HO KWAN YIU v. DENNIS KWOK WING HANG AND OTHERS

HCA 1997/2019

[2022] HKCFI 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1997 OF 2019

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D E C I S I O N

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1.  This is a high profile case in slander. The parties were, at all material times, members of LegCo. The plaintiff alleges that offending words were uttered by the defendants implicating the plaintiff as being associated with triad members. The main defences are one of justification and a Reynolds defence.

2.  By a consent summons, the parties apply for a trial before a bilingual judge and a jury.  A Master directed that the application be dealt with by a judge in chambers.

Legal Principles

3.  The starting point is section 33A(1) of the High Court Ordinance, Cap 4, which provides that where on the application of any party to an action, the Court is satisfied that there is in issue a claim of slander, the action “shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents … which cannot conveniently be made with a jury.”

4.  This section is distinguishable from section 11 of the UK Defamation Act 2013 which removed the statutory presumption in favour of jury trials for defamation actions commenced in England on or after 1 January 2014.

5.  Mr Kenneth Lam (with Mr Jun Lee and Mr Vincent Shum) submit that for defamation actions, the norm is for the action to be tried with a jury if one party so chooses, unless the proviso applies: DR Esthetic Product v Next Magazine Publishing Ltd HCA 2776/2006, 21 August 2009, §13, DHCJ Au (as he then was).

6.  However, there can be no dispute that the right to a jury trial is not absolute and the matter falls within the Court’s discretion.  The modern trend is against having a jury in defamation cases, especially since introduction of the Civil Justice Reform in Hong Kong.  In exercising such discretion, the Court considers a number of factors set out: International Social Service (Hong Kong Branch) v Vision First Ltd [2017] 2 HKLRD 310, §§18-22, Chung J.

(1)  Factors militating against jury trial include:

(a)  Efficient administration of justice, including:

(i)  Prolonged examination of documents (which includes written directions on points of law prepared by the judge, documents which may be introduced in cross-examination and the like);

(ii)  Inconvenience (which includes probably difficulty of any issues involved (this sometimes requires the jury to return an “exam paper” type of special verdicts), physical bulk of trial documents, the need for detailed and minute examination of documents, cross-references to different documents (or bundles), examination in chief has to be verbal and so on);

(iii)  Additional length of trial and the closely related additional costs of jury trial;

(iv)  Trials involving areas of law which have recently been changed, or have possible room for development or change (Reynolds qualified privilege, or the defence of fair (or honest) comment, or the tort of misfeasance in public office);

(b)  The ability of a single judge to ask questions as and when needed and to read documents before trial and after trial hours (and the jury’s inability to do so);

(c)  The risk of excessive jury awards constituting an interference with freedom of speech; and

(d)  The availability of a reasoned judgment from a single judge.

(2)  Factors favouring jury trials would include:

(a)  prominent figures in public life;

(b)  questions of national interest;

(c)  actions involving issues of credibility and a party’s honour and integrity are under attack; and

(d)  the wish of one or more of the parties to have a trial with a jury.

(3)  However, the factors set out in sub-paragraph (2) above have by now been given lesser weight:

(a)  Factors (2)(a), (c) and (d) should not be elevated to too high a level; and

(b)  Factor (2)(b) now has less importance because judges are now independently selected and appointed; with the prevalent use of the judicial review procedure nowadays, judges are often perceived to be well capable of adopting a stance not shared by the government.

7.  Issues of public interest privilege is not suitable for jury trial: Gatley on Libel and Slander, 12^th ed, 2014 at §34.19, citing Reynolds v Times Newspaper [2001] 2 A.C. 127 at 205G.

8.  Where a defendant relies on Reynolds’ privilege as his defence or where the trial is likely to involve matters of mixed law and fact, the case is “peculiarly unsuited” to have a trial by jury, by reason of the confused division of functions of judge and jury, and by the jury having to find specific facts, sometimes necessitating an “exam paper” of questions for the jury to answer.  Jury trials take longer, particularly as witnesses give their evidence in chief orally; and judges are becoming increasingly concerned about the inconvenience and practical difficulties of managing trials with juries.  See Wong Tsz Yuk v 香港警務處長鄧竟成先生及律政司司長 HCA 1699/2008, 29 April 2010, Chung J at §§12-13.

