has been under tight financial circumstances and there has been no or no sufficient funds to carry out renovationor improvement works in respect of the exterior of the buildings in the foreseeable future;

(4)   the MC ought to know the tight financial circumstances and there was no reason why it would still make the decision;

(5)   in fact, the financial circumstances of the Estate have deteriorated significantly as a result of the waving of one month’s management fees;

(6)   the plaintiff relies on the MC’s letters dated 26 July 2013 stating that the reserve of the Estate had been decreasing continually[25]; and

(7)   the plaintiff relies on various “post‑publication” documents of the MC (such as letters and minutes) which related to the financial condition of the IO between 13 February 2015 and 1 April 2017[26].

34.  In respect of paragraph 2 of the Poster, the pleaded particulars of facts and matters in support of justification were[27]:

(1)   as a result of the decision to waive management fees, the income and/or funds of the Estate had actually decreased;

(2)   despite the seriousness of consequence flowing from the decision, there was no consultation or discussion of the matter.  Individual residents were not consulted;

(3)   the residents did not have adequate opportunities to express their views on the matter.  Some of them did not understand the basis of the decision and they felt puzzled and suspicious; and

(4)   the purported consultation actually related to reparation works and not about the decision of waiver of management fees.  It took place in a small room.  The MC did not give adequate advance notice and only a small number of residents attended the said consultation.

35.  In respect of paragraph 3 of the Poster, the plaintiff’s pleaded particulars of facts and matters in support of justification merely repeated those set out in paragraph 34 above.

Plaintiff’s evidence on justification issues

36.  Lau said in‑chief [28] that the decision made in mid‑2013 to waive management fee was contrary to usual practice which involved discussing such important matters at annual general meetings of the MC before a decision was made.  He said that the MC only held a purported consultation in a small room of about 150 square feet and without adequate advertising in advance.  As a result, only a small number of residents attended the consultation meeting.  Lau said he genuinely believed that the said decision was contrary to the provisions of the DMC.  He said that the Estate would need to undergo renovation/repair works in the near future and there was a risk that the MC might not have sufficient cash and its financialsituation strained.  Given the importance of the decision, it was inappropriate to hold the consultation meeting in a small room without adequate advertising in advance.  There was no reason why the issue was not to be brought up in the coming general meeting of the MC.  Lau further said that he went to the consultation meeting but the MC did not welcome him and expressed hostility.  He then discussed with 8 to 10 residents who agreed with his views.  Lau therefore decided to speak for the interest of the residents and published the Poster.  Lau said that he did not attack or criticize the character, personality and/or integrity of the members of the MC.  His use of the words “敗家”, “鬼鼠” and “唔見得光” referred to the fact that there was no reason why the matter was not to be brought up for discussion at the coming general meeting of the MC.

37.  In his Supplemental Witness Statement[29], Lau said that the 7^th MC of the Estate in 2007 had also decided to waive one month’s management fees.  The 3^rd defendant was then the chairman of the MC.  On that occasion, Lau did not issue a letter to the MC to formally object but he did share his view with other residents that such action would harm the long‑term interest of the Estate.  Lau said that he had discussed with many residents regarding the 2007 and 2013 proposals to waive one month’s management fee and they agreed with his objection.  Lau accepted that the owners’ funds at the end of 2006, 2007 and 2012 were HK$7.2 million, HK$9.6 million and HK$12.6 million respectively.  However, they were not large sums for an estate with 3,000 flats.  Lau also said that the owners’ funds as at 31 December 2013 shrunk to HK$10.1 million.  He therefore genuinely believed that his comment of “敗家” was justified.  Lau then referred to the notice issued by the MC in 2016[30] seeking upward adjustment of management fees to show that the Estate faced financial hardship in recent year.  He said that had the decision of waiving one month’s management fees not been made back in 2013, the Estate would probably not have to increase management fees in March 2016.  Lau said that the decision in 2013 to waive management fee was only a gimmick in order to gain popularity from residents out of the expenses of the Estate’s common financial resources.

Defendants’ evidence on justification issues

38.  Of the defendants’ only the 1^st defendant Mr Lam Kei Tung (“Lam”) gave evidence.  Lam was the chairman of the 12^th MC of the Estate which made the decision to waive one month management fees from residential owners in 2013.  Lam was also subsequently re‑elected as the chairman of the MC for all successive years up to the time he gave evidence.

39.  Lam said that the MC was elected by owners of the Estate to make decisions on their behalves regarding the affairs of the Estate.  He referred to the resolutions passed by the 12^th MC at its 5^th Meeting held on 18 June 2013 to:

(i)   carry out certain specific minor repairs in the Estate and that the budget for the repairs should not exceed the aggregate sum of 2 months’ management fee; and

(ii)   waive payment of management fees for one month.

40.  In fact, contemporaneous documents showed that discussions about the matter began in March 2013.  It can be seen from the Minutes of the 3^rd Meeting of the 12^th MC held on 12 March 2013[31] that the MC discussed on the surplus funds.  It recorded that the Estate had “surplus” of HK$12 million.  It should be noted that when the MC talked about this “surplus”, it was actually referring to the total sum of HK$10 million of “surplus in management account” and HK$2.4 million in the “sinking fund”.  These two sums were collectively referred to as “Property Owners’ Fund” in the balance sheet of the IO[32].  In fact, apart from the “Property Owners’Fund”, the Estate also held reserves in the form of “Management Fee Deposits”;“Emergency Repair Fund” and “Long Service Reserve”[33].  The total reserve as of 21 October 2012 was HK$20.6 million odd.  The financial position remained roughly the same as of 31 December 2012[34].

41.  It was against this financial condition that the MC discussed about the “surplus” at the 3^rd Meeting of the 12^th MC on 12 March 2013.  The Minutes of that meeting recorded that:

“ After discussions, the MC agreed to set aside 3‑months’ management fees (residential) as provisional fund ‘撥備基金’; and set aside HK$3M for the purpose of special repair works. This proposal is to prevent outsiders from generating bad intentions over such sizable surplus. The remaining HK$3M to HK$4M would be sufficient for daily operations. The aforesaid would not involve the management fees deposits. The MC also suggested waiving one month’s management fee from residential owners. To do so in 2013 would involve management fees of a total of HK$1.7M.”

In the end[35], the MC resolved unanimously that one month’s management fees would be waived in 2013 from residential owners which would be a total of HK$1.7 million.  It was also resolved that the Chairman (Lam) would follow up the matter with the Manager.  Furthermore, a notice/‌letter would be issued to residents to explain to them details about the proposal.

42.  At the 4^th Meeting of the 12^th MC held on 23 April 2013, the MC discussed on the two versions of 2013 budgets that should be presentedto the residents of the Estate[36].  Then by a letter/notice dated 23 May 2013, the Manager informed residents as follows:

“ To: All Owners of Aldrich Garden

Re: Draft Budget of Aldrich Garden for the year 2013

Please be informed that the Draft Budget of Aldrich Garden for the year 2013 has been prepared, and is being posted in the G/F lobby of each Block for your perusal. Considering the current economic situation, we recommend at this stage to freeze the level of management fee for residential, shop and kindergarten, and suggest to waive one month management fee for residential units. However, as the account for carpark suffers deficient [sic], the management fee for carpark will be increased to HK$157.00 with effective [sic] to 1 July 2013. Owners are earnestly invited togive comments regarding the Draft Budget, and please submit the same, if any, in writing to the Estate Management Office within 14 days.”
      (Emphasis added)

43.  The decision of waiving one month’s management fee was thus included in the draft budget and highlighted in the said letter/notice.  The unchallenged evidence of Lam was that this notice was posted up for 14 days until 6 June 2013.  The draft budget was posted up on the designated notice board at the lobby of each block of the Estate.  Residents were invited to provide their comments in writing.  Lam said that no owner, including Lau, objected to the waiving of one month’s management fees.  Lau accepted in cross‑examination that he did not send any written comment to the Manager within the 14 days period or at all.

44.  Then on 18 June 2013, the MC met at the 5^th Meeting of the 12^th MC.  It was resolved that the minutes of the 3^rd and 4^th Meetings be approved[37].  According to the evidence of Lam[38], it was on this 5^th Meeting of the 12^th MC that the 2013 Budget was passed and the MC resolved to: (1) carry out certain special minor repairs in the Estate and the budget for the repairs should not exceed the aggregate sum of two months’ management fees; and (2) waive one month’s management fees.  Lam’s evidence was corroborated by the letter dated 26 July 2013 issued by the MC to all residents[39].  The said letter first informed residents of the resolutions madeby MC at the 5^th Meeting of the 12^th MC.  Then explanations were given to residents as to the MC’s views on how the surplus funds should be utilized.  The gist of the said letter was already set out in paragraph 7 above. 

45.  According to Lam, the actual waiving of one month’s management fee was effected in December 2013.  As at 30 December 2013, after the waiving of one month’s management fees, the total reserves of Aldrich Garden was about $18.3 million comprising of: (1) HK$5.2 million odd as surplus in the management account; (2) HK$4.7 million odd in the sinking fund; (3) HK$4.9 million odd in management fee deposits; (4) HK$1.48 million odd in emergency repairs fund; and (5) HK$1.3 million odd in long service payment reserves[40].  Accordingly, the total reserve fell by approximately HK$1.8 million as anticipated.  That was less than 10% of the original reserve.

46.  Lam further explained that Lau was mistaken as to the consultation sessions mentioned in the 26 July 2013 letter.  The two consultation meetings arranged to be held on 1 August 2013 and 4 August 2013 were for the purpose of discussing the special minor repairs to be carried out at the Estate and to propose a list of such repair works.  These two consultation meetings were conducted in a fair, just and open manner.  Lam said that Lau participated in the consultation meeting held on 4 August 2013.

47.  Lam also mentioned that 2013 was not the first occasion when the MC resolved to waive one month’s management fee.  In December 2006, after due discussion at its 2^nd Meeting, the 6^th MC resolved to waive one month’s management fee to be effected in February 2007.  Such a decision was made at a time when the total reserve was merely HK$13.8 million[41]. Similarly in December 2007, it was resolved after due discussion at the 3^rd Meeting of the 7^th MC that one month’s management fee would be waivedin February 2008[42].  The total reserve as at end of 2007 was HK$17.4 million odd[43].  It is also interesting to note that the Minutes of the 3^rd Meeting of the 7^th MC expressly mentioned a consultation on the proposal of waiving one month’s management fee.  It recorded that after a period of 14 days within which residents could provide comments, the Manager reported that no comments from residents had been received.  Lam said that on both of these two prior occasions, the plaintiff did not make any complaint to the MC about the proposals to waive management fees.

48.  Lam maintained that the decision to waive management fees in2013 was made in the interest of all residents of the Estate.  Up to the dateof his evidence, no other residents (apart from Lau) had made any complaint.

Discussion on evidence re justification

49.  I will first deal with whether the evidence can establish the truth of those pleaded “particulars of facts and matters in support of justification” as set out in paragraph 33 above.  Depending on what I find to be true, I will then assess whether those proven true facts can amount to substantial justification of the defamatory meanings I have found and set out in paragraphs 27, 29 and 31 above.

50.  As to paragraph 33(1) and (2), the contemporaneous documents showed that in 2006 and 2007, the MC had resolved to waive one month’s management fees on two occasions.  These proposals were not discussed at AGM. They were both discussed and resolved during MC meetings.  Lau at least admitted knowing about the 2007 incident.  He also admitted that he did not issue a letter to the MC to raise objection.  I do not accept Lau’sevidence that the 2013 decision to waive management fee was contrary to “usual practice of discussing such important matter at AGM before the MC made a decision”.  Furthermore, when Mr D’Souza confronted Lau with the minutes of MC meetings in 2006 and 2007 to show that the then respective amounts of “surplus” were substantially less than that as of 2013, Lau avoided the question by saying “I did not pay attention to figures”.  I find Lau evasive.  Lau was then confronted with §3.11 of the Minutes of the 3^rd Meeting of the 12^th MC[44].  This paragraph succinctly set out the reasons why the MC thought it appropriate to waive one month’s management fee.  It also recorded the other measures of allocating the sizable surplus to ensure that adequate provisions were made for maintenance; daily operations; and contingencies.  Lau again responded by saying that he took no heed to figures and he did not understand §3.11.  Later on, Lau admitted in cross‑‌examination that he knew that despite the waiver of one month’s management fee, funds were reserved for maintenance.  He admitted knowing that money would continue to be spent on repairs.  Yet, his rationale for opposing the waiver was “nobody would mind having more money, the more the better”.  I find Lau’s attitude unreasonable.  When asked as to whether he would consider describing the MC as “敗家” was unfair, Lau said it was fair because “spending at will is 敗家”.  When asked as to whether he would consider it unfair to criticize the MC as “幼稚”, Lau said it was fair because“waiving 1 month management fee at will is 幼稚”.  I am not at all impressed by the attitude of Lau.  There is no basis for Lau to say that the decision was made by the MC at will.

51.  I find that there were adequate discussions and proper financial basis for MC to arrive at that decision.  I refer to the documents set out in paragraphs 40 to 45 above.  I find that the plaintiff has failed to prove that the decision to waive management fees was irresponsible and unsound.  The waiver benefited each and every residential owner of the Estate at a time when the Estate had over HK$20 million in reserve.  The effect of the waiver was merely to reduce the reserve by HK$1.7 million, less than 10%.  Such a decision can hardly be called “irresponsible and unsound”.  Neither can it be said to be “wasteful”. It did not involve spending of money at all. The decision‑making process and the reasoning behind the decision was fully documented.  One might disagree with the MC’s decision but there is no basis to suggest that it was made “at will”.

52.  As to paragraph 33(3) and (4), Lau relied on the notice issued by the MC on 28 January 2016[45] to prove that the Estate faced financial hardship in recent years.  First of all, the decision to waive one month’s management fee was made between 12 March 2013 and 18 June 2013, nearly 3 years ago.  Secondly, the decision was made on the then financial conditions of the Estate as revealed in the balance sheet as of 31 December 2012[46].  Objectively, I cannot see that the Estate was under financial hardship around March/June 2013.  Thirdly, the said notice should be readin its proper context.  It started off saying that the existing management fees had remained unchanged for 15 years.  It then referred to the hitherto efforts of cost cutting by the MC.  It then continued as follows:

“ As a result of the Minimum Wage Ordinance effective from 2011 and its every‑two‑years adjustment, the salary of security and running staff had increased tremendously. In addition, the general accelerating trend of inflation rate in recent years, the increase of goods and services prices accumulated over the years, the more tightened regulations from the HKSAR and the increase in the repair and maintenance works and costs as the Estate gets aging has increased the burden of our financial situation. In the circumstances, the expenditure of the Estate increases inevitably, and the Estate faces financial hardship in recent years. Upon prudent consideration and thorough discussion made at the Owners’Committee meeting, in order to maintain a healthy financial status, to be able to afford the expenditure for the repair, maintenance and improvements of the facilities of the Estate and to enhance property value, we have decided to adjust our management fees and other fees as follows starting from 1 March 2016.”

In the evidence of Lam under cross‑examination, he explained that the increase in management fees for 2016 was for reasons not expected in 2013.  Lam said that in 2013, they did not expect that the minimum wage would berevised in 2 years’ time.  In 2013, the MC was not aware of the Government’sintention of imposing compulsory inspection of windows which would requirethe IO to inspect and repair all windows in the common areas.  The MC didnot know in 2013 what impact such policy would have and to what extent.  The deterioration rate of window frames from 2013 to 2016 was also beyondthe MC’s expectation.  As for the next increase in management fees in 2017, Lam explained that it was largely because the increase in 2016 was too low.  The MC discovered in 2016 that the windows inspection report revealed conditions more serious than expected.  There was widespread and high degree of deterioration.  More importantly, deteriorations occurred at some places where scaffoldings would have to be erected for repair works to be undertaken.  Scaffoldings were very expensive and far outweighed the costs of the windows repair/replacement.  This was not anticipated in 2013.  Under these circumstances, Lam disagreed with counsel’s suggestion that the financial condition of the Estate in 2012/2013 was not good. 

53.  Counsel for the plaintiff then relied on the Minutes of the AGM held on 21 October 2012[47] with the view to demonstrating that the total amount of management fee received in 2012 was insufficient to cover the actual expenditure incurred.  In this minutes, the actual management fees received between January and July was HK$12,910,789.29.  The actual expenditure incurred for the same period was HK$13,536,842.21.  There was thus a deficit of HK$626,052.92.  With respect, a deficit for the first 7 months did not suggest a deficit for that entire year at all.  There is no reason to expect that the monthly expenditure would be uniform.  Some months might have incurred higher expenditure because of works undertakenduring those months.  Other months would experience savings if less events occurred.  Furthermore, the figures in the said minutes were stated to be “unaudited”.  No evidence has been adduced to show that the Estate suffered loss in the year of 2012.  Quite to the contrary, the opening paragraph of the 28 January 2016 Notice stated that the Estate was hitherto able to maintain healthy financial conditions thanks to the cost cutting and conservative monetary policies of the MC.

54.  Consequently, I find the evidence and explanation of Lam credible and reasonable.  I do not find that the increases of management fees in 2016 and 2017 were reflective of “financial hardship” or “tight financial condition” as of March/June 2013.  As to the exterior of the buildings in theEstate, Lam explained that the MC had always been carrying out repairs and maintenance works as and when required.  As of 2013, the MC did not foresee that the exterior walls called for imminent and major repairs.  The exterior walls were paved with tiles.  Buildings with painted walls could easily be beautified.  Yet for tiled walls, replacing tiles would involve hacking off all existing tiles.  To do so would be risky and might cause water seepage.  It was thus not a light decision to take.  The Estate was a relatively new estate as of 2013 and the MC only foresaw replacement of tiles at a much later stage.  Again, I find the evidence of Lam credible and reasonable.  It was thus not a case of the Estate not having sufficient funds to carry out exterior wall improvements in the foreseeable future.

55.  Consequently, I find that paragraph 33(3) is not established by evidence.  For the above reasons, paragraph 33(4) is also not established.  Similarly as for paragraph 33(5), I do not find that the waiving of one month’s management fee actually resulted in any significant deterioration of the financial circumstances of the Estate.

56.  As for the MC’s notice dated 26 July 2013, I find that the plaintiff twisted the contents of this notice to suggest that the MC had admitted that the reserve of the Estate had been decreasing continuously.  In its proper context, the notice was saying that if the sizable surplus is not put to use and just sit in the bank, it could not generate sufficient bank interest to offset the effect of inflation.  I also find that the plaintiff’s reliance on post‑publication documents of the MC relating to the financial conditions of the Estate in 2015 and 2017 is misplaced.  They are not relevant at all and are not reflective of the prevailing situation faced by the MC in March 2013.

57.  The matters set out in paragraph 34 above relate to defamatoryimputations arising out of paragraph 2 of the Poster.  First of all, the plaintiff admitted in pleadings[48] that he was mistaken about the consultations mentioned in the 26 July 2013 Notice.  As Lam explained in his evidence, the 2 consultations scheduled to take place on 1 August 2013 and 4 August 2013 were for the purpose of discussing the special minor repairs to be carried out at the Estate and to propose a list of such repair works.  These two consultation sessions were not to discuss on whether one month’s management fees should be waived in 2013.  A decision to waive one month’s management fees had already be made by the MC on 12 March 2013 and reconfirmed in June 2013.  Paragraph 2 of the Poster was thus written by the plaintiff under a basic misconception on his part.

58.  As already mentioned in paragraphs 40 to 45, after the MC’s resolution of 12 March 2013 and before the actual implementation of the waiver, residents were in fact consulted.  Draft budgets of 2013 were posted up at notice boards.  A letter/notice from the Manager dated 23 May 2013 highlighted the suggestion to waive one month’s management fee.  The draftbudgets actually included this element of waiver.  Residents were invited to give their comments in writing within 14 days.  It is not in dispute that no resident, including Lau, submitted any opposing comment in writing within the 14 days period.  In my judgment, it cannot be said that there was no openconsultation on the issue of waiving one month’s management fees in 2013.  In cross‑examination, Lau admitted knowing that draft budgets were posted; residents were invited to comment; and time were given to residents to submit their comments.  Nonetheless, the plaintiff still maintained that he was justified in criticizing the MC as working within “黑箱”.  Mr D’Souza suggested to Lau that he was mistaken and that he simply did not understand the process and how the resolution was made.  Lau replied: “I don’t understand how they did things”.  Yet, serious accusations were made against the MC members.  I find the attitude of the plaintiff most unimpressive.

59.  Counsel for the plaintiff argued that the resolution passed by theMC on 12 March 2013 was made prior to any consultation with the residents. This argument only has superficial attraction.  First of all, the chronology of event was set out in paragraphs 40 to 45 above.  Secondly, when the MCpassed the resolution on 12 March 2013, it was in the nature of a “provisional” decision.  In §6.11 of the minutes of that meeting[49], the MC described the waiver of one month’s management fees as a proposal “方案” which would be explained to residents in a subsequent letter/notice.  In substance, the MC was resolving to put forward this proposal to the residents.  In the letter/notice 23 May 2013, the Manager described the waiver of one month’s management fee as a “suggestion”.  It was thus not a foregone conclusion.  This waiver was included in the draft budget and residents were invited to give their comments.  It is not in dispute that no resident (including Lau) submitted comments.  Thereupon, the MC passed the resolutions at the 5^th Meeting held on 18 June 2013.  In other words, the decision to waive one month’s management fees was made “absolute” on 16 June 2013.  It was thus finally made after consultation with the residents.

60.  As for paragraph 34(1), it is factually true but is neither here northere.  By waiving one month’s management fees, the Estate’s income would obviously decrease by around HK$1.7 million.  As for paragraph 34(2) and (3), I do not however find that there were any serious consequence flowing from that decision other than that most, if not all of the residential owners would probably be pleased by the alleviation of financial burden.  I also find that it was false to suggest that there was no consultation with theresidents.  I find that the residents did have adequate opportunities to express their view on the matter.  I find that it was merely a bare unsubstantiated assertion of Lau that some residents did not understand the basis of the decision, felt puzzled and suspicious.

61.  As for paragraph 34(4), it reflected Lau’s own misconception about the purpose of the two consultation sessions.  Lau’s accusations about lack of transparency in the decision‑making process of the waiver of one month’s management fees were necessarily wrong and misguided.

62.  In conclusion, I find that the plaintiff only succeeds to prove the truth of paragraph 34(1). The truth of this single innocuous fact alone cannot justify the defamatory meanings as I have found in paragraphs 27, 29 and 31 above.  The defence of justification fails.

Honest comments

63.  The facts and matters pleaded in support of the defence of honest comments were rather confusingly pleaded[50].  They were confusingly linked with the defence of qualified privilege.  Counsel for the plaintiff however clarified in his Opening[51] that the plaintiff actually relies on the same facts and matters pleaded in support of justification as the true facts upon which the comments were based.

64.  In the circumstances, the defence of honest comments can be easily disposed of.  I have found that only one fact that is set out in paragraph 34(1) has been established to be true.  In other words, the comments made by the plaintiff in the Poster were based on predominantly wrong facts.  It is trite law that one important objective criterion for the defence of honest comments is that the comment must have been based on true facts.  Lord Nicholls in Cheng & AnorvTse Wai Chun (2000) 3 HKCFAR 339, at 347G stated that if the facts on which the comment purports to be founded are not proved to be true, the defence of honest comment is not available.

65.  Section 27 of the Defamation Ordinance, Cap 21 cannot come to rescue either.  The section reads:

“ 27. Fair Comment

        In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

(Emphasis added)

The only true fact was that “as a result of the decision to waive management fees, the income and/or funds of the Estate had actually decreased”.  In my judgment, the expressions of opinion[52] which carried the defamatory meanings as I have earlier found could not have been made by an honest person (however prejudiced he might be, and however exaggerated or obstinate his view) basing on this piece of true fact alone.

66.  In conclusion, the defence of honest comment also fails at the objective level.

Qualified privilege re the Poster

67.  It is plaintiff’s own pleaded case[53] that he posted the Poster near a bus stop for the bus route no. 102 near one of the two main entrancesof the Estate (“the bus stop”).  He further averred that he had placed a pile of the Poster outside one of the entrances of Shau Kei Wan MTR station in order for the residents of the Estate to collect.  In cross‑examination, Lau said that he posted the Poster at an electric box at the bus stop.  He believedthat it was posted up for a few days.  Lau then denied distributing pamphlets bearing same contents of the Poster.  I do not accept Lau’s evidence as it was contrary to the admission he made in his pleading.

68.  Lau however accepted that the MTR exit closest to the Estate would be D2.  Lau also accepted that exit D2 was the MTR exit closest to other estates namely Oi Tung Estate, Tung Yuk Court and Tung Tao Court[54].  Lau also identified the route no. 102 bus stop on Exhibit D1 and accepted that 2X, 2, 722, 720 buses all stopped at this bus stop.  Lau accepted that green mini‑buses also stopped there.

69.  Mr D’Souza submitted that the defence of qualified privilege fails because even on plaintiff’s own pleaded case, the Poster (including pamphlets bearing the same contents) was published to members of the public who would have no reciprocal duty–interest relationship between them and Lau on the matters referred to in the Poster.  Mr D’Souza relied on Gatley, §14.69 which reads:

“Excessive Publication

Publication to uninterested persons. Publication must be proportionate to the necessity of the occasion. There may be cases of great urgency where, even under the classical form of privilege, publication to the public as a whole is the only practical method of bringing information to the attention of the persons in whose interests the defendant acts…it follows from the fundamental requirement of reciprocity of duty and interest that publication to a person who does not share in this reciprocity is not generally privileged…. As a general rule therefore the defendant should be careful to make this communication only to those persons who have a legitimate interest or duty in relation to the subject‑matter. The fact that a communication between A and B is privileged does not justify A in making the communication in a manner, or at a time, which would necessarily involve its publication to other persons who have no such interest or duty, no privilege would prima facie attach to any such publication.