9.  Whether the proviso does or does not apply in any particular case depends on the unique circumstances of that case, but the general approach to the proviso is as set out in Rothermere v Times Newspapers Ltd [1973] 1 WLR 448, where Lord Denning effectively made the following 5 points (under an almost identical provision in England):

(1)  The Court should consider whether the number of documents to be placed before the jury can be reduced to a “manageable” number by counsel making “a wise selection” (p451F-G);

(2)  The Court should consider whether the issues in dispute will fall to be determined “on a broad picture”, as opposed to “on small details” (p451G-H);

(3)  The length and complication of a trial of themselves are no bar to a jury (p451H);

(4)  The Court should consider whether the subject matter is of national importance (or matter of large public interest) (p454A); and

(5)  A judge can deal better with a mass of documents, and will give reasons which can be reviewed by a higher court, but “the result is not always better justice” (p454B).

10.  When the court considers the proviso, it should not just look at the mere number of documents but should also consider its nature: Goldsmith v Pressdram Ltd [1988] 1 WLR 64, 74-D to 75-B, Slade LJ.

Application of the legal principles

11.  On 21 July 2019, an incident (“21 July Incident”) occurred in or around the Yuen Long Station whereby protestors dressed in black physically clashed with a group of people dressed in white.

12.  At around 10:20 pm to 10:24 pm on that evening, the plaintiff was seen, and video-recorded as, shaking hands with several men dressed mostly in white at Fung Yau Street North in Yuen Long.  At that time, the plaintiff, amongst others, applauded, gave a “thumbs up” to those men, thanked them for their hard work and said that they were his heroes.  The above was widely reported in the press.

13.  Those videos went viral overnight and the plaintiff shared his thoughts on the same via Facebook live on the following day. The plaintiff also took the trouble to personally host a 45-minute long press conference on 22 July 2019 with all the major news outlets in Hong Kong to try and explain why he was seen shaking hands with the men in white.

14.  The plaintiff’s views as pleaded by D1 and D3 were said to be in favour of extreme violence against Hong Kong pro-democracy protestors, including murdering them. 

15.  The plaintiff pleaded 4 sets of offending phrases against the defendants. 

(1)  “何君堯，黑社會” [English translation: “Ho Kwan Yiu, Triad”] (“the 1^st Offending Phrase”), against all defendants;

(2)  “何君堯, 7.21 罪魁禍首” [English translation: “Junius Ho – Mastermind behind the 7.21 Incident”] (“the 2^nd Offending Phrase”), against D1 and D2 only;

(3)  “你夠膽講你唔識D黑社會同埋叫D黑社會做野?” [English translation: “Do you dare say that you do not know the triads and that you did not instruct them to do stuff?”] (“the 3^rd Offending Phrase”), against D1 only; and

“何君堯你是香港第一人渣” [English translation: “Junius Ho you are the No.1 Scum in Hong Kong”] (“the 4^th Offending Phrase”), against D2 only.

16.  D1 and D3 do not dispute the accuracy of the 1^st and 3^rd Offending Phrases, which had been video recorded.

17.  D2 claims that he did not utter the 1^st and 2^nd Offending Phrases; the 3^rd Offending Phrase does not concern him; and disputes the accuracy of the 4^th Offending Phrase.

18.  The defendants put heavy reliance on the series of events which took place before and after the 21 July Incident and various controversial political protests which took place in the same year.  The defence of D1 and D3 relies on close to 100 reports and external sources.

19.  In issue is whether the offending phrases are defamatory in nature in lowering the plaintiff’s reputation in the minds of the public, given the plaintiff’s image and reputation in the public eye.  However, the main defences are justification and a Reynolds’ defence.

20.  To assist the Court in deciding whether a jury trial should be ordered, counsel for each party has filed written submission.  Mr Sunny Chan, counsel for the plaintiff, draws to the Court’s attention that due to the reference to voluminous media reports, the highly controversial and complicated events which took place in 2019, the Court may think that a jury trial may not be appropriate.  The jury may be confused by the division between judge and jury and there is a virtual certainty that the jury will be asked to answer an “exam paper” at the end of the trial. There trial time may also be extensively prolonged.