However, if strict reciprocity were essential, society and its business could not be conducted, as others without a direct interest in the communication are regularly employed in helping to make the communication and it would be impossible to communicate if everydefamatory communication had to be confined to those with a directduty or interest in relation to its subject‑matter.  For these reasons, communications to persons without such an interest or duty are nevertheless privileged if they are published reasonably, in the ordinary course of business, and no more widely than is required for the effective making of the communication, and if they would be privileged but for such incidental publication.  Such a privilege has been referred to as an ‘ancillary’ or ‘incidental’ privilege …”  

(Emphasis added)

70.  Mr D’Souza then referred to Mok Kam KwaivLam Mo Fat, unreported, HCA 1868/2010.  In that case, Chung J found that the defendant participated in the hanging of banners in which words defamatory of the plaintiff were contained.  The banners were hung and displayed at conspicuous spots of Pai Tau Village, Shatin during a period of several weeks.  The plaintiff was the chairman of the said rural committee and a district council member.  The banners accused the plaintiff of incompetence; unfit to hold his office; and had “sold out/betrayed” those he represented and acted in the interest of a party whose interests conflicted with those which the plaintiff represented.  The hanging up of the banners had its origin in a proposal to build a footbridge to help lessen the heavy traffic between Shatin railway station and certain buildings.  The Pei Tau Village residents did not welcome the proposal and had raised objections over the years.  The defendant sought to rely on qualified privilege.  Chung J[55] rejected the defence.  His Lordship held that the defendant did not have a duty to publish matters concerning the proposed footbridge to the general public (ie a readership beyond the local villagers/residents and/or potential users of the proposed footbridge and/or the roads in that vicinity).  Similarly, there was no corresponding interest on the general public’s part to receive the information.  The proposed footbridge was a matter which should be of direct concern to those who may from time to time use it, or may in some way be properly considered to be affected by it.  In that sense, Chung J considered that it was a “local” matter. 

71.  Counsel for the plaintiff Mr Lam submitted that the plaintiff’s mode of publishing the Poster was a reasonable mode of publication because:

(i) the plaintiff was not allowed by the management company and the MC to post the Poster within the Estate;

(ii) the passers-by of the bus stop for Bus No. 102 were mainly residents of the Estate;

(iii) people who got on and dropped off from the bus stop for Bus No. 102 were mainly residents of the Estate; and

(iv) the bus stop for Bus No. 102 was very near to the entrance of the Estate.

72.  Mr Lam relied on the defendants’ pleaded case[56] that residents of the Estate were prohibited from posting any comments, views or opinions in relation to individual members of the MC around the area of the Estate without prior authorization or consent of the Manager.  There was no specific notice/letter issued by the MC or the Manager containing a reference to such policy[57].  In the evidence of Mr Choi Kin Ming (the second defence witness) who is the Assistant Property Asset Manager employed by the Manager (“Choi”), he simply relied on the Manager’s duty to remove advertisementsfrom the walls of the buildings in the Estate in accordance with the relevantprovisions of the DMC[58].  This was not an absolute prohibition.  It merelyrequired the prior written permission of the Manager.  Lau did not attempt to seek permission from the Manager to post the Poster within the area of the Estate.  Lau did not provide any reason for not doing so.  Lau could also have sent the Poster (in pamphlet size) by ordinary post to each residential owner.  It might have been more troublesome and might cost him some postal fees.  Lau did not explain why he had not considered or adopted such a method of communication.  In cross‑examination, Lau also admitted that he kept personal data of those residents who had participated in the activities he arranged and those residents who voted for him in the past.  Lau could have distributed the Poster (in pamphlet size) to them individually and then enlisted their assistance in circulating further amongst residents.  Lau did not explain why such steps were not considered or adopted.

73.  Mr Lam also argued (with reference to Exhibit P5) that Sai Wan Ho station is the MTR station closest to residents of Tung Yuk Court and Tung Tau Court.  It may well be so but it does not help Lau’s case.  There are multiple reasons for a person to take a particular route.  In any event Lau admitted that the Sau Kei Wan station is the MTR station closest to residents of Oi Tung Estate which is virtually opposite that of the Estate.  It cannot be seriously disputed that people that used the Shau Kei Wan station D2 exits; those that board or alight from buses and mini‑buses at or near the No. 102 bus stop are not confined to residents of the Estate.

74.  Mr Lam then argued that the Poster did not name each MC member and hence, those people that read the Poster/pamphlet and who understood that individual defendants were defamed must be residents of the Estate.  With respect, he is confusing the concepts of “reference to plaintiff” and “reasonable width of publication for qualified privilege”.  What is reasonable publication in the eyes of qualified privilege is determined by examining whether the publisher reasonably expects that the method of publication would result in the publication being confined to persons that share reciprocal duty‑interest or common interest.It will not be reasonable to publish a statement to persons not sharing such interests in the hope that they may not understand who is being attacked.  In any event, there is no basis to suggest that only residents of the Estate would likely understand the defendants as being referred to in the Poster.  It is perfectly plausible (and indeed likely) that each individual defendant has acquaintances living nearby the Estate and having knowledge of the fact that he/she is a member of the MC of the Estate. 

75.  In the circumstances, I agree with the submissions of Mr D’Souza and find that the defence of qualified privilege fails by reason of the unjustifiably wide and indiscriminate method of publication of the Poster (and pamphlets).  Based on this finding, it is unnecessary for me to go into the defendants’ case that Lau was in any event actuated by malice when he published the Poster (and pamphlets). 

76.  I therefore find that the defendants are entitled to their counterclaim against the plaintiff.  I will deal with relief in due course.

THE LETTER

Publication

77.  I now proceed to the plaintiff’s claim for libel based on the publication of the Letter.  It is not in dispute that the Letter was published to all residents of the Estate in the name of the MC.  According to the minutesof the 6^th meeting of the 12^th MC held on 6 August 2013[59], Lau’s publication of the Poster was discussed.  The MC considered that the Poster contained misleading and derogatory statements.  The 8MC members attending the meeting unanimously resolved to consult lawyers on this matter.

78.  According to Lam’s evidence, the Manager had said that they would consult lawyers in respect of the publication of the Poster.  Lam and the MC members had a meal together shortly before the Letter was drafted.  They were dissatisfied by the fact no legal advice had yet been obtained.  This was apparently corroborated by the minutes of the 7^th meeting of the MC held on 3 October 2013 which made no reference to legal advice having been obtained[60].  Lam said that the publication of the Poster had generated immense confusion amongst the residents.  Some talked to MC members raising their concerns about the statements made in the Poster.  Lam and the MC members thus decided at the said meal gathering that they had to come up with a reply in response to the Poster.  There were discussions onwhat to the included in the reply.  Lam later reduced those discussions intothe draft of the Letter.  Lam however admitted that he did not circulate the draft amongst MC members before he published the Letter.  Lam said that the MC members did not object to the contents of the letter even after they had received it.  This was disputed by Lau.

79.  In the Re‑Amended Statement of Claim, the plaintiff did not specify which of the defendants participated in the publication of the Letter and upon what factual basis.  Paragraph 5 merely pleaded the fact that the Letter was issued by the MC[61]. In the Re‑Re‑Amended Defence and Counterclaim[62], it was specifically averred that the 11^th defendant should not be made a party to these proceedings because its representative at the MC have never attended any meeting of the MC and was not involved in the publication of the Letter.  The plaintiff put the 11^th defendant to proof by way of an implied joinder.  On the other hand, the plaintiff specifically pleaded to the situation of the 9^th defendant and a confirmatory statement he provided on 25 April 2014[63].  By that statement, the 9^th defendant confirmed, inter alia, that he had not been invited to participate in any discussion before the Letter was published.  He also confirmed that he disapproved and disagreed with the contents of the Letter.  As I have mentioned in paragraph 3 above, the plaintiff’s claim against the 9^th defendant was later withdrawn.

80.  The position of the 7^th defendant is also in dispute.  According to the evidence of Lau, about one week after the publication of the Letter, the 7^th and 9^th defendants signed an objection letter dated 3 October 2013[64]. This objection letter was addressed to Lam.  The original author of this letter was the 9^th defendant. He questioned who represented the MC in issuing the Letter.  He also expressed his disagreement to the incident.  Then at the bottom left of this letter, the 7^th defendant wrote that he was in agreement with the 9^th defendant and signed his name.  Based on this letter, both the 7^th and 9^th defendants impliedly asserted that they had no participation in the publication of the Letter.  When Lau was cross‑examined about this letter, he said he accepted what the 7^th defendant said in this letter.  Then in re‑examination, Lau said the 9^th defendant was willing to provide a signed confirmation[65] but the 7^th defendant was not, he therefore continues to sue the 7^th defendant as he was a MC member.  Mr Lam then asked Lau what he meant when he gave his answer in cross‑examination.  Lau said he meant “at this page [C/167], he [7^th defendant] said he did not participate”.  Mr Lam then asked: “After he [7^th defendant] refused to sign C/178, you still accept he did not participate”.  Lau answered: “of course not”.

81.  I do not accept Lau’s qualification given in re‑examination as genuine.  He was clearly asked in cross‑examination whether he accepted what the 7^th defendant stated in C/167.  He was not asked what he saw or understood as being stated by the 7^th defendant in C/167.  In any event, I accept Mr D’Souza’s submission that the plaintiff bears the burden of proving that the 7^th defendant had participated in the publication of the Letter.  The plaintiff has put forward no such evidence.  On the contrary, the plaintiff adduced and relied on C/167.  Counsel for the plaintiff did not suggest to Lam in cross‑examination that the 7^th defendant was present at the meal gathering or had in any way participated in the publication of the Letter.  In the circumstances, I find that the plaintiff has failed to discharge the burden of proving that the 7^th defendant participated in the publication of the Letter.  The plaintiff’s claim against the 7^th defendant is therefore dismissed.

82.  I also find that the plaintiff has failed to discharge the burden of proof in respect of the 11^th defendant. Lam gave evidence that the representative of 11^th defendant never attended any of the MC meetings.  When Lam gave evidence about the meal gathering, he did not mention the representative of the 11^th defendant being present.  Counsel for the plaintiffdid not challenge Lam’s evidence.  There is simply no evidence to suggest that the 11^th defendant had participated in any way in the publication of the Letter.  I accordingly dismiss the plaintiff’s claim against the 11^th defendant.

83.  As for the 1^st to 6^th, 8^th and 10^th defendants, I find that the plaintiff has discharged the burden of proof.  Firstly, the Letter was issued in the name of the MC and there was no averment in the Re‑Re‑Amended Defence and Counterclaim that these defendants did not participate in the publication of the Letter.  Secondly, when Lam gave evidence about the meal gathering and the discussions with MC members about the contents oftheir intended reply to the Poster, Lam did not suggest that these defendants were not amongst those MC members.  Mr D’Souza did not seek clarification from Lam either.  Thirdly, Lam also said he did not receive objections from MC members after publication of the Letter.  Although Lam’s evidence should be qualified in so far as the 7^th and 9^th defendants are concerned, there is no evidence to suggest that the 2^nd to 6^th, 8^th and 10^th defendants had ever expressed disagreement with the contents or publication of the Letter.  Lastly, Mr D’Souza did not submit in his Closing that the plaintiff has failed to discharge his burden of proof in relation to the 2^nd to 6^th, 8^th and 10^th defendants.  In the circumstances, I find on balance of probability that the 1^st to 6^th, 8^th and 10^th defendants did participate in the publication of the Letter.  I will from now on collectively refer the 1^st to 6^th, 8^th and 10^th defendants as “the remaining defendants”.

Defamatory meanings of the Letter

84.  First of all, it has been admitted by the remaining defendants that the Letter did refer to Lau.  The plaintiff’s case is that the ordinary and natural meanings of the statements contained in the Letter were as follows[66]:

(1)   Lau was an unscrupulous person who has defamed other members of the MC by putting up posters within the Estate, for the purpose of paving his road to become chairman of the MC and to introduce the Hong Kong Federation of Trade Unions to the Estate;

(2)   Lau has wrongfully threatened other owners not to stand as candidates of the election of MC;

(3)   Lau had an ulterior purpose or secret agenda in joining the MC.  Further or alternatively, he did not intend to serve the residents of the Estate.  Further or alternatively, he aimed at obtaining funding from the MC for holding opera activities organized by him or organization related to him.  Further or alternatively, Lau resigned because the MC’s refusal of his request to obtain fund of HK$20,000.00 for him to organize Cantonese opera activity;

(4)   the resignation of the good security guard who had served Block 5 of Aldrich Garden for more than 5 years was due to the pressure unreasonably put by Lau in wrongfully threatening the security guard not to obstruct him in delivering leaflets;

(5)   Lau has demanded or induced Lam not to stand as candidate at the 2011 District Council election;

(6)   Lau has collected personal data of certain owners without their consent or knowledge; and

(7)   Lau was a selfish person.  Further or alternatively, he did not care the interest of the residents of the Estate but only care for his personal interests.  Further or alternatively, Lau has made arrangement of gatherings in the estate for outside organizations and non‑residents, thereby sabotaging the wish for years of the Estate residents for peaceful environment.