21.  Having considered the submissions of counsel, I am of the view that this case is suitable for trial by a jury for the following reasons:

22.  Firstly, there is huge public interest in this slander action due to the following indisputable background:

(1)  At all material times, all the parties to this action were elected and serving members of Legco;

(2)  The plaintiff was/is also a solicitor in private practice, a Justice of the Peace, and a former President of the Law Society of Hong Kong. He has been re-elected and is a serving member of Legco;

(3)  D1 was/is a barrister in private practice, and the then only representative of both branches of the legal profession in Legco; and

(4)  The 21 July Incident was a significant incident in Hong Kong which is of large public interest.

23.  Secondly, in respect of the defence of justification, D1 and D3 shall seek to establish 3 facts as true at the trial (§9 of their defence):

(1)  That the plaintiff was associated with gangsters and behaved like one;

(2)  That the plaintiff was a shameful person who knew gangsters and instructed them to do things for him; and

(3)  That the plaintiff was the primary culprit or one of the culprits in the 21 July Incident.

24.  As Steven Rares, a judge of the Federal Court of Australia, has aptly stated in his article entitled “The jury in defamation trials” (2010) 33 Australian Bar Review 93:

“One of the great virtues of having a jury try the substantial factual issues in a defamation action is that, particularly in mass media cases, they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, second, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. (at p99)

In my opinion the issues which go to the heart of a defamation trial are best determined by a cross section of ordinary citizens bringing to bear their experience of life. (at p104)”

25.  Given the public interest involved and the scope of the justification issue, I am of the view that the jurors, representing the public, are the most suitable persons to determine if there was defamation or justification and decide on the reputation of the plaintiff in the public eye.

26.  Thirdly, the Reynolds’ issue involves a novel question of law, i.e. whether words uttered by members of Legco whilst they were having an “off-site” meeting outside the Legco Building in Admiralty are immune from action in the law of defamation by reason of common law absolute privilege or by reason of Article 77 of the Basic Law and/or sections 3 and 4 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (§§3.8 and 3.9 of D1 & D3’s defence).

27.  That question of law is distinct and separable from the rest of the action.  There is little risk of the jury being confused as to the role between judge and jury.

28.  The defendants further plead Reynolds qualified privilege and reply-to-attack qualified privilege (§§11 and 12 of D1 & D3’s defence).  The plaintiff’s reply contains 2 pleas of malice (§§8 and 9 of reply).  These can be dealt with by requiring the jury to return special verdicts on the allegations of malice.  The Court of Final Appeal has, in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, §§37-40 authoritatively set out the way to direct the jury.

29.  This is unlikely to be a case where the jury has to answer an “exam paper” at the end of the trial.

30.  Fourthly, this court is told that the documents involved at the trial will not be voluminous.  As a maximum, according to the defendants, the documents are likely to comprise only 3 lever-arch files, totaling about 559 pages, with some video clips concerning well-known public events.  They are already in the public domain and a juror should have little difficulty understanding them.

31.  The documents are mostly press articles, which members of the public are used to reading in their daily lives.  They can be read casually, and the contents do not contain technical terms.  Those documents do not require prolonged examination as contemplated by section 33A of the High Court Ordinance.  I am satisfied that the key documents which need to be placed before the jury are in fact manageable. 

32.  The trial is likely to take no more than 10 days with a jury and it cannot be seriously argued that the trial will be substantially prolonged because of there being a jury.

33.  Fifthly, in the cases cited in paragraphs 5-9 above, one of the parties had objected and the court had to exercise its discretion to order or not order a jury trial.  In the present case, all the parties are represented by counsel and have consented to a jury trial.  Although the court is not bound by their consent, this is a case where the parties have made an informed and correct choice.

34.  In the light of the 5 factors above, I am satisfied that this case is uniquely suitable for a jury trial.  I therefore give an order in terms of the consent summons dated 10 November 2021.

35.  I thank counsel for their assistance.