85.  According to the remaining defendants’ case, the Letter meant and were understood to mean that:

(1)   Lau has put up posters around the Estate, contents of which involved abusing members of the MC for being ‘prodigal’ and ‘furtive’ and ‘operating in a black box’[67];

(2)   the MC considered that Lau, by putting up the Poster, intended to pave the way to become the next chairman of the MC and for his political party ‘Hong Kong Federation of Trade Unions’ to station in the Estate[68];

(3)   Lau’s purpose of putting up the Poster was to deter the other owners in the Estate from participating in the election of the MC, the MC hopes that no resident was to feel intimidated by the above action and residents of the Estate are encouraged to participate in election and voting of the MC[69];

(4)   Lau had once resigned because of the MC’s refusal of his request to grant him funding of HK$20,000 for him to organize Cantonese opera events[70];

(5)   before last year’s election, Lau and his fellow party member Au Yeung Kin Bo had forcibly distributed their election leaflets from door to door, and even intimidated a security guard into not stopping them; in the end a good member of the security staff at Block 5 of the Estate who had served for more than five years could not stand the pressure and resigned[71];

(6)   in 2011, Lau requested Lam to withdraw from the District Council Election and let himself run[72];

(7)   the residents complained that Lau had collected without the residents’ knowledge the information on their flats and had visited them, and the residents involved expressed great dissatisfaction and deep concern[73]; and

(8)   Lau has no regards to the interest of the community as a wholeand is mindful of personal interest, and so arranged for external organizations and non‑residents to gather in the Estate, and for his political party to carry on promotional activities inside the Estate, thereby disturbing the continual wish of the Estate residents for a peaceful living environment[74].

Discussion on defamatory meanings

86.  Plaintiff’s meanings set out in paragraph 84(1) and (2) and defendants’ meanings set out in paragraph 85(1) to (3) were derived from the 1^st paragraph of the Letter.  I agree with Mr D’Souza that the words used were “辱罵” and plaintiff’s description of “defamed” is incorrect.  I also agree that the abuse was directed at “各委員”.  Since Lau was not a member of the MC at the material time, the description of “other members of the MC” in plaintiff’s formulation was wrong.  The abuse was directed at all MC members.  Furthermore, plaintiff’s formulation missed out the details of the abuse contained in the Poster.  As for the purpose behind publishing the Poster, the only material difference between the parties is that the plaintiff’s formulation suggested “actual threatening” and the defendants’ formulation suggested “a motive to deter and the hope that residents would not feel threatened”. I note that in describing the intention of Lau, the actual word used was “目的在阻嚇” instead of “目的在恐嚇”.  Further the words “恐嚇” were only used in the context of a consequence that the defendants hoped Lau’s action would not result in.  I therefore agree with the defendants’ formulation which I find that hypothetical reasonable readers would more likely understand the 1^st paragraph of the Letter in that way.  I find that the 1^st paragraph of the Poster bore, in its ordinary and natural meaning, those meanings set out in paragraph 85(1) to (3) above with only one slight qualification.  Under the meaning set out in paragraph 85(1), the defendants used the words “around the Estate”.  In fact, the corresponding Chinese phrase in the Poster was “於屋苑週邊廣貼大字報”.  Therefore, the statement was referring to putting up the Poster “in the surrounding vicinity outside the Estate”.  I would also point out that the meaning set outin paragraph 85(2) was preceded by the words “the MC considered”.  This was taken from the Chinese phrase “業主委員會認為”.  The imputation of Lau’s motive in publishing the Poster was put forward as an opinion or inference of the MC.  This will be highly relevant to the defence of Honest Comment.

87.  Plaintiff’s meanings set out in paragraph 84(3) to (6) and defendants’ meanings set out in paragraph 85(4) to (7) were derived from the 2^nd paragraph of the Letter.  In my view, this paragraph of the Letter would be understood by hypothetical reasonable readers as setting out historical events involving Lau.  Readers were likely to understand these factual renderings of events in their literal sense.  I find that the defendants’ formulation accords more with the literal reading of the 2^nd paragraph of the Letter.  I find that the 2^nd paragraph of the Poster bore, in its natural and ordinary meaning, those meanings set out in paragraph 85(4) to (7).

88.  Finally, plaintiff’s meaning set out in paragraph 84(7) and defendants’ meaning set out in paragraph 85(8) were derived from the 3^rd paragraph of the Letter.  In my view, there is no material difference between the two formulations.  I find that the defendants’ formulation is more in line with the wordings and presentation of the 3^rd paragraph of the Letter.  I find that the 3^rd paragraph of the Letter bore, in its natural and ordinary meaning, the meaning set out in paragraph 85(8) above.

89.  Mr D’Souza submitted that the ordinary and natural meanings set out in paragraph 85(1) to (3) were not defamatory.  I disagree.  The Letter described the contents of Lau’s Poster as “辱罵” which literally means “to insult or to abuse”.  To say that Lau insulted/abused MC members already has the tendency of lowering Lau’s estimate in the eyes of others.  Further, to impute a personal/political motive or agenda behind the act of insult/abuse and to deter residents from exercising their election rights must be defamatory.

90.  In relation to the meaning set out in paragraph 85(4), Mr D’Souza submitted that it is not defamatory to say that Lau had once resigned from his MC membership because his proposal or request had been rejected.  He submitted that it was a neutral statement.  Mr Lam for the plaintiff did not raise contrary argument in his Opening or Closing on this point.  I agree with Mr D’Souza.  In my view, no right‑thinking member of the public would think lower of a person simply because it is said that he resigned from his post after his proposal was rejected.  The same would apply to the meaning set out in paragraph 85(6).  It is not in my view defamatory to say that Lau requested Lam not to run for the District Council Election and let himself run instead.  Such a request could arise out of many different innocuous reasons such as who stood a better chance of success at the material time.  There is no reason to find that reasonable readers were likely to understand this statement in a particular defamatory sense.

91.  In relation to the meaning set out in paragraph 85(5), it is clearly defamatory.  The words “強行” carried the imputation that Lau and Au Yeung were acting in defiance of prohibition.  The suggestion that they intimidated the security guard was unarguably defamatory.  The further suggestion that their action resulted in the loss of a good security staff member also had the tendency of lowering Lau’s estimation in the eyes of others.

92.  I also reject Mr D’Souza’s argument that the meaning set out in paragraph 85(7) is not defamatory.  Hypothetical reasonable readers wouldin my view regard collecting one’s personal data without his/her knowledgeor consent as improper conduct.  Visiting residents against their will would also be improper or at least unwelcoming conduct.  The Letter actually stated that the residents expressed great dissatisfaction and deep concern.  The fact that the Letter stated that those were the complaints received from residents does not mean that the Letter carried no defamatory imputation.  This is the repetition rule.

93.  The meaning set out in paragraph 85(8) is in my view unarguably defamatory.  The act of Lau in question was said to involve arranging external organizations and non‑residents to gather in the Estate.  The Letter set out one undesirable consequence of such act, ie disturbing residents’ wish for peaceful enjoyment.  It also set out one undesirable character of Lau which was the said to be the cause for his conduct, ie Lau being mindful only of his personal interest and had no regards to community interest as a whole.

DEFENCES

The paragraph 85(1) meaning

94.  The main defence put forward is Justification.  Mr D’Souza submitted that the meaning set out in paragraph 85(1) was factually true since Lau had admitted publishing the Poster in the manner set out in paragraph 9 above.  I have already found that the Poster constituted a libel against members of the MC.  Based on my analysis in paragraphs 25 to 32 above, I further find that the Poster did amount to insult/abuse “辱罵”.  I find thatthe paragraph 85(1) meaning was true in substance and in fact.  The defence of Justification succeeds on this defamatory meaning.

The paragraphs 85(2) and (3) meanings

95.  The sting of this defamatory meaning lies in the imputation of “political” motives behind the posting of the Poster defaming the current MC.  Two motives were imputed:

(1)   Lau intended to pave way to become the next chairman of MC and for HKFTU to station in the Estate; and

(2)   Lau intended to deter other owners from participating in the MC election.

96.  The main defence put forward is Honest Comment.  Imputation of motives was preceded with the words “業主委員會認為”.  It was thus expressed to be an opinion/inference and hence in the nature of a comment.  Mr Lam accepted that.  At the plaintiff’s opening, Mr Lam did not accept that the comment was on matter of public interest.  However, in his closingsubmissions, he conceded that the comment was on a matter of public interest.  The pleaded factual basis of the comment were as follows[75]:

(1)   residents in the Estate were prohibited from posting and any comments, views, or opinions in relation to individual members of the Committee around the area of the Estate without prior authorization or consent of the Manager;

(2)   Lau did put up the Poster and no authorization or consent was obtained from the Manager;

(3)   Lau has on occasions expressly claimed himself as Chairman of the MC;

(4)   Lau is an active member of “愛蝶聯誼會” which bears striking resemblance with “愛蝶灣業委會” (the Chinese name of the MC) and Lau has been carrying out activities within the area of the Estate in the name of “愛蝶聯誼會” which is capable of causing confusion to residents of the Estate;

(5)   Lau had on numerous occasions, without prior consent or authorization, arranged outside organizations and non‑residents and non‑owners to enter into the Estate to gather;

(6)   Lau allowed his political party members, namely the Hong Kong Federation of Trade Unions (“HKFTU”), ie “工聯會”, to enter into the Estate to make propaganda.  Most of the aforesaid activities occurred in early mornings at the material times of the dispute.  Thus it caused undue and unnecessary disturbances to residents, hence infringing the right of owners and residents to enjoy peaceful and quiet environment in the Estate.  Further, such gatherings and activities were organized without prior consent or authorization, hence this gave rise to some potential safety issues which were great concerns of the owners and residents of the Estate;

(7)   Lau is and at all material times also a member of the Motor Transport Workers General Union “交通總會” (“MTWGU”) which is a member union of HKFTU;

(8)   HKFTU is a political organization which stipulates its mission as“to safeguard labor rights and fight for welfare of employees” in Hong Kong; and

(9)   no owners or residents have the authority to, without consent orauthorization, allow any political party to enter into the Estate, being a private place, to gather or make propaganda.

97.  According to his pleaded case[76], Lau is an ordinary member of HKFTU.  It is not in dispute that HKFTU is a political organization.  It is the defendants’ case that Lau is also a member of MTWGU.  After a few confusing answers in cross‑examination, Lau eventually admitted that he was and is a member of both MTWGU and HKFTU.  Lau also admitted having membership cards of both unions.  He also admitted that MTWGU is a subsidiary union of HKFTU.  Lau also established a number of organizations:

(1)   in 2004, Lau founded the Enjoy Everyone Group “眾樂樂社” to organize musical events including Chinese Opera to the community;

(2)   in 2010, Lau founded the Wonderful Riddle “耆趣謎會” to promote riddles and the standard of Chinese language of the community; and

(3)   on 28 July 2011, Lau founded “愛蝶聯誼會”[77] to organize outing for the elders of the Estate.

98.  It is not in dispute that Lau run for the election of committee members of the 12^th MC in October 2012. Lau lost in the election.  Yet, Lau and Lam were previously in the same camp and they both won at the election for the 10^th MC in October 2010.  Lam became the Chairman and Lau became the Vice‑Chairman of the 10^th MC. Lau and Lam fell apart in or around mid‑2011 and Lau resigned from his post of Vice‑chairman.  Thereafter, Lau continued to organize activities under the names of “眾樂樂社”, “耆趣謎會” and “愛蝶聯誼會”.

99.  I have been referred to a number of posters put up by Lau in relation to the activities he organized[78].  In some of the posters, a prominent logo of “愛蝶聯誼會” was depicted[79].  I find that the name “愛蝶聯誼會” does not bear striking resemblance with “愛蝶灣業委會”.  I do not find that the activities arranged by Lau and organized in the name of “愛蝶聯誼會” were likely to cause confusion amongst residents.

100.  In relation to the putting up of posters within the boundary of the Estate, the defendants rely on the evidence of Choi (DW2) which I havebriefly mentioned in paragraph 72 above.  Choi said that on many occasions, Lau had arranged activities in the names of “眾樂樂社”, “愛蝶聯誼會” and HKFTU by posting up advertisements on the walls of many buildings within the Estate.  In the course of cross‑examination, Choi said that photographs were taken in respect of advertisements posted by Lau on building walls inside the Estate.  Choi pointed to C/198 as one of those photographs.  It was not clear on this photograph as to whether the advertisement was posted inside or outside the parameters of the Estate.  In re‑examination, Choi was able to point to D2/613 as the original photograph taken in respect of C/198.  Choi said that the bottom part of this photograph showed a plaque which he recognized as a plaque that the Manager placed inside the Estate.  Choi said he was sure that the advertisements depicted in D2/613 was posted at several locations within the Estate.  I find that Choi is a credible witness and I accept his evidence.  Choi said that it was the Manager’s duty to remove advertisements from thewalls of the buildings in the Estate in accordance with the relevant provisionsin the DMC.  He said that Lau had not obtained the Manager’s consent before posting up such advertisements within the Estate.  In relation to the Poster, however, Choi merely said that it was found exhibited near a bus stop which is near to one of the main entrances of the Estate and was seen distributed to residents and non‑residents near and around the Estate[80]. First of all, provisions of the DMC could not have any effect of preventing Lau from putting up or distributing the Poster provided that he did so outside the boundary of the Estate.  Secondly, since Lau was indisputably posting up and distributing the Poster outside the boundary of the Estate, he needed no authorization or consent from the Manager.

101.  It is however true that Lau had at least on one occasion claimed to have been the Chairman of the MC.  Lau denied that in his witness statement[81]. Lau was confronted in cross‑examination with proxy forms which Lau admittedly sent to residents for the 2012 October MC election[82]. Lau admitted sending over 100 sheets of these proxy forms to residents.  These proxy forms bore a handwritten note of Lau describing himself as former chairman “前任主席”.  Lau initially tried to explain such description as a negligent mistake on his part.  Lau was then confronted with the differences in the handwritten notes as shown in D2/592A – D.  Eventually,Lau admitted that the handwritten note on each proxy form was individually handwritten by him, i.e. not photocopied.  In each of these notes, he described himself as former Chairman.  I do not accept his explanation that it arose out of “negligence”.  Lau would have repeatedly made over 100 “negligent mistakes” if his evidence were truthful.  This is plainly implausible and absurd.  I reject his evidence in this regard and find that Lau did at least on that occasion misrepresented to residents that he was a former Chairman of the MC.

102.  As to the allegation that Lau had previously arranged outside organizations and non‑residents and non‑owners to enter into the Estate to gather, the defendants are referring to the events organized by “眾樂樂社” and “愛蝶聯誼會” either by themselves or in conjunction with HKFTU and “慈惠婦女會”.  It can be seen from some of the advertisement posters mentioned in paragraph 99 above that Lau used the roundabout area of the Estate as the meeting place for his events[83]. Lau admitted in cross-examination that participants of his events were asked to gather at theroundabout where they would board vehicles.  Lau also admitted that these participants would not be confined to residents of the Estate.  According to Choi’s evidence, an advertisement at D2/613 gave rise to a Notice issued by the Manager dated 28 November 2012[84].  The Notice was issued after the incident was brought to the attention of the MC.  The 1^st meeting of the 12^th MC held on 22 November 2012[85]discussed about this problem.  The MC agreed with the Manager’s observation that Lau’s arrangement would seriously affect the security and convenience of residents.  The Notice of the Manager was thus issued.  Lau however did not stop his arrangement after the publication of the Notice.  Choi referred to another advertisement relating to an activity jointly arranged by HKFTU and “愛蝶聯誼會” which was posted up in June 2013[86].  This gave rise to another protest by the Manager in form of a letter to all residents dated 22 June 2013[87].  In this letter, the Manager again stressed the problems that might be generated by Lau’s unauthorized activities.  In particular, security issues; nuisance at early hours of the morning; and cleanliness of the environment.  Lau admitted in cross‑examination that there were two occasions on which he arranged the roundabout as the pickup location without obtaining prior permission of the Manager.  Lau admitted that he subsequently changed the meeting place for his events after the Manager’s complaint.  In fact, from the contemporaneous documents, it seems that Lau only changed his arrangement after repeated complaints from the Manager.

103.  In relation to the allegation that Lau had allowed HKFTU to enter into the Estate to make propaganda, the parties are in keen dispute.  According to Lau, he never had political affiliation or ambition.  He never planned or took step to pave the way for political parties to penetrate into the Estate.  According to the evidence of Choi, the MC had as early as 2001 resolved that it would only allow non‑profit making organizations and commercial organizations that agreed to pay fees to the IO to carry out propaganda activities inside the Estate.  In or about 2006, the Manager published a Notice[88] stating that no political and religious organization would be allowed to carry out propaganda or organize activities inside the Estate.  According to Choi, incidents happened in early March 2013 which gave rise to a Notice from the Manger to all residents dated 8 March 2013[89].  This Notice referred to the fact that in recent days, some persons (claiming to be members of a political party) entered each block of the Estate to distribute pamphlets and publications and conducted what was described as “洗樓” activities.  “洗樓” is a colloquial term referring to political party membersor their assistants paying door‑to‑door visits to residents of a building with a view to lobbying their support.  There were two attachments to this Notice.  Attachment 1 [90] was a redacted version of a letter [91] issued with the participation of Lau.  It was not denied by Lau that he had distributed this letter to residents although he would not agree to the description of his activity as “洗樓”.  I set out the contents of this letter:

「 6座1樓B室業主

您好！在2012年的業委選舉，多謝閣下支持。我們趁新春期間向您拜年和謝票！

祝您身體健康、萬事勝意！

本會將會在今年舉辦更多活動。例如：旅行、晩會、敬老、興趣班等。籍此聯絡本屋邨居民，達致團結互助精神，為搞好家園努力。閣下如有興趣參加上述活動，請致電第五座4B劉燎輝96546717聯絡。

多辦活動多歡樂添個好友添和諧

交通總會東區、柴灣聯絡組

(愛蝶灣業委) 何志強莊响群同致意

(愛蝶灣聯誼會) 劉燎輝歐陽見寶

葵已新春

(signature of歐陽見寶and a chop of 陳智君)                            」

104.  The first paragraph of the letter showed that one of its purposes was to thank supporters during the 2012 MC election “謝票”.  The 3^rd paragraph referred to “本會”.  It was not entirely clear as to what “本會” referred to.  Yet when one looks at the signatory portion, the organization first mentioned was MTWGU.  It was then followed by the names of the7^th and 9^th defendants and they were designated as MC members.  Lau’s name and his organization “愛蝶聯誼會” appeared last on the list.  Further, Lau wrongly described it as “愛蝶灣聯誼會”.  The letter gave a clear impression that MTWGU, the 7^th and 9^th defendants, Lau and his organization “愛蝶聯誼會” were all related, connected or in some form of collaboration.

105.  Lau was cross‑examined extensively on this letter.  Lau admitted that this letter was issued by him and put into letter boxes to gratify residents’ support according to the votes he received at the election.  Lau said that “本會” was a reference to “愛蝶聯誼會”.  When asked as to whether all persons signed were related to MTWGU, Lau said that he was not and he did not know about the others.  Lau even denied knowledge that MTWGU was a subsidiary union of HKFTU.  Although the name “歐陽見寶” appeared next to Lau’s name under the designation of “愛蝶聯誼會”, Lau said that Mr Au Yeung was not a member of “愛蝶聯誼會”.  When Mr D’Souza put to Lau that the contents of the letter suggested that MTWGU were involved in the MC election, Lau said: “Apart from me, they were of that association, I do not know their identity.”  Lau’s answer was incomprehensible.  He was then pressed for an explanation as to why MTWGU would be interested in participating in Lau’s thanking of his voters, Lau said: “Perhaps, 何志強; 莊响群and 歐陽見寶might be members of MTWGU, I really don’t know.”  Then when the court asked Lau whether he personally had any connection with MTWGU, Lau suddenly admitted that he was a member of MTWGU and that MTWGU was a subsidiary union of HKFTU.  He even admitted having membership cards of both MTWGU and HKFTU.  Lau was then asked about a chop bearing the name “陳智君” next to the signature of 歐陽見寶.  Lau said that madam 陳智君 was senile and 歐陽見寶 is her son.  In fact, Lau; 歐陽見寶; 何志強 and莊响群together stood for MC election.  When asked again as to why MTWGU would be interested in participating in their thanking ofvoters, Lau said: “I did not see any problem about that.”  I find Lau evasive. 

106.  Lau was then cross‑examined on the Manager’s Notice dated 8 March 2013[92].  Lau admitted that the Notice was posted on the Manager’s notice board together with the two attachments.  Attachment 1 was a copy of the abovementioned letter with names redacted. Attachment 2[93] was a copy of the Manager’s letter sent to HKFTU dated 4 March 2013 with names redacted.  The Manager’s letter referred to the Estate’s prohibition of propaganda activities for political parties.  It then referred, inter alia, to the incident whereby Lau and Mr Au Yeung claimed to be members of HKFTU and distributed publications of HKFTU and letters bearing references to MTWGU to residents of each block of the Estate.  The Manager then required HKFTU to clarify whether it had arranged Lau and Mr Au Yeung to carry out such activities.  HKFTU replied by a letter dated26 March 2013.  HKFTU confirmed that Lau was a member and volunteerof MTWGU which was a subsidiary of HKFTU.  It described Lau as a zealous union volunteer who was then paying visits to union members.  When asked about this letter from HKFTU, Lau said: “On that occasion, I had visited members of MTWGU.”  When asked for clarification by this court, Lau said that he was not visiting members of MTWGU in the Estate but instead visited members of the union at Shaukiwan Centre.  Lau’s evidence was thus different from what the HKFTU letter suggested.  Lau however admitted inserting magazines of HKFTU into letter boxes of Block 5 of the Estate.

107.  It transpired that the incident in March 2013 was not the first occasion that Lau had carried out similar activities.  Lau was confronted with a contemporaneous “Reminder 內部事項跟進” dated 25 November 2012[94].  It was a report submitted by a security guard to Choi in relation to an incident happened on 24 November 2012.  This report recorded that evening, Lau purported to visit a friend living in Flat 34A of Block 6 and gained access to Block 6.  The security discovered that Lau appeared on 15/F instead.  When the security guard reached 15/F armed with a digital camera, Lau could no longer be found.  The security guard however discovered that leaflets had been inserted to the iron grills of many units.  He took photographs and then removed those leaflets.  He then went through all floors and removed all such leaflets.  Lau was cross‑examined on this incident.  Lau said he recalled that incident.  He explained that the security guards would not allow him to insert pamphlets into mailboxes so he went up to place those pamphlets at the doors of his supporters, namely those who had supported him at the last election in October 2012.  Lau admitted that he knew security guards would not allow him to do so therefore he told them that he was visiting a friend at Flat 34A.  Then Lau admitted knowing of the prohibition because of an even earlier incident in October 2012 when he tried to insert pamphlets into mailboxes in Block 5 which developed into a quarrel with a security guard named “容姐”.  Lau admitted that “容姐” stopped him from inserting proxy forms into mailboxes.  However Lau denied having exchanged rough words with “容姐”. He said he explained to “容姐” that it was unfair to him as Lam was allowed to insert Exhibit P4 into mailboxes.  When “容姐” continued to stop him, Lau admitted that he was a bit angry. Lau however denied having threatened “容姐”.  However, Lau admitted that after this incident, the Manager became more careful in dealing with him and his activities in the Estate.

108.  I will have to come back to this incident about “容姐” in due course.  At this juncture, to continue with the chronology of event, I should mention another “Reminder 內部事項跟進” dated 1 December 2012[95].  This report recorded another incident on 1 December 2015 when Lau purported to visit a friend living in Flat 16E of Block 1.  As a result, the security guard discovered pamphlets inserted at the iron grills of Flats 16E, 8B and 1B of Block 1.

109.  In conclusion, I find that there are ample evidence to establish that Lau did assist MTWGU and HKFTU in carrying out propaganda activities in the Estate.  These propaganda activities included those events that “愛蝶聯誼會” jointly organized with HKFTU as mentioned in paragraph 102 above.  It is not in dispute that those events frequently involved meeting at the roundabout early in the morning.  They also involve participants living in the vicinity.  Residents of the Estate have every right to expect that their quiet enjoyment of the Estate should not be unduly disturbed by outsiders.  This was particularly the case when these events were not arranged with the prior permission of the Manager.  Residents have every right to expect that affairs of the Estate would be orderly maintained.  I agree with Choi that those events would involve potential safety and security issues.  In the circumstances, I find that the factual basis set out in paragraph 96(5) to (9) have been established as being true facts.

110.  To sum up, I have found the factual basis set out in paragraph 96(3) and (5) to (9) established.  By reason of the provisions of section 27 of the Defamation Ordinance, I have to ask this question: havingregard to these facts which I have found to be true, was the alleged comment nonetheless a fair comment?  In other words, the question is: Is the comment on Lau’s motives in publishing the Poster one which could have been made by an honest person basing on those facts?  I have to apply an objective test to this question.

111.  The Letter began with making reference to the attacks and abuses made by Lau in the Poster.  The general tenor of the Poster was an attack on the competence, integrity and transparency of the MC.  In particular, it accused the MC of using public funds not for the interest of owners/residents but with an ulterior motive of cultivating favours with the owners/residents.  In my view, given the factual basis that I have found to be proven, an honest person in the position of the MC could certainly form the opinion/view/inference that through publishing the Poster, Lau was intending to pave way to become the next chairman of the MC and for HKFTU to station in the Estate.  An honest person may further infer that through attacking the integrity of the current MC, Lau was seeking to either influence or put pressure on potential candidates or voters in the coming election.  An honest person may also form the view when faced with keen public controversy, some owners may feel disgusted or annoyed and thereby lose interest in participating in the coming election whilst other owners may feel threatened and avoid taking sides.  Although one may not necessarily form the opinion/view/inference that Lau was intending to deter other owners from participating in the MC election, I am unable to find that it was a view that no honest person could genuinely form.  Accordingly, I find that the defendants have crossed the objective hurdle for the defence of Honest Comment in relation to the defamatory meaning set out in paragraph 85(3).

The paragraph 85(4) meaning

112.  I have found that this meaning is not defamatory.  Strictly speaking, I do not need to deal with the defence of Justification put forward for this meaning[96]. However, this factual assertion was contained in the Letter the truth of which may be relevant to the defence of Qualified Privilege.  I shall therefore proceed to make findings on the disputed evidence.

113.  Choi’s evidence was that when Lau was a member of the 2^nd MC, he requested the then MC for funding for him to organize a Cantonese opera in the Estate.  Lau’s request was rejected by the MC.  Since the rejection of his request, Lau did not attend further meetings of the MC and resigned shortly thereafter[97].In cross‑examination, Choi confirmed that he attended every MC meeting since the establishment of the 1^st MC.  Choi said his impression was that Lau made that request during an MC meeting.  Choi recalled that he was present when Lau made the request.  Choi’s evidence was thus based on his personal knowledge.

114.  Lam also gave evidence about this incident[98]. His evidence was however not based on his personal knowledge.  Lam said that during a dinner in September 2013 with most of the MC members, they were discussing matters relating to Lau’s Poster.  The 8^th defendant mentioned during the discussion that Lau had requested the MC to sponsor HK$20,000 for his opera activity but the MC members disagreed.  Lam said that he later sought confirmation from a then member of the 2^nd MC, Madam Chan.  Lam also bumped into another person Mr Kwok who was a resident and active in the Estate’s affairs and who had attended meetings of the 2^nd MC.  Lam asked Mr Kwok about incident.  Kwok said that he had also heard about it.  Lam further said that someone the identify of whom he could not recall said: “back then we refused to give him [Lau] $20,000, then he said he would not be coming next time”.  Lam thus believed what he wrote in the Letter was correct.  When asked whether Lau’s requested was recorded in MC meeting minutes, Lam in my view prevaricated and suggested that someone mentioned that Lau’s request was made prior to an MC meeting.  Neither Madam Chan nor Mr Kwok were asked to give evidence on this issue.  The evidence of Lam was hearsay or even multiple hearsay.  I place no weight on Lam’s evidence on this issue.

115.  Lau said that he did not request and had never requested the MC or anyone to subsidize his Chinese opera activities.  Lau put the defendants to strict proof, in particular to adduce documentary evidence to demonstrate that he had made such a request[99]. Lau further said that he organized Chinese New Year dinners for the elderlies in 2002 and 2003.  At dinner end, he used his own funds to distribute gifts to the elderlies.  The 8^th defendant criticized such events as “personal show” for Lau’s personal purposes.  There was thus discord between him and the 8^th defendant and some members of the MC.  Lau therefore decided to resign.  He thought that his resignation might help to maintain harmony within the MC.

116.  The evidence of Choi and Lau was thus in direct conflict as to whether Lau had made the request for subsidy for his Chinese opera activity at an MC meeting.  I have set out various criticisms of Lau’s evidence on anumber of issues in this judgment.  I have distinct reservations about Lau’s credibility.  On the contrary, I find Choi to be a strict forward witness.  When he made mistakes in his witness statement, he readily acknowledged that.  He was not evasive and gave clarifications of his evidence even when such clarifications would appear to be in Lau’s favour.  I find that Choi is an objective and fair witness.  Much of his evidence was corroborated by contemporaneous documents.  It is true that on this issue, no MC minutes have been adduced as documentary support.  I have to bear that in mind.  Nonetheless, Choi had given direct evidence based on his personal knowledge and recollection.  I find Choi to be an honest and credible witness.  I preferChoi’s evidence on this issue.  Quite fairly, Choi did not say that Lau resigned as a resultof his request being rejected.  Choi only gave evidence on the objective fact that since the rejection, Lau ceased to attend MC meetings and resigned shortly thereafter. Since I have rejected Lau’s evidence on the making of request for subsidy, I have considerable doubt on his evidence as to why he resigned from the MC.  There must be some reason behind Lau ceasing to attend MC meetings and resigning shortly thereafter.  I accept Choi’s objective evidence of a temporal link between the rejection of Lau’s request and his cessation of participation and resignation.  On balance of probability, I infer that the reason for Lau’s resignation from the MC was due to his request for funding having been rejected.

The paragraph 85(5) meaning

117.  The main defence put forward is Justification.  The pleaded facts in support of justification were[100]:

(1)   Prior to the resignation of the security guard Wong Yuet Yung who had stationed at Block 5 of the Estate for 5 years and commonly referred to as “容姐”, she had expressly mentioned to Lam and numerous residents of Block 5 of the Estate that Lau had mentioned to her that he would find someone to beat her up and Lau’s said act of distributing the leaflets and his intimidation was reported to the Manager and to Lam; and

(2)   Therefore, “容姐” had been placed under pressure and thus eventually resigned from the Manager of the Estate.

118.  In order to justify the paragraph 85(5) meaning as being true in substance and in fact, the defendants have to adduce evidence to prove that on the occasion when Lau and Mr Au Yeung forcibly distributed their election leaflets, Lau had in fact intimidated “容姐”.  They also need to adduce evidence that as a result of the intimidation, “容姐” could not withstand thepressure and resigned.  It is not sufficient for the defendants to simply prove that “容姐” had made such a complaint of intimidation.  This is the rule against repetition as explained in Stern v Piper [1997] QB 123.  In that case, the defendant newspaper published an article criticising the conduct of the plaintiff by quoting from an affirmation prepared in connection with a High Court action for debt against the plaintiff.  The plaintiff sued in libel on that article.  The defendant pleaded justification on the basis that the words were substantially true and particularized the details of that affirmation.  The plaintiff applied to strike out the justification plea.  The master declinedthe application and the judge upheld his decision.  On appeal to the Court of Appeal, the appeal was allowed.  It was held that the report in the article of statements in the affirmation, being essentially hearsay, fell directly within the rule that it was no defence to an action for defamation for the defendant to prove that he was merely repeating what he had been told.

119.  In Musa King v Telegraph Group Ltd [2003] EWHC 1312 (QB), at §32, Eady J summarized a list of 10 principles regarding the defence of justification.  This list of 10 principles were quoted by the Court of Appeal with apparent approval [see Musa King v Telegraph Group Ltd [2004] EMLR 23 at §22].  I will set out these 10 principles:

“(1) There is a rule of general application in defamation (dubbed the ‘repetition rule’ by Hirst L.J. in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation—not merely the fact that the allegation has been made;

(2) More specifically, where the nature of the plea is one of ‘reasonable grounds to suspect’, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged;

(3) It is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed the claimant to be guilty;

(4) A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact‌—‌but this in no way undermines the rule that the statements (still lessbeliefs) of any individual cannot themselves serve as primary facts;

(5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant’s part that gave rise to the grounds of suspicion (the so‑called ‘conduct rule’).

(6) It was held by this court in Chase at paras [50]–[51] that this is not an absolute rule, and that for example ‘strong circumstantial evidence’ can itself contribute to reasonable grounds for suspicion.

(7) It is not permitted to rely upon post‑publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.

(8) A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue has to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).

(9) Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.

(10) A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.”

120.  At the plaintiff’s opening address, Mr Lam told me that at the PTR hearing on 29 March 2017, there was originally a summons issued by the plaintiff requiring the defendants to adduce “容姐” as witness.  Mr D’Souza told the court then that the defendants would not be relying on hearsay evidence of “容姐” but would rely on the direct evidence of Choi toprove that “容姐” had been threatened by Lau.  No order was eventually made on the summons.  The plaintiff subsequently issued a letter dated 31 March 2017 to put on record that the defendants had agreed not to rely on hearsay evidence of “容姐”.  In the end, Choi adduced evidence[101] that “容姐” did notify him in around September 2012 of a threat she received from Lau that he would find someone to beat her up.  At that time, “容姐”was, in accordance with instructions of the Manager, trying to stop Lau from distributing promotional leaflets through letter boxes in Block 5.  Choi said that eventually, as a result of this incident, “容姐” resigned from her position after working for 5 years.  Lam also gave similar evidence of talking to “容姐” and hearing her complaint[102].  In the course of final submissions, this court pointed out to Mr D’Souza that the evidence of Choi was mere hearsay evidence if the purpose of that evidence was to prove the truth of what “容姐” said.  This would be contrary to the agreement that the defendants would not rely on hearsay evidence.  Mr D’Souza accepted that the evidence of Choi is just evidence of the fact that “容姐” had made a complaint of threat but is not evidence of the truth of such complaint.  Accordingly, the attempt to use such evidence to justify the defamatory meaning set out in paragraph 85(5) is not permissible as it offends the repetition rule.  Since the allegation of threat is not proven, the allegation that “容姐” resigned as a result could not be sustained either.  In any event, Choi’s evidence of why “容姐” resigned was derived through a talk he had with “容姐”.  The reason put forward by “容姐” was again hearsay evidence if it is relied on to prove the truth of what she said.  This would again offend the agreement that the defendants would not rely on hearsay evidence.  In conclusion, I find that the defence of justification in relation to the meaning set out in paragraph 85(5) fails.

The paragraph 85(6) meaning

121.  Similarly, I have found this meaning not to be defamatory.  I proceed to making findings on this dispute of fact only because it may be relevant to the defence of Qualified Privilege.

122.  It is not in dispute that prior to some time in 2011, Lam and Lau had been on good terms.  They had joined force in running for the 10^th MC election in October 2010.  For the 10^th MC, Lam became the Chairman and Lau became the Vice‑chairman.  However some time in or around mid‑2011, they fell apart and Lau resigned from his post of Vice‑chairman.

123.  Lau’s evidence was that Lam made use of Lau’s popularity amongst residents of the Estate as a stepping stone to achieve his political ambition and affiliation.  On the other hand, Lau said that he himself had no political ambition or affiliation.  In the election for the 9^th MC, Lau was elected as a member of MC.  With Lau’s support, Madam 穆方欲芝became the Chairlady.  Lau then brought in Lam as a secretary of the MC.  At the election for the 10^th MC in 2010, Lau was re‑elected and obtained thehighest number of proxy forms in the election.  However, “upon the request and begging of Lam”, Lau agreed to support Lam to become the Chairman using the proxy forms he obtained.  After becoming the Chairman of MC, Lam told Lau that he would help Lau to run for the District Council of Eastern District.  Lau refused his request politely because he was a person with no ambition and he did not understand English.  Lam however offeredhis assistance.  Lam also suggested Lau to carry out home visits to residents to further gain popularity.  Lam initially said that he would join in those visits as well.  At the end of the day, Lam said it would be too weary for him and he did not join in the home visits.  Lau therefore decided to pay visits to residents on his own.  This lead to the incidents that I shall analyse under the paragraph 85(7) meaning hereunder.

124.  Lau continued to say that on or about 21 March 2011, Lam suddenly issued an open letter indicating that his visits to residents were improper.  This was in fact the letter I analyse under paragraph 130 hereunder. Then subsequently, in or around mid‑2011, Lam (acting through his assistance Mr Lai Man Hin “黎民憲”) even requested Lau not to run for the upcoming District Council election.  Lam said to Lau that he himself would wish to run for the District Council election instead and that Lau should give way.  As a result, Lau lost confidence in Lam and realized that he had been used by Lam.  Lau no longer wished to run for the District Council election and he also resigned from the post of Vice‑chairman of the MC.  Lau then decided to support Mr To Poon Man “杜本文” in theDistrict Council election held in the end of 2011.  Mr To eventually won the election.  In the end of 2011 after the Eastern District Council election, Lau decided to run for the MC election against.  During the counting of votes, he found that some proxy forms provided to him had disappeared.  He later found out that it was a trick played by the Manager who discreetly returned some of the proxy forms to residents to make sure that Lau would not be elected.  Furthermore, the Manager allowed Lam to distribute gifts to residents in exchange for their votes.  Lau reported the matter to ICAC.  ICAC however refused to investigate.  Seeing that there was no fair election, Lau did not run for the 12^th MC in 2013.  Yet at the end of 2013, some residents requested Lau to run for the next MC election.  Once his decision to run was announced in September 2013, the MC issued the Letter to all residents to defame him.

125.  Lam’s evidence was that in the course of promoting himself for District Council election to be held in 2011, Lau used private information of residents and owners and frequently visited residents from door to door.  This was done without the consent of the Manager and resulted in some complaints from residents and owners.  As a result, the MC issued the letter dated 21 March 2011 which I analysed in paragraph 130 hereunder.  Since around 2011, Lau held a personal grudge against Lam.  Around that time, Lau on several occasions requested Lam to withdraw from standing as a candidate for the District Council election and to allow Lau to stand instead.  Lam however agreed that it was he who encouraged Lau to stand for District Council election.  Lam said however that he never indicated that he would not run for election as well.  Lam remembered that on one ofthose occasions during the summer of 2011, Lau, Lam and another candidate Mr Cheng Hing met in Yeh Lam Kwok Restaurant in Oi Tung Shopping Centre adjacent to the Estate.  At that meeting, Lau, without any basis, demanded that Lam and Mr Cheng should withdraw from the District Council election.  Lam immediately rejected.  Lau then warned him that he had recruited numerous supporters in the Estate to support him at the election.  Lau also resigned as a member of the 10^th MC to show his dissatisfaction towards Lam’s refusal to accede to his request.

126.  In Lau’s cross‑examination, he admitted that it was after October 2010 that he wished to stand for District Board election. Lau maintained that initially he did not wish to do so and it was at the encouragement of Lam that he eventually decided to stand for election.  Lau also admitted that it was around that time he started house visits.  Lau said he did so because he was the Vice‑chairman.  I do not accept his explanation.  By that time, clearly, the MC election had completed.  The house visits were most likely conducted with a view to assisting his DistrictBoard election.  In fact, it can be seen from Lau’s handwritten note in C/320 that his door‑to‑door visits were conducted on his own volition, unrelated to anyone including the MC or its members.  Lau then said that after the issuance of C/320, ie around 21 March 2011, his relationship with Lam turned bad and he no longer attended MC meetings.  Lau however did not say exactly when did he resign from his post of Vice‑chairman.  However, Lau also admitted in cross‑examination that there was such a meeting between himself, Lam and Mr Cheng in the summer of 2011.  Therefore, this Yeh Lam Kwok meeting would have taken place at a time that Lau and Lam had fallen apart.  It was therefore perfectly plausible that the meetingwas not an amicable one about cooperation but instead about Lau demanding Lam and Mr Cheng to cease running for the District Council election.  When confronted, Lau then changed his evidence to say that the Yeh Lam Kwok meeting took place before 21 March 2011.

127.  Lau’s assertion that he had no political ambition or affiliation also sound incredible.  First of all, I have already set out the evidence abouthis political affiliations and the assistance he gave to propaganda activities ofHKFTU and MTWGU.  Secondly, it is quite clear that Lau was keen to get re‑elected to the MC.  For the election of the 12^th MC held on 19 October 2012, Lau had sent out proxy forms to owners/residents misrepresenting that he was a former Chairman[103].  On the day of the election, there was a commotion whereat Lau and his supporters accused the Manager of improperly removing/returning proxy forms given to him by owners/residents resulting in his election failure.  Lam was present and he witnessed the commotion.  Lam also said the entire process was voice‑recorded as it was in the course of an AGM.  No such recording was produced as evidence but Mr Lam did not make submission on this matter in his closing.  There were contemporaneous records about Lau’s attempts to insert leaflets at iron grills of units in the Estate in November and December 2012[104]. Lau then sent letters on or about 8 January 2013[105] to owners/residents accusing Choi of wrongdoings.  He even accused Choi of doing so with the ulterior motive of assisting other candidates[106]. Then roughly at the same time, there was circulation of an anonymous letter D1/408 to owners/residents.  In response, Lau put up posters outside but in the vicinities of the Estate[107] making serious accusations against the Manager and suggesting that there was a conspiracy against him.  In the meantime, Lau continued to carry out activities to assist his political affiliations resulting in the Notice dated 8 March 2013 and letters to all owners/residents dated 15 March 2013[108].  Lau decided to run for the 13^th MC election. Before the election, Lau put up posters accusing the Manager of tempering with proxy forms in the last election[109].  This resulted in the Manager issuing a letter dated 18 October 2013 to all owners/residents explaining that it was justified in returning the proxy to owners/residents during the 2012 election because of inconsistency of information between the proxy forms and owners’ register[110].  However, immediately after he lost the election, Lau sent letters to owners/residents[111] re‑accusing the Manager of tempering with proxy forms in the last election; accusing that the 12^th MC had defamed him by publishing the Letter; and accusing that there was a conspiracy or alliance between the Manager and the 12^th MC to pressurize or victimize him.  In my view, all these conducts of Lau seemed inconsistent with his assertion that he is a person of no political ambition.

128.  On the other hand, the evidence of Lam was not without problems.  Lam admitted in cross‑examination that Mr Cheng Hing was still his friend.  Lam also maintained that the Yeh Lam Kwok’s incident was witnessed by Mr Cheng.  When asked why Mr Cheng was not called as a witness or at least provide written confirmation to support his evidence,Lam could not provide a convincing explanation.  He simply said it did not occur to him that he should call Mr Cheng as a witness.  When asked as to why he thought that Lau resigned from MC because Lau failed to dissuade him from running for District Council election, Lam said he believed Lau considered him a hindrance.  When asked for the basis of his belief, Lam had to admit that there was no basis for his speculation.

129.  This is a situation of one man’s words against the other.  It is not easy to decide on whom to believe.  Clearly, Lam and Lau bore and still bear grudges against each other.  They were former political allies turned enemies.  In the end, I decided to place heavier weight on inherent probabilities.  I find it inherently less likely that Lam would have initially encouraged Lau to stand as a candidate for the District Council election andthen shortly afterwards asked Lau to desist.  If Lam was trying to make use of Lau’s popularity to feed his political ambition, Lam could simply lobby Lau for his support given that Lau did not intend to run for the election in the first place.  Conversely, it is more likely that after the C/320 incident, the hitherto cooperative relationship between Lau and Lam broke down. Hence at the mid‑2011 Yeh Lam Kwok meeting, Lau demanded Lam to withdraw.  Given the more educated background of Lam, it is more likely for Lau to see Lam as a hindrance than the other way round.  Furthermore, I bear in mind the other undesirable features of Lau’s evidence causing me doubts on his general credibility.  Consequently, I decide to prefer Lam’s evidence on balance of probabilities.  I find that Lau did request Lam to withdraw from the District Council election and let himself run.

The paragraph 85(7) meaning

130.  The main defence relied on is Justification.  Lam gave evidence that Lau had made use of private information of owners/residents and frequently paid visits to them.  This gave rise to complaints such that the MC needed to issue a Notice dated 21 March 2011[112] which appeared as follows:

「       有關業主委員會副主席派發信件事宜

管理處及業主委員會林主席收到多名業主的投訴，謂近日在信箱內收到由業委會劉副主席發出通知晚上將會登門家訪的紙條，據了解是劉副主席的個人行為。有關事宜並未經由業委會討論及授權下進行，管理處隨即向劉副主席就此事反映相關的意見，並勸籲其停止將通知紙條放入住戶的信箱內，避免對居民造成不必要的滋擾。特此通知，敬請留意。

另外，劉副主席其後亦藉此以親筆聲明向各業主/住戶解釋上述事宜如下：

本人劉燎輝每晚逐家逐戶探訪採集意見，是自發性，與任何人無關，特此澄清 劉燎輝

此致

愛蝶灣各業主/住戶」

131.  Lau admitted that he started visiting homes of residents of the Estate in early 2011.  Lau said he did so with residents’ consent.  He would insert a notice in the residents’ letter boxes beforehand and asked them to contact him if they did not want him to visit them[113]. Lau said that some residents would contact him and he would not visit them. Furthermore, he would obtain their consent by the telecom situated at the entrance of each block before he visited them.  Lau even said that he was welcome by all residents whom he paid visits.  He said he never received any complaint and no residents had ever suggested to him that they were displeased about the visit.

132.  In cross‑examination, Lau admitted that the box inside the Notice dated 21 March 2011 bore his handwritten note.  Lau said that after the MC/Manager complained that he had disturbed others, he was asked to write down his response to such complaints.  Lau wrote down on a piece of paper.  Thereafter, the MC/Manager copied and pasted it onto the Notice.  Lau said that after this incident, he stopped paying visits to residents.  Furthermore, he stopped attending MC meetings.  When clarification was sought from this court, Lau said that in fact, prior to this Notice dated 21 March 2011, the Manager in fact put up another notice pointing out that Lau had caused nuisance to owners/residents.  Therefore, Lau decided to write a note to clarify.  The note was written on his own initiative.  When asked as to why he wrote in that way, Lau agreed that it was because some owners/residents thought Lau was visiting them in his capacity as Vice‑chairman of the MC, hence he felt the need to explain that he paid those visits on his own self‑initiative.  It is interesting to see that Lau described his own activity as “每晚逐家逐戶探訪”.  It contradicted his own evidence that he only paid visit to those owners/residents who had consented to his visits.  Lau also admitted that the Notice dated 21 March 2011 was posted on notice board; that he saw it posted; and that he did not complain about the posting of the Notice or its contents.  In my view, there is thus ample evidence to prove that there were in fact quite a number of owners/residentscomplaining about the nuisance brought about by Lau’s visits.  These owners/‌residents felt sufficiently concern to make complaints to the Manager.  It is obvious that some owners/residents even thought that such visits were related to the MC such that Lau had to come forward to clarify that it was only his personal activity.

133.  Lau made a bare assertion that he did not collect private information of owners/residents without their knowledge “regarding his visits”[114]. He did not elaborate on whether he had kept their private informationat all.  In cross‑examination, Lau was referred to an anonymous letter[115]. Lau said that this anonymous letter was sent by post to all residents of the Estate.  Lau even produced the letter he received by post[116]. Exhibit P1 showed that it was posted on 9 January 2013.  The 3^rd and 4^th paragraphs of this letter stated that prior to the MC election, Lau knocked at the author’s door during late evening asking for a proxy.  Lau was seen possessing a book containing information about the author’s family.When asked as to why he possessed such information, Lau prevaricated but continued nagging for a proxy.  Later, the author discovered that her mother‑in‑law had attended a trip organized by Lau and he could have collected their family information.  The author then complained to the Manager about Lau’s visit and his collection of personal data.  Lau claimed that the contents of this anonymous letter were utterly untrue.  When confronted with D2/624, Lau admitted that it was a poster put up by him in response to Exhibit P1.  A photograph[117] showed that this poster was put upby Lau on 15 January 2013 on an electric box outside the No 102 bus stop.  Lau was then cross‑examined on point 7 of his poster which read:

「 十年多，我為屋邨搞旅行，晚會，活動班等是為屋邨和諧，歡樂努力，有時要參加者資料，試問幕後黑手入業委做了些什麼？」

Lau then admitted that he kept in a book information of residents who had participated in his activities.  He further admitted that in the same book, healso recorded information of residents other than those who had participated in his activities.  Lau said that he kept records of roughly 200 residents.  Lau did not say that the residents knew about this and consented.  Although the poster was clearly published in response to the allegations contained in D1/408, Lau did not say in the poster that he kept information of residents in his book with their knowledge or consent.  Information about residents who enrolled to his activities would have been provided to Lau for the purpose ofsuch activities.  That did not amount to tacit consent that Lau could continue to keep them for his other purposes or agenda.  In the circumstances, I find that Lau did collected information of residents without their knowledge and consent.  I therefore find that the defence of justification succeeds in relation to the paragraph 85(7) meaning.

The paragraph 85(8) meaning

134.  The main defence is that the words imputing that Lau has no regards to the interest of the community of residents as a whole and is mindful only of his personal interest amounted to Honest Comment. This comment was based on the factual basis that:

(i)   he arranged for external organizations and non‑residents to gather in the Estate;

(ii)   he let his political party to carry on promotional activities inside the Estate; and

(iii)   thereby disturbing the continual wish of the residents for a peaceful living environment.

135.  In the context of the Letter, I find that the words “劉先生本人並無為整體本苑居民著想、而只顧個人利益” were in the nature of comment which were clearly followed by its factual basis, namely “安排其他街外組織及非本苑居民進入本苑聚集，讓其政治團體進入本苑作出宣傳活動，破壞多年來愛蝶灣居民安居樂業的意願”. The connecting word between the two was “而” which actually meant “so”.  The words “劉先生本人並無為整體本苑居民著想、而只顧個人利益” would thus be understood as being reflected or inferred from the actions that Lau had undertaken, ie “安排其他街外組織及非本苑居民進入本苑聚集，讓其政治團體進入本苑作出宣傳活動，破壞多年來愛蝶灣居民安居樂業的意願”.  Mr Lam conceded in his closing submissions that this comment was on a matter of public interest.  I have already found in paragraphs 102 to 109 above that the aforesaid factual basis are true.  In my judgment, an honest person can form the opinion/view and/or inference that Lau is mindful only of his own personal interest rather than the overall interest of the community of residents.  I therefore find that the defendants have satisfied the objective hurdles of the defence of Honest Comment in relation to the paragraph 85(8) meaning.

Qualified privilege

136.  The defendants further argued that the Letter was published onan occasion of qualified privilege.  “Common interest privilege” and “Reply to attack” privileges are relied upon.  It is not in dispute that the Letter wasonly published to owners/residents of the Estate. In Multi‑Winner Investment Ltd, ibid at §69, the court clearly accepted that there is a common interest amongst co‑owners of a building/estate with regards to matters concerning the affairs of the building/estate.  The Letter was clearly published in response to the Poster as one can see from its caption.  Mr Lam argued that the Poster was covered by qualified privilege as Lau was seeking to draw owners’/residents’ attention to management issues in the Estate.  It is thus axiomatic that the Letter which replied to Lau’s attacks on the MC in the Posters would also be a matter of common interest between the MC and all owners/residents.  Furthermore, the Poster launched attacks on the integrity and competence of the MC.  Lau also suggested in the Poster that the MC was not acting in the interest of owners/residents.  In my judgment, a reply to the Poster questioning the motive behind its publication; questioning the integrity of the attacker with reference to a history of his activities in the Estate and his participations in management affairs of the Estate; and questioning whether the attacker was truly upholding the common good of the community are all matters of common interest between the MC and all owners/residents.

137.  Mr Lam argued that the statements in the Letter were only trivial incidents in the past and they were not outstanding issues to be resolved or dealt with.  I do not agree.  There is no principle of law (and Mr Lam hadreferred me to no authority) that qualified privilege based on common interest can only apply to communications on issues of importance or imminence.  There is only a requirement in law on relevance.  Mr Lam then argued thatstatements made in the Letter were irrelevant and went beyond the scope and latitude of the attack.  In Multi‑Winner Investment Ltd, ibid, at §80, the Court reiterated the emphasis in The Incorporated Owners of Tung Lo Courtv Tsui Wai Yip, ibid at §55 that in the case of reply to attack privilege, the reply must be “reasonable, proportionate and relevant”.  Lok J further quoted from Gatley, §§14.51 and 14.64 and the dicta of Hirst LJ in Watts v Times Newspapers Ltd [1997] QB 650, at 671C–E that:

“(i) The defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude in this respect and the law does not concern itself with niceties in such matter;

(ii) The test of relevance is not whether the statement complained of is strictly necessary for or logically relevant to the discharge of the duty or protection of the interest which is the foundation of the privilege.  One should not take the approach that the defendant is only protected in doing the ‘bare minimum’ necessary to comply with his duty.  Where the statement has any reference to the subjectmatter of the privilege, or is in any way pertinent or germane to it, it is material only as evidence of malice to take the case out of the privilege.”

Lok J further quoted the dicta of Eady J in Hamilton v Clifford [2004] EWHC 1542 (QB) at §75:

“ Where the allegations do relate to the subject matter of the original attack, privilege cannot be excluded purely on the basis of a cool and objective analysis as to logical relevance. As Lord Diplock pointed out in Horrocks v Lowe, the protection afforded by the defence of qualified privilege might prove illusory if it were to belost on the basis that the defamatory matter could be shown, uponlogical analysis, to be irrelevant to the protection of the right upon which the privilege is founded…. Therefore it will generally be appropriate for the jury to assess the relevance, or otherwise, as a factor in resolving any plea of malice.”

138.  I am of the view that the contents of the Letter did relate to the subject matter of the original attacks contained in the Poster which I have found to bear the defamatory meanings set out in paragraphs 27, 29 and 31.  In Gatley, §14.68, the learned author said:

“ Though the authorities are not completely clear, it seems to be a relevant, and indeed, sometimes necessary, means of repelling a charge to state that the person who made it should not be believed. In response to an attack one is given a considerable degree of latitude, and may go on to the offensive so long as one does not include entirely irrelevant and extraneous materials. Thus in O’Donoghue v Hussey it was held that it was a reasonable mode of defence for a person, whose conduct and character had been assailed in a public newspaper, to state publicly that his assailant was known to be a person in the habit of making misstatements.”

Furthermore, in the case of Harbour Radio Pty Ltd v Trad [2012] HCA 44 at §35, the High Court of Australia held that on the issue of whether the matter complained of is sufficiently connected to the privileged occasion to attract the defence, it may appear upon any one of several considerations.  The matter may be sufficiently connected with the “content” of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack.  Question of degree inevitably will be presented.

139.  Applying these principles, it is in my view reasonable, proportionate and relevant to question the motive behind Lau’s publication of the Poster; to question the integrity of Lau with reference to a history of his activities in the Estate and his participations in management affairs of the Estate; and to question whether Lau was truly upholding the common good of the community.

140.  In the circumstances, I find that the Letter was published on an occasion of qualified privilege. The burden is thus on the plaintiff to establish malice with a view to destroying this defence.

Malice on the part of the defendants

141.  In his opening address[118], Mr Lam summarized the plaintiff’s case of malice vis‑à‑vis the defence of Qualified Privilege as follows:

(1)   the defendants published the defamatory statements complained of knowing the same were false and/or unjustified;

(2)   the defamatory statements went beyond the scope of the original attack and that is strong evidence of malice, ie that the defendants aimed to retaliate against Lau; and

(3)   the dominant motive of the defendants’ publication of the Letter was to harass and embarrass Lau, and to attack and/or discredit his personal integrity, honesty and ethics, which served to hamper Lau and to undermine his chance of being elected as a member of MC in the future.

142.  I have rejected the defence of Justification in respect of the paragraph 85(5) meaning.  Although I rejected the defence of Justification in respect of the imputation that Lau had in fact intimidated “容姐” which resulted in her resignation, this does not mean that I have found that the defendants made such a defamatory statement knowing it to be false or reckless as to its truth or falsity.  Quite the contrary, I do accept the evidence of Choi and Lam that “容姐” had in fact complained to them about the intimidation that she received from Lau.  I also accept their evidence that one of the reasons for her resignation that she put forward was the pressure experienced as a result of that incident.  The defence of Justification failed only as a result of the application of the repetition rule.

143.  I have found that the contents of the Letter to be relevant to the attacks in the Poster.  I do not find that the defendants had exceeded the permissible scope of reply.

144.  On the issue of “improper motive”, the main argument of Mr Lam was based on the timing of the publication of the Letter.  Mr Lam pointed out that the Poster was published on or about 28 July 2013.  The Letter was only published 2 months later on 27 September 2013.  By that time, it was close to the election date for the 13^th MC in October and it was after Lau announced his intention of running for election.  According to the minutes of the 6^th meeting of the 12^th MC held on 6 August 2013[119], the MC had already resolved to seek legal advice regarding the Poster.  The next MC meeting was scheduled to be held on 3 October 2013[120]. Instead of waiting for further discussion at the 7^th meeting of the MC, they chose to publish the Letter on 27 September 2013.  Lam’s explanation in cross‑examination have been mentioned in paragraph 78 above.  Mr Lam submitted that Lam’s explanation was unreasonable.  He submitted that since the MC had waited for so long, there was no urgency in replying to the Poster on 27 September 2013.  The MC should have pressed for the legal advice instead.  The reason why the MC issued the Letter towards the end of September was because the next MC election was imminent.  The defendants were intending to adversely affect Lau’s chance of success in the coming election.

145.  Timing of the reply is relevant in distinguishing between “mere retaliation” and “legitimate reply to an attack”.  As a general observation, the longer the time between the attack and the reply, the more likely that the response will be treated as retaliation, see Gatley, §14.51.  This is however a question of fact in each case.

146.  I have carefully considered Mr Lam’s submission.  In the end, I accept the explanation offered by Lam as to why the Letter was only published on 27 September 2013.  I do not find that the timing of publication of the Letter was indicative of any improper motive on the part of the defendants.  I must also mention that in order to defeat a defence of qualified privilege, the alleged improper motive has to be proven as the dominantmotive in the publication.  At §17.7 of Gatley, the learned author wrote:

“ Mixed motives. People commonly act from a mixture of motivesand it will be impossible to attribute any precise degree of causativeeffect 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.

‘To destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have the 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.’ [quoting from Horrocks v Lowe [1975] AC 135, at 149]

‘Qualified privilege will 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’ [quoting from Horrocks v Lowe, ibid, at 151].”

I find that the plaintiff has failed to discharge the burden of proving that in publishing the Letter, the dominant motive of the defendants was to adversely affect the chance of his success in the coming MC election.

147.  In the circumstances, I find that the defendants were not actuated by malice in the publication of the Letter such that it was published on an occasion of qualified privilege.

148.  In respect of the defence of Fair Comment, the plaintiff also alleged malice on the part of the defendants. Mr Lam however appreciated that the concept of malice in relation to the defence of Fair Comment is different from the situation of Qualified Privilege.  According to Cheng & Anor v Tse Wai Chun, ibid, malice in the law of Fair Comment covers the case of a defendant who does not genuinely hold the view he expressed.  He put forward as his view something which in truth was not his view.  It was a pretense.  The burden is on the plaintiff to prove that the defendants did not honestly hold the views expressed in the paragraphs 85(3) and (8) meanings.  Mr Lam had not made any submission along this line.  His submissions in opening and closing were focus on attacking the factual basis of the comments.  I find that the plaintiff has failed to discharge the burden of proving that the defendants did not honestly hold the such views.

CONCLUSION

149.  I dismiss the plaintiff’s action against all defendants (except the 9^th defendant).  I also find for the 1^st to 8^th and the 10^th and 11^th defendants in their Counterclaim.

150.  In Mr D’Souza’s opening[121], he stated that the only relief sought by the defendants is general damages.  He referred to the factors affecting the level of award as summarized by Lok J in Multi-Winner Investment Ltd, ibid, at §110.  He submitted that the good standing of the defendants in the community is not disputed.  They all volunteered in the work of the MC and obtained enough votes from owners of the Estate to be in the MC.  In addition, Lam was the chairman of the MC at the relevant time.  He is also a full time District Councillor.  There is also evidence of awards in recognition of his public works[122].

151.  Mr D’Souza actually relied on the comparables quoted by Mr Lam in his opening[123] which are:

(1)   In Lee Ching v Lau May Ming [2007] 3 HKLRD 623, the 1^st plaintiff was a vice chairperson of a charitable organization and the 2^nd plaintiff was its secretary.  They were defamed in a letter issued to all members of the organization seriously attacking and undermining their personality, integrity and loyalty to the organization.  They were each awarded HK$200,000 in general damages.

(2)   In Poon Chi Hung William v Yuen Wai Chung HCA 387/2011 (unreported, 27 November 2012), the plaintiff was an incorporated owner’s committee member of an estate and was libeled by the chairman of the committee in a minutes of meeting.  The main defamatory imputations were that the plaintiff was unable to repay his debts and had been evading them.  This gave rise to further imputations that the plaintiff was untrustworthy, irresponsible and not suitable to act as a committee member.  The plaintiff was awarded HK$80,000 in general damages.

(3)   In Mok Kam Kwi v Lam Mo Fat HCA 1868/2010 (unreported, 6 March 2014), the plaintiff was a chairman of a Rural Committee and he was libeled by the defendant by banners facing the outside of a village.  The defamatory imputations were: (i) the plaintiff did not act in the interest of the village or the Rural Committee; (ii) he did not fulfil his duties as chairman by failing to act in the interest of the village, the Rural Committee or Shatin; (iii) he acted in the interest of a developer contrary to the interest of the village or Shatin; (iv) he was incompetent; and (v) he acted so as to obtain benefit for himself.  The plaintiff was awarded HK$400,000 in general damages.

152.  Mr D’Souza further relied on the awarded granted in Tung Lo Court, ibid and Multi-Winner Investment Ltd, ibid.  In the former case, the plaintiff was the incorporated owners.  It was attacked as being a “black” IO and behaved like a triad society thus seriously undermining the plaintiff’s integrity.  HK$200,000 was awarded as general damages.  In the latter case, although the court found for the defendant and dismissed the plaintiffs’ pleaded defamatory meanings, it proceeded to assess damages in the event that the decision would be appealed.  The pleaded defamatory meanings were: (i) the plaintiffs’ settlement offer amounted to a bribery offence under the Prevention of Bribery Ordinance; (ii) the plaintiffs seduced the management committee to breach their duties towards owners by unlawful means; and (iii) the plaintiffs were seeking to gain an advantage for themselves at the expense of other owners which involved improper motive and dishonesty on the part of the plaintiffs.  General damages for the corporate plaintiff was assessed at HK$50,000 and that for the personal plaintiff was assessed at HK$100,000.

153.  These cases serve as guidance and are not straight-jackets.  Each case has to be decided on its own facts.  In the present case, the MC members were essentially attacked on the propriety of their decision; their competence in arriving at that decision; their motive of currying favours with owners; and their lack of transparency.  Though not considered unserious, the defamatory imputations were not of very serious categories.  The Poster was published in such a manner that a substantial number of persons were likely to have read its contents.  The defendants were defamed collectively.  Although each may have slightly different personal reputation, I do not see sufficient degree of difference that justifies a disparity in treatment.  I also take into account the publication of the Letter in reply to the attacks and its probable effect of partially restoring the reputation of the MC members or at least putting such attacks to doubts.  In all the circumstances of this case, I award general damages in the sum of HK$80,000 to each of the 1^st to 8^th and 10^th defendants.  I award HK$50,000 to the 11^th defendant which is a corporation.

154.  The plaintiff’s action is dismissed with costs to the 1^st to 8^th and 10^th to 11^th defendants to be taxed (if not agreed) on party-and-party basis with certificate for one counsel.  I grant judgment in favour of the 1^st to 8^th and 10^th to 11^th defendants on their Counterclaim in the respective sums as aforesaid with costs against the plaintiff to be taxed (if not agreed) on party-and-party basis with certificate for one counsel.

155.  Lastly, I thank counsel for their assistance